Marcic and Tait
[2012] FMCAfam 191
•23 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARCIC & TAIT | [2012] FMCAfam 191 |
| FAMILY LAW – Final parenting orders – where the children shall reside – what time the children spend with other parent – entrenched conflict – whether equal shared parental responsibility is in the children’s best interests – not in the children’s best interests to change residence – equal time not in the children’s best interests or reasonably practicable – substantial and significant time in the children’s best interests and reasonably practicable – insufficient evidence to determine dispute over schooling. |
| Family Law Act 1975 (Cth), ss.60CC(2), (3), (4), (4A), 61DA, 65DAA |
| Tait & Marcic [2009] FMCAfam 936 McCall & Clark [2009] FamCAFC 92 B & J [2009] FamCAFC 103 |
| Applicant: | MS MARCIC |
| Respondent: | MR TAIT |
| File Number: | MLC 316 of 2008 |
| Judgment of: | O'Sullivan FM |
| Hearing dates: | 17, 18, 19 October & 28 November 2011 |
| Date of Last Submission: | 9 January 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 23 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms M. Smallwood |
| Solicitors for the Applicant: | Pearsons Barristers & Solicitors |
| Counsel for the Respondent: | Mr P. O'Shannessy |
| Solicitors for the Respondent: | Kelly & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr S. Lethlean |
| Solicitors for the Independent Children’s Lawyer: | TJ Mulvany & Co |
ORDERS
That all previous parenting orders be discharged.
That the parties have equal shared parental responsibility for the children, X born (omitted) 2000 and Y born (omitted) 2003 (“the children”).
That each parent will be responsible for the day to day decisions concerning the care of the children when the children are in their respective care.
The children shall live with the father as follows:
(a)each alternate week during school term, from the cessation of school, or if not a school day from 5.00 pm Friday until the commencement of school the following Wednesday or if not a school day to 10.00 am on such Wednesday.
(b)for the school holiday periods the children shall live as follows:
(i)with each parent for one half of each school term holiday period at times agreed and failing agreement in the event that the mother’s weekend would have been the first weekend of the holidays from after school on the day school breaks up until the middle Saturday of the holidays at 10.00am and in the event that the mother’s weekend would have been the middle Saturday of the holidays from 10.00 am on the middle Saturday of the holidays to the commencement of the next school term.
(ii)with each parent for one half of the long summer holidays from break up to 10.00am on 24 December at times agreed and thereafter for one half of the remaining school holiday period commencing 26 December at times agreed and failing agreement:
(a)with the mother for the first half in 2012/ 2013 and each alternate year thereafter and for the second half in 2013/2014 and each alternate year thereafter.
(b)with the father for the second half in 2012/2013 and each alternate year thereafter and for the first half in 2013/2014 and each alternate year thereafter.
(c)During Christmas and Boxing Day the children shall live as follows:
(i)with the mother from 10.00am 24 December to 10.00am 25 December in 2012 and each alternate year thereafter and from 10.00am 25 December to 10.00am 26 December in 2013 and each alternate year thereafter.
(ii)with the father from 10.00am 25 December to 10.00am 26 December in 2012 and each alternate year thereafter and from 10.00am 24 December to 10.00am 25 December in 2013 and each alternate year thereafter.
In the event the children are not in the care of the mother, they shall spend additional time with her as follows:
(a)from 6pm the evening before Mother’s Day to 6pm Mother’s Day.
(b)on each of the mother’s and children’s birthdays, at times agreed and failing agreement, on a non-school day from 12 noon to 4pm, and on a school day from the conclusion of school to 8.00pm if they are not otherwise spending time with the children.
(c)from 2pm to 8pm on 6 January each year, being the maternal grandmother’s birthday.
(d)to attend family celebrations for the birthdays of each of the following:
(i)Mr Marcic;
(ii)Mr Marcic;
(iii)C;
(iv)A;
at times agreed and failing agreement from the conclusion of school to 8.00pm, or if a non school day from 4.00pm, to 9.00pm, with the mother to give the father not less than 14 days notice of any such event.
In the event the children are not in the care of the father, they shall spend additional time with him as follows:
(a)from 6pm the evening before Father’s Day to 6pm Father’s Day.
(b)on each of the father’s and children’s birthdays, at times agreed and failing agreement, on a non-school day from 12 noon to 4pm, and on a school day from the conclusion of school to 8.00pm if they are not otherwise spending time with the children.
(c)to attend family celebrations for the following birthdays of:
(i)Mr Tait;
(ii)Ms Tait;
(iii)Mr Tait;
(iv)Mr Tait
(v)Z;
at times agreed and failing agreement from the conclusion of school to 8.00pm, or if a non school day from 4.00pm, to 9.00pm, with the father to give the mother not less than 14 days notice of any such event.
At such further the other times with the father as may be agreed between the parties from time to time.
Subject to the above the children shall live with the mother at all other times.
All changeovers shall occur at school during school terms. In the event the changeovers occur outside school terms, the parent whose time with their children is commencing shall collect the children from the other parent's residence at the commencement of that parent's time.
Subject to paragraph (9) hereof, neither party shall attend at the residence of the other, or enter into the other parent’s home without the prior consent of the other.
Subject to paragraph (9) only the parent delivering the children to, or collecting the children from, school shall attend at the school at changeovers.
Neither parent shall discuss these Orders with the children, and the Independent Children’s Lawyer shall explain the orders to the children as soon as practicable and with the assistance of such psychologist such as Dr N, or such other person as she sees fit.
Each parent forthwith authorise the Principal of each school attended by the children from time to time to be sent to the other:
(a)a photocopy of each school report concerning each child;
(b)a photocopy of all school notices and newsletters concerning each child;
(c)an order form for each school photograph of each child.
Each parent be at liberty to attend or visit the school or schools attended by the children for events to which parents are normally invited such as sports days, concerts, parent teacher interviews and the like.
The Independent Children’s Lawyer forthwith arranged for a copy of these Orders to be provided to the Principal of any school attended by the children.
Each parent shall ensure the children attend the agreed extra-curricula activities that fall during the time the children are in the care of that parent.
The parties forthwith appoint Dr H (or such other person as may be nominated by Dr N) as the children’s Paediatrician (the Paediatrician), and the children’s General Practitioner be a GP nominated by Dr H at (omitted) Medical Centre (omitted)(the GP), and;
(a)each party is restrained from taking the children or either of them to any other medical or allied health practitioners other than the Paediatrician or the GP, save in an emergency and that the Paediatrician and the GP so appointed be provided with copies of each of the reports of Dr N and the report of Dr E and;
(b)each party shall otherwise refrain from taking the children, or either of them, to any other therapist, clinician or allied health practitioner save by prior agreement in writing save that any referral for psychological or therapeutic counselling shall be as referred by Dr N, the Paediatrician or the GP or as agreed between the parties in writing and in any event keep the other parent informed of any referral and/or attendance.
The parties shall each keep the other informed of any major illness or accident suffered by the children when in his or her care and advise the other as soon as is practicable of each treating doctor or like professional attended by the children.
The parties provide to the other at all times their respective residential and postal addresses and contact telephone numbers within 2 days of any change and inform the other of any change of residence not less than 21 days prior to such change.
That each parent advise the other no less than 7 days prior to any planned travel with the children outside the state of Victoria.
That the parents and/or the children attend upon family therapy or counselling with such psychologist as recommended by Dr N and further such counselling or therapy shall be at the parties’ joint and equal expense.
Subject to paragraph (17) each party be, and is hereby restrained by injunction from, taking the children or either of them to any other allied-medical practitioner save and except by agreement in writing and, in default of agreement, as may be referred by Dr H.
That the mother attend upon a psychiatrist specialising in personality disorders and the Independent Children’s Lawyer provide that psychiatrist with a copy of these orders, these reasons, Dr N’s reports (all three) and a copy of Dr E’s report.
The appointment of the Independent Children’s Lawyer not be discharged until the mother has provided proof to the Independent Children’s Lawyer that she is attending upon a psychiatrist and is following recommended treatment and the parties have commenced family therapy or counselling in accordance with paragraph (21).
That any written communication between the parties be restricted to child-related content or commentary only.
The mother and father, their servants and agents are restrained from taking or sending or attempting to take or send the children X born (omitted) 2000, and Y born (omitted) 2003, from the Commonwealth of Australia.
The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
The Court must immediately notify the Marshal and the Australian Federal Police Family Law Team of these orders by telephone and must as soon as possible provide a copy of these orders to the Marshal, the Australian Federal Police and the State Victoria Police.
The Court requests that until further order the Australian Federal Police place the names of the children on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders.
The father, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the mother to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
The mother, her servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the father to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
That save for the purposes of compliance with these orders both parties be restrained by injunction from discussing these proceedings or court documents within the sight or hearing of the children or permitting any other person to do so other than the Independent Children’s Lawyer.
For the purposes of a dispute arising regarding these orders, the interpretation of these orders or for the purposes of joint consultation, both parties shall participate in dispute resolution in the manner outlined below:
(a)the initiating party shall obtain a referral from a Family Relationships Centre (FRC) which shall contain a list of three dispute resolution practitioners or such other qualified practitioner located as close to halfway between their respective residences as possible;
(b)the initiating party shall then provide that list to the other party and that party shall, within seven days, communicate their nomination from the list of three;
(c)where there is no agreement as to the dispute resolution practitioner, the dispute resolution shall occur at the closest Family Relationship Centre to the midway point between the parties’ residences and where appropriate, by telephone;
(d)the parties shall, by way of communication with the nominated practitioner, organise dispute resolution at a time mutually convenient to each of the parties;
(e)that the parties equally share the costs (if any) of any dispute resolution;
(f)either party at their own nomination can be the initiating party;
(g)that there be not more than one dispute resolution in relation to any issue unless otherwise agreed between the parties.
Pursuant to s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All extant applications be otherwise dismissed and removed from the Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Marcic & Tait is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 316 of 2008
| MS MARCIC |
Applicant
And
| MR TAIT |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a case about a dispute over parenting orders under the Family Law Act 1975 (“the Act”) for X born (omitted) 2000 and Y born
(omitted) 2003 (“the children”). The applicant, Ms Marcic (“the mother”) is the children’s mother. The respondent, Mr Tait (“the father”) is the children’s father.
The evidence before the Court is the father believes the mother is a “psycho”[1]. The evidence also is that the mother “honestly believes” the children are distressed and the father is the cause of this distress.[2] Tragically the evidence of the family report writer in these proceedings is not only is the father not the cause of this distress but any change for the current arrangements might actually exacerbate the children’s problems and there is nothing ideal about any arrangement for the children.
[1] Transcript 28 November 2011 – p9- line 46
[2] Transcript 28 November 2011 – p17- lines 5-7
The evidence was also that the time the children spent with each parent was not as important for the children’s welfare as addressing more fundamental problems with and between the mother and the father who have been involved in almost endless litigation for four years.
The dynamic behind the years of litigation between the parties appears to be twofold. First, there is the palpable frustration of the father and his almost all consuming (and understandable) desire to spend more time with the children. The father sees the mother as deliberately inhibiting, if not abjectly obstructing, the time that he spends (and in his view, should spend) with the children. Secondly, the other dynamic behind the years of litigation is the mother’s no less palpable angst in dealing with the father, who she experiences as, at times angry, and often times, controlling.
There is no doubt that both parents love the children deeply. However, the features of the parents relationship just noted, and clearly on display throughout the evidence, testify to the patent inability of the parties to date to co-parent, in a co-operative and appropriate manner, and/or to do so in a way that hasn’t impacted adversely on the children.
Sadly unless the dynamics of the parties’ relationship and the responsibility of each of the parents for this are addressed, then great harm risks being done to the children.
In these reasons for judgment I will endeavour to explain why I have made the orders I make in relation to where the children live and how much time they will spend with the other parent. This is because, notwithstanding what the independent expert said, this was all the mother and father appeared interested in.
This case has involved an agonising decision. This is not because of the mother’s behaviour, which deserves condemnation, nor because the father who (otherwise I am satisfied wants what he believes is best for the children but) has shown himself incapable of controlling his behaviour towards the mother. It is because of the parent’s conflict and what it has done to the children, for which they both should stand condemned. This decision has been made more difficult because “there is nothing ideal about any arrangement for [the] children”[3] and unless the parents change, the situation for the children is not going to get any better.
[3] Transcript 28 November 2011- p11, line 11-13
Background
Where in these reasons there is a statement of fact, those statements are, unless otherwise specified, findings of fact.
The wife is 42 years of age and the husband is 46 years of age.
The parties married on (omitted) 1994, separated on 22 October 2007 and were divorced in 2009.
As set out in Tait & Marcic [2009] FMCAfam 936 at the start of the relationship the father, was a (occupation omitted) by trade. The father commenced a business that (business omitted). The mother worked full time as a (occupation omitted) and both parties used their joint endeavours to further their lives and build a better future.
X, the first child of the marriage was born on (omitted) 2000. The mother had worked full time as a (occupation omitted) up and until shortly after the birth of the first child. The mother returned to work as a part time (occupation omitted) in late 2002 after maternity leave until the birth of the second child.
On the arrival of the second child the mother again stopped work outside the home. Y, the second child of the marriage, was born on (omitted) 2003.
Save as set out above during the marriage the parties had traditional roles. The father devoted his time to his business and the mother, who was employed initially as a (occupation omitted), carried out home duties.
After separation the mother remained in the former matrimonial home with the children. Proceedings were commenced for both parenting and property orders.
There were interim parenting orders made by consent in January 2008 for the children to spend time with the father inter alia each alternate weekend. The mother obtained an interim intervention order in February 2008 and applied to discharge the previous interim parenting orders.
In March 2008 the father filed a response to that application along with a contravention application. There were interim parenting orders made by the Court and the father discontinued his contravention application. There was also an intervention order made for the mother by consent without admissions by the father.
Between April and May 2008 the parties attended for interviews for a private family report and psychiatric report. In May 2008 there were further interim parenting orders made by the Court. In the last half of 2008 there were further proceedings regarding intervention orders and in early 2009 the parties attended for a second family report which was released in early February 2009.
After a number of court dates, the appointment of an Independent Children’s Lawyer, interim court orders and the adjournment of a previous trial date, final parenting orders were made by consent on
19 February 2009 providing for inter alia a week about arrangement for the children.
The parties’ dispute over division of matrimonial property continued and the trial on that issue proceeded in late May 2009 and was adjourned part heard to August 2009.
Also in the middle of 2009 the mother obtained, without the father’s knowledge or consent a referral from Dr C for X to be seen by a psychologist Dr J. X attended at least 9 appointments with Dr J between July and November 2009 without the father’s knowledge or consent.
Then, and following a 5 day property trial, on 18 December 2009 reasons for decision were delivered (see Tait v Marcic [2009] FMCAfam 936). The parties later brought in minutes of orders (as directed) to give effect to those reasons for decision.[4]
[4] see orders 22 February 2010
After the conclusion of the property trial, and whilst the Court’s decision on that issue was reserved, the father raised the issue of which secondary school X would attend with the mother. There ensued an exchange of communication between the parties on this issue which has to date still not resolved the matter.
In late 2009 and into 2010 the children attended upon various counsellors and psychologists. The eldest child continued to see
Dr J up and until October 2010 and still without the father’s knowledge or consent and the youngest child was seen by Ms G for counselling.
In July 2010 the mother obtained an interim intervention order against the father which named the children and the matter was listed for a contested hearing in December 2010.
On 25 November 2010 the mother took X to the (omitted) Hospital and Adolescent Health Unit. At or around this time the children were to spend time with the father in accordance with the extant final orders but did not do so.
On 29 November 2010 the mother filed an urgent application for parenting orders for the children and so began the most recent instalment in the almost continuous court proceedings between the parties since separation.
There was a response filed by the father on 6 December 2010. On
9 December 2010 there were interim parenting orders made for the reasons given ex tempore[5] and the matter was adjourned to 22 February 2011. Those interim parenting orders suspended the weekabout time with orders made by consent in February 2009 and provided for the children to live with the mother and spend time with the father from after school Thursday to before school the following Tuesday each alternate week.[5] see Tait & Marcic [2010] FMCAfam 1447.
Also in December 2010 intervention order proceedings brought by the mother were resolved on the basis that there was a final family violence order made on 15 December 2010 in favour of the mother against the father.[6]
[6] The children were not included as affected family members.
On 22 February 2011 there were interim parenting orders made including interim orders by consent. Those interim parenting orders by consent provided for the children to live with the mother and spend time with the father from after school Friday to before school the following Wednesday each alternate week. The matter was also fixed for trial on 17 October 2011.
Since the final parenting orders were made on 19 February 2009 the father has re-partnered with Ms T (who has 2 children from a previous relationship). At the trial the Court was told they intend to live together in 2012.The mother has sold the former matrimonial home and moved with the children. The mother is now working again.
X is now in Grade 6 at (omitted) Primary School and has an interest in dance whilst Y is in Grade 3 also at (omitted) Primary School. The children live and spend time with their parents pursuant to the extant interim parenting orders.
In the months leading up to the trial information came to the attention of the parties that the eldest child (X) had been accessing inappropriate material on the internet. The parties agreed on arrangements for that child to be seen by a counsellor about those issues and for the family report writer who had been appointed pursuant to the interim consent orders to liaise with the counsellor and the parties on any issues arising. At trial the evidence of the family report writer, which I accept, was if these parents had been working together it would have been a normal problem that they confronted and talked about. However that evidence was also there was no follow up required for the child from a clinical perspective.
Finally whilst the parties, by virtue of their respective positions, were also in dispute over school arrangements for the eldest child there was little evidence presented at trial beyond the rationale for the preferences of each of the parties and that child’s choices that would assist the Court in determining the issue.
The trial
The trial occurred over the course of 17, 18, 19 October 2011 and then was adjourned to 28 November 2011. Ms Smallwood of Counsel appeared on behalf of the mother, Mr O’Shannessey of Counsel appeared on behalf of the father and Mr Lethlean of Counsel appeared on behalf of the Independent Children’s Lawyer.
At the commencement of the trial the following interim orders were made on 17 October 2011:
“THE COURT ORDERS THAT:
1.Until further Order, the father and mother, and his/her servants and agents, be and are hereby restrained by injunction from discussing the within proceedings with or in the presence or hearing of the children, X born (omitted) 2000 and Y born (omitted) 2003 (“the children”) and from permitting any other person so to do.
BY CONSENT THE COURT ORDERS UPON THE UNDERTAKING OF COUNSEL:
2.Counsel on behalf of the parties may uplift the subpoenaed material for the purposes of making photocopies for the purpose of cross examination only.
3.The matter be adjourned part heard on 18 October 2011 at the Federal Magistrates Court of Australia at Melbourne commencing at 9.30 am.”
On 19 October 2011 further orders were made:
“1.The Independent Children’s Lawyer be permitted to provide to Dr N all of the parties court material filed, since their most recent appointments with her including the parties respective outline of case documents and proposed minutes sought.
2.Dr N be permitted to discuss these proceedings with Dr J prior to the adjourned date.
3.The final hearing be adjourned part-heard to Monday,
28 November 2011 at the Federal Magistrates Court of Australia at Melbourne commencing at 10.00 am.”
After the conclusion of the evidence directions were made for the filing of written submissions and the matter was otherwise adjourned.
Material relied upon
Counsel for the mother told the Court her client relied on her:
a)amended initiating application filed on 13 October 2011;
b)affidavit e-filed on 13 October 2011;
c)affidavit of Ms K e-filed on 6 December 2010;
d)affidavit of Dr N filed by the Independent Children’s Lawyer on 6 October 2011; and
e)extract of transcript of proceedings, evidence of the family consultant, Mr E dated 8 December 2010.
Counsel for the father told the Court his client relied on his:
a)further amended response filed 6 October 2011;
b)affidavit filed on 6 October 2011;
c)affidavit of Ms T filed 6 October 2011;
d)affidavit of Dr E filed 2 February 2009; and
e)affidavit of Dr N annexing 3 reports filed on 6 October 2011.
Counsel for the Independent Children’s Lawyer told the Court his instructor relied on the:
a)Affidavit of Dr E filed 2 February 2009;
b)Affidavit of Dr N filed on 6 October 2011.
The Court has also had regard to a number of documents that were tendered in evidence. These exhibits were:
·A1 – Letter dated 16 October 2011 from (omitted) School of Dance;
·
R1 - Letter from mother’s solicitor to father’s solicitor dated
2 December 2010 tendered on 9 December 2010;
·R2 – father’s minute of proposed orders;
·R3 – Dr C’s report dated 8 December 2010;
·R4 – Dr J’s records;
·R5 – (omitted) Health Records dated 10 December 2010;
·R6 – X’s mobile telephone records from June 2011 to August 2011;
·R7 – Record of text messages on 6 November 2010;
·R8 – Annexure C of the mother’s affidavit page 29, evidence 2;
·R9 – Annexure C of mother’s affidavit page 31, evidence 4;
·ICL1 – Independent Children’s Lawyers proposed minute of orders;
·ICL2 – Letter from the ICL to the parties solicitors dated 18 February 2011;
·ICL3 – Agreed chronology;
Orders sought by the parties
The mother
In her amended application filed 13 October 2011 the mother sought the following final orders:
“1.That paragraph 4 of the final children’s orders filed
19 February 2009 be discharged.
2.That the children X born (omitted) 2001 and Y born (omitted) 2003 live with the mother.
3.That the children spend time with and communicate with the father as follows:
(a)School Holidays:
(i) Each alternate weekend from the cessation of school (or if not a school day 5 pm Thursday) until the commencement of school the following Tuesday (if not a school day then 10 am on Tuesday);
(ii) The rotation of time with the father and mother shall continue uninterrupted by the school holidays, when the next term commences;
(iii) During the school term vacation from he conclusion of school on the last day of term when the holidays begin, until 6pm on the Saturday in the middle of the school vacation the first week of each term holidays, excluding summer vacation and the Easter period from Good Friday at 10 am until Easter Monday at 7 pm;
(b) Easter:
(i) For Easter 2012 from 10 am Good Friday until 10am Easter Sunday, and each alternate year thereafter with the father;
(ii) Easter 2013 from 10 am Easter Sunday until 7pm Easter Monday or the commencement of school if it is a school day the following day, and each alternate year thereafter with the father;
(iii) Easter 2012 from 10 am Easter Sunday until Easter Monday 7 pm or until the commencement of school on Tuesday morning, if the following day is a school day with the Mother and each alternate year thereafter;
(iv) Easter 2013 from 10 am Good Friday until 10 am Easter Sunday 10 am (sic) and each alternate year thereafter;
(c) Parent’s birthdays:
(i) That the children will spend time with each of the parents on their respective birthdays from 6 pm the night before their birthday until 6 pm the night of the parent’s birthday.
(d) Education:
(i) That the child MIA attend the following secondary school if a place is offered to her, in the following order of priority:
(a)(omitted) College;
(b)(omitted) Secondary School;
(c)(omitted) Secondary College.
4.Such further orders and direction as this Honourable Court deems fit.”
In final submissions filed on her behalf, the mother’s position was unchanged.[7] In final submissions made on her behalf the mother was scathing of the father for his changed position/s throughout the proceedings.[8] Whilst it is tempting to be distracted by this, ultimately the parties arrived at positions which mirrored the other which given what I have referred to above is not surprising.
[7] see paragraph 1 of submissions filed 9 January 2012
[8] see paragraphs 2-3 of wife submissions filed 9 January 2012
The father
The father had filed a response on 6 December 2010, an amended response on 18 February 2011 and a further amended response on
6 October 2011. In his further amended response the father sought the following orders:
“1.That all previous parenting orders made in these proceedings be discharged, save as to paragraphs 2, 3, 4, 5 and 11 of the orders made 16 January 2008 (being the Watch List and passport orders).
2.That the husband have sole parental responsibility for the children:
· X born (omitted) 2000; and
· Y born (omitted) 2003, (“the children”)
concerning education and medical matters for the children and that otherwise the parents have equal shared parental responsibility for the children.
3.That save in an emergency the husband consult the wife about education and medical matters for the children and consider her views, if any, prior to making any major decision of parental responsibility concerning those matters.
4.That the children live with the husband.
5.That, from one month after these orders came into effect the children live with the wife during school term on each alternate weekend from after school or 3.30 pm on Friday to the commencement of school or 9.00 am on the following Monday.
6.For the school holiday periods the child shall live as follows:
(a)With each parent for one half of each school term holiday period at times agreed and failing agreement in the event that the mother’s weekend would have been the first weekend of the holidays from after school on the day school breaks up until the middle Saturday of the holidays at 10.00 am and in the event that the mother’s weekend would have been the middle Saturday of the holidays from 10.00 am on the middle Saturday of the holidays to the commencement of the next school term.
(b)with ach parent for one half of the long summer holidays from break up to 10.00 am on 24 December at times agreed and thereafter for one half of the remaining school holiday period commencing 26 December at times agreed and failing agreement:
(i) with the wife for the first half in 2011/2012 and each alternate year thereafter and for the second half in 2012/2013 and each alternate year thereafter.
(ii) with the husband for the second half in 2011/2012 and each alternate year thereafter and for the first half in 2012/2013 and each alternate year thereafter.
7.During Christmas and Boxing day the children shall live as follows:
(a)with the wife form 10.000 am 24 December to 10.00
25 December in 2011 and each alternate year thereafter and from 10.00 am 25 December to 10.00 am 26 December in 2012 and each alternate year thereafter.
(b)with the husband from 10.00 am 25 December to 10.00 am 26 December in 2011 and each alternate year thereafter and from 10.00 am 24 December to 10.00 am 25 December 2012 and each alternate year thereafter.
Special occasions
8.In the event the children are not in the care of the wife, they shall spend additional time with her as follows:
(a)From 6 pm the evening before Mother’s Day to 6pm Mother’s Day;
(b)On each of the wife’s and children’s birthdays, at times agreed and failing agreement, on a non-school day from 12noon to 4pm, and on a school day from the conclusion of school to 8.00 pm.
(c)from 2pm to 8 pm on 6 January each year, being the maternal grandmother’s birthday.
(d)to attend family celebrations for the birthdays of the following:
(i) Mr Marcic;
(ii) Mr Marcic;
(iii) C;
(iv) A;
at times agreed and failing agreement from he conclusion of school to 8.00 pm, or if a non school day from 4.00 pm to 9.00 pm with the mother to give the father not less than
14 days notice of any such event.
9.In the event the children are not in the care of the father, they shall spend additional time with him as follows:
(a)from 6pm the evening before Father’s Day to 6 pm Father’s Day.
(b)on each of the husband’s and children’s birthdays, at times agreed and failing agreement, on a non-school day from 12.00 noon to 4 pm and on a school day from the conclusion of school to 8.00 pm.
(c)to attend family celebrations of the following birthdays of:
(i) Mr Tait;
(ii) Ms Tait;
(iii) Mr Tait;
(iv) Mr Tait;
(v) Z (brother or sister on the way);
at times agreed and failing agreement from the conclusion of school to 8.00 pm, or if a non school day from 4.00 pm to 9.00 pm with the husband to give the mother not less than 14 days notice of any such event.
10.All changeovers shall occur at school during school terms, the parent whose time with their children is commencing shall collect the children from the other parent’s residence at the commencement of the parent’s time unless there is an Intervention Order in place in which case the parent who has the benefit of the Intervention Order shall be responsible for collection and return of the children to the other parent at a location chosen by the parent who has the Intervention Order against them.
Restraints
11.Subject to paragraph 10 hereof, neither party shall attend at the residence of the other, or enter into the other parent’s home without the prior consent of the other.
12.Subject to paragraph 17 hereof, only the parent delivering the children to, or collecting the children from, school shall attend at the school at changeovers and the wife be and is hereby restrained from attending the children’s school for any purpose (including any attendance during school holidays to assist in any of classroom at the school or to assist in the canteen or any other school service) other than for the delivery of the children to, or collection of the children from school for her time with the children and further the wife be restrained from attending Monday morning assembly except when it is in her time to deliver the children to school every second Monday.
13.That the wife be restrained from working or taking employment at any school that the children attend.
14.Neither parent shall discuss these orders with the children, and the Independent Children’s Lawyer shall explain the orders to the children as soon as practicable and with the help of such psychologist such as Dr N, Ms B or such other person as he sees fit.
15.Both parents be and are hereby restrained from showing these orders, or any documents filed in this court by any period other than as provided for in these orders.
School and extra curricular issues
16.Each parent forthwith authorise the Principal of each school attended by the children from time to time to be sent to the other:
(a)a photocopy of each school report concerning each child;
(b)a photocopy of all school notices concerning each child;
(c)an order form for each school photograph of each child.
17.Each parent be at liberty to attend or visit the school or schools attended by the children for events to which parents are normally invited such as sports days, concerts, parent teacher interviews and the like.
18.The Independent Children’s Lawyer forthwith arrange for a copy of these orders to be provided to the Principal of any school attended by the children.
19.Each parent shall ensure the children attend the agreed extra-circular activities that fall during the time the children are in the care of that parent.
20.The children shall continue to attend (omitted) Primary School for the duration of their primary schooling and neither parent shall change the children’s school without the consent of the other parent. Further, each parent shall forthwith advise the other in the event that the children or either o them does not attend school.
21.That the children attend either of (omitted) College, (omitted) High School or (omitted) High School for their secondary education.
Medical issues
22.The parties herewith appoint Dr H (or such other person as may be nominated by Dr N or the Independent Children’s Lawyer) as the children’s General Practitioner/Paediatrician, and each party is restrained from taking the children or either of them to any other practitioner other than the person so appointed, save in an emergency and that person so appointed by provided with copies of each of the reports of Dr N and the report of Dr E.
23.Each party shall otherwise refrain from taking the children, or either of them to any other therapist or clinician save by prior agreement in writing save that any referral for psychological or therapeutic counselling shall be as referred to by Dr N or Dr H or be agreed between the parties.
24.The husband and the wife each keep each other informed of any major illness or accident suffered by the children when in his or her care and advise the other as soon as is practicable of each treating doctor or like professional attended by the children.
Provision of information
25.The parties provide to the other at all times their respective residential and postal addresses and contact telephone numbers within 2 days of any change and inform the other of any change of residence not less than 21 days prior to such change.
26.That each parent advise the other no less than 7 days prior to any planned travel with the children outside the state of Victoria.
Other Issues
27.That the parents and/or the children attend upon family therapy or counselling with such psychologist as recommended by Dr N and further such counselling or therapy be at the parties joint and equal expense.
28.That in the event that the wife issues a further application for, or seeks an extension of her current Intervention Order, the husband be at liberty to produce in evidence in those proceedings any report prepared by an expert in these proceedings.
29.That the wife pay the husband’s costs of and incidental to these proceedings on an indemnity basis.”
In final submissions made on his behalf, the father sought the following orders:
“These orders are as sought in the husband’s further amended response filed 6 Oct 2011 and in the husband’s outline of case, save where changed, and those changes have been high lighted in bold
1.That all previous parenting orders made in these proceedings be discharged, save as to paragraphs 2, 3, 4, 5 and 11 of the orders made 16 January 2008 (being the Watch List and passport orders).
2.That the Husband have sole parental responsibility for the children;
·X born (omitted) 2000; and
·Y born (omitted) 2003, (“the children”),
concerning education and medical matters for the children and that otherwise the parents have equal shared parental responsibility for the children.
3.That save in an emergency the Husband consult the Wife about education and medical matters for the children and consider her views, if any, prior to making any major decision of parental responsibility concerning those matters.
4.That the children live with the Husband.
5.That, from one month after these orders come into effect, the children live with the Wife during school term on each alternate weekend from after school or 3.30pm on Friday to the commencement of school or 9.00am the following Wednesday.
6.For the school holiday periods the children shall live as follows:
(a)With each parent for one half of each school term holiday period at times agreed and failing agreement in the event that the mother’s weekend would have been the first weekend of the holidays from after school on the day school breaks up until the middle Saturday of the holidays at 10.00am and in the event that the mother’s weekend would have been the middle Saturday of the holidays from 10.00 am on the middle Saturday of the holidays to the commencement of the next school term.
(b)With each parent for one half of the long summer holidays from break up to 10.00am on 24 December at times agreed and thereafter for one half of the remaining school holiday period commencing
26 December at times agreed and failing agreement:(i) With the Wife for the first half in 2011/ 2012 and each alternate year thereafter and for the second half in 2012/2013 and each alternate year thereafter.
(ii) With the Husband for the second half in 2011/2012 and each alternate year thereafter and for the first half in 2012/2013 and each alternate year thereafter.
7.During Christmas and Boxing Day the children shall live as follows:
(a)With the Wife from 10.00am 24 December to 10.00am 25 December in 2011 and each alternate year thereafter and from 10.00am 25 December to 10.00am 26 December in 2012 and each alternate year thereafter.
(b)With the Husband from 10.00am 25 December to 10.00am 26 December in 2011 and each alternate year thereafter and from 10.00am 24 December to 10.00am 25 December in 2012 and each alternate year thereafter.
SPECIAL OCCASIONS
8.In the event the children are not in the care of the Wife, they shall spend additional time with her as follows:
(a)From 6pm the evening before Mother’s Day to 6pm Mother’s Day.
(b)On each of the Wife’s and children’s birthdays, at times agreed and failing agreement, on a non-school day from 12 noon to 4pm, and on a school day from the conclusion of school to 8.00pm.
(c)From 2pm to 8pm on 6 January each year, being the maternal grandmother’s birthday.
(d)To attend family celebrations for the birthdays of each of the following:
(i) Mr Marcic;
(ii) Mr Marcic;
(iii) C;
(iv) A;
at times agreed and failing agreement from the conclusion of school to 8.00pm, or if a non school day from 4.00pm, to 9.00pm, with the mother to give the father not less than 14 days notice of any such event.
9.In the event the children are not in the care of the Father, they shall spend additional time with him as follows:
(a)From 6pm the evening before Father’s Day to 6pm Father’s Day.
(b)On each of the Husband’s and children’s birthdays, at times agreed and failing agreement, on a non-school day from 12 noon to 4pm, and on a school day from the conclusion of school to 8.00pm.
(c)To attend family celebrations for the following birthdays of:
(i) Mr Tait;
(ii) Ms Tait;
(iii) Mr Tait;
(iv) Mr Tait;
(v) Z; (brother or sister on the way)
at times agreed and failing agreement from the conclusion of school to 8.00pm, or if a non school day from 4.00pm, to 9.00pm, with the father to give the mother not less than 14 days notice of any such event.
10.All changeovers shall occur at school during school terms. In the event the changeovers occur outside school terms, the parent whose time with their children is commencing shall collect the children from the other parent's residence at the commencement of that parent's time unless there is an Intervention Order in place in which case the parent who has the benefit of the Intervention Order shall be responsible for collection and return of the children to the other parent at a location chosen by the parent who has the Intervention Order against them.
RESTRAINTS
11.Subject to paragraph 10 hereof, neither party shall attend at the residence of the other, or enter into the other parent’s home without the prior consent of the other.
12.Subject to paragraph 17 hereof, only the parent delivering the children to, or collecting the children from, school shall attend at the school at changeovers and the Wife be and is hereby restrained from attending the children’s school for any purpose (including any attendance during school hours to assist in any of classrooms at the school or to assist in the canteen or any other school service) other than for the delivery of the children to, or collection of the children from, school for her time with the children and further the Wife be restrained from attending Monday morning assembly except when it is in her time to deliver the children to school every second Monday.
13.That the Wife be restrained from working or taking employment at any school that the children attend.
14.Neither parent shall discuss these Orders with the children, and the ICL shall explain the orders to the children as soon as practicable and with the help of such Psychologist such as Dr N, Ms B or such other person as he sees fit.
15.Both parents be and are hereby restrained from showing these Orders, or any documents filed in this Court to any person other than as provided for in these Orders.
SCHOOL AND EXTRA CURRICULAR ISSUES
16.Each parent forthwith authorise the Principal of each school attended by the children from time to time to be sent to the other:
(a)A photocopy of each school report concerning each child;
(b)A photocopy of all school notices concerning each child;
(c)An order form for each school photograph of each child.
17.Each parent be at liberty to attend or visit the school or schools attended by the children for events to which parents are normally invited such as sports days, concerts, parent teacher interviews and the like.
18.The ICL forthwith arranged for a copy of these Orders to be provided to the Principal of any school attended by the children.
19.Each parent shall ensure the children attend the agreed extra-curricula activities that fall during the time the children are in the care of that parent.
20.The children shall continue to attend (omitted) Primary School for the duration of their primary schooling and neither parent shall change the children’s school without the consent of the other parent. Further, each parent shall forthwith advise the other in the event that the children or either of them does not attend school.
21.That the husband and wife, forthwith, do all things and sign all documents to cause applications to be made for X to attend for secondary school;
21.1First, (omitted) High School, and if X cannot attend then;
21.2Second, (omitted) College and if X cannot attend (omitted) then;
21.3Thirdly, (omitted) College, and if X cannot attend (omitted) then;
21.4(omitted) High School.
21.5But provided that the enrolment at (omitted) be solely at the husband’s expense.
MEDICAL ISSUES
22.The parties herewith appoint Dr H (or such other person as may be nominated by Dr N or the Independent Children’s Lawyer) as the children’s Paediatrician (the Paediatrician), and the children’s General Practitioner be (omitted) Medical Centre (the GP), and;
22.1each party is restrained from taking the children or either of them to any other practitioners other than the Paediatrician or the GP, save in an emergency and that the Paediatrician and the GP so appointed be provided with copies of each of the reports of Dr N and the report of Dr E and;
22.2 Each party shall otherwise refrain from taking the children, or either of them, to any other therapist or clinician save by prior agreement in writing save that any referral for psychological or therapeutic counselling shall be as referred by Dr N, the Paediatrician or the GP or as agreed between the parties in writing and in any event keep the other parent informed of any referral and/or attendance.
22.3That in the event of a change of residence the husband be and is permitted to have the children attend upon such therapist as he chooses.
23.The Husband and the Wife each keep the other informed of any major illness or accident suffered by the children when in his or her care and advise the other as soon as is practicable of each treating doctor or like professional attended by the children.
PROVISION OF INFORMATION
24.The parties provide to the other at all times their respective residential and postal addresses and contact telephone numbers within 2 days of any change and inform the other of any change of residence not less than 21 days prior to such change.
25.That each parent advise the other no less than 7 days prior to any planned travel with the children outside the state of Victoria.
OTHER ISSUES
26.That the parents and/or the children attend upon family therapy or counselling with such psychologist as recommended by Dr N and further such counselling or therapy shall be at the parties’ joint and equal expense.
27.That in the event that the Wife issues a further Application for, or seeks an extension of her current Intervention Order, the Husband be at liberty to produce in evidence in those proceedings any report prepared by an expert in these proceedings.”
Orders sought by the Independent Children’s Lawyer
As noted earlier there was an Independent Children’s Lawyer appointed who had been involved with the parties during the parenting proceedings in 2009. The Independent Children’s Lawyer was privately funded. On this issue at least, as was acknowledged by the Independent Children’s Lawyer the parties should be commended.
The Independent Children’s Lawyer filed an Outline of Case document on 14 October 2011 which sought the following orders:
“1.The Independent Children’s Lawyer seeks an interim order during the proceedings and until judgment in the following terms:
Each of the parties for themselves their servants and agents be and are hereby restrained from informing either of the children of any accept of the hearing in this matter and including but not limited to evidence and/or negotiations and/or any other comments save and except that in response to a question from either or both of the children, each of the parents shall inform either or both of the children in words to the effect of “Tim will tell you when he thinks its right what is going on and when the judge makes up his mind Tim will tell you what the decision is.”
2.The Independent Children’s Lawyer is not at this stage of the process able to express in any definite view save and except that as presently informed on the evidence, he concurs tentatively with the words of Dr N “on balance and with considerable reservation, it would be my recommendation that the present arrangements stay in place. This is certainly not ideal but may be the best compromise in the circumstances.”
3.The Independent Children’s Lawyer is concerned that in the context wherein the final orders made by consent on
19 February 2009 have proved continuously problematical, and there appears to be no improvement in the underlying distrust and apparent resistance one parent for or against the other, that a judicial determination is more like to be required than not. Certainly a primary home for the girls may be required and as at this date the Independent Children’s Lawyer submits that he may only be in a position to discharge his statutory obligation to express a view to assist the Court on the testing of evidence.”
As noted earlier at the start of the trial there were interim orders made which addressed the issue raised in paragraph [1] of the above extract. After the trial, the Independent Children’s Lawyer indicated in his final submissions filed on 13 December 2011 that his first preference, based on the evidence before the Court, was the “re-establishment of a shared care 7/7 arrangement.”[9] However the submissions then went onto state:
“It is submitted, that if the Court finds that the husband's residence, and home life with Ms T and her children, could provide a more stable environment in the long term, and thereby offset the “short-term” damaging effects as outlined by Dr N, then a change of residence to the husband on the basis of a 9/5 fortnightly cycle would then apply as to the ICL’s position, noting his primary preference as set out in Paragraph 35 of these Submissions.”[10]
[9] see paragraph 35 of the Independent Children’s Lawyers submissions
[10] see paragraph 43 of the Independent Children’s Lawyers submissions
The Independent Children’s Lawyer’s submissions contained the following final orders:
·
That the parties have equal shared parental responsibility for the children, X, born (omitted) 2000, and Y, born
(omitted) 2003, save and except in relation to the education of the children in the event of a dispute shall be the responsibility of the father.
· That, if the Court finds that the short-term effects on the children are likely to be psychologically harmful in the event of residing with the husband, then the children live with the parties on a week-about basis from after school Friday until the commencement of school the following Friday.
· That, if the Court finds that the long-term effects on the children are less damaging by living with the husband in a “blended” family, and this outweighs the potential for short-term harm as opined by Dr N, then it is submitted that the Court consider a 9/5 fortnightly cycle in favour of residence with the husband.
· That, notwithstanding any other order, the husband be responsible for making decisions in relation to the children’s education save and except for his doing all things necessary to assist in the applications of X for (omitted) and (omitted) respectively at first instance.
· That the husband be at liberty to appoint Dr H as the children’s General Practitioner, and each party be, and is hereby restrained by injunction from, taking the children or either of them to any other practitioner, save and except in an emergency.
· That each party be, and is hereby restrained by injunction from, taking the children or either of them to any other allied-medical practitioner save and except by agreement in writing and, in default of agreement, as may be referred by Dr H.
· That the wife attend upon a psychiatrist specialising in personality disorders, follow the recommendations of such professional in relation to duration and treatment, and provide evidence of same periodically to the ICL for a time to be determined by the Court.
· That any written communication between the parties be restricted to child-related content or commentary only.
·
That the ICL (consistent with the interim order made on
17 October 2011) explain the final orders of the Court to the children, and then the order for the appointment of the ICL be discharged at a time determined by the Court.”
Psychiatric Report
During the course of the proceedings between the parties in 2008/2009 there were orders made for the mother and father to be seen by a psychiatrist, Dr E. The psychiatric report that was prepared as a result was in evidence before the Court in these proceedings under an affidavit filed 2 February 2009.
As contained in that report the psychiatrist’s opinion was the father did not present with a psychiatric condition. Conversely, the psychiatric report in relation to the mother said by way of diagnosis that:
“OPINION
Diagnosis – Ms Marcic has a form of attachment disorder. Her intense emotional need, sense of inner emptiness, and vivid and intense experiences of Mr Tait would fulfil some criteria for a borderline style of personality. Her various inner experiences are projected on to the children. As such, she sees herself as the protector of them, and will continue to watch over them and perform the role of a sentinel in respect to their safety.”
By way of conclusion, having interviewed both parties at that time and in light of the abovementioned diagnosis the following conclusion was given in the psychiatric report:
“1.Mr Tait and Ms Marcic present as very different people.
2.Mr Tait is likely to be a forthright, hard-driving, highly ambitious, striving man. He is likely to be emotionally intense and as Ms Marcic has indicated, possibly prone to outbursts of temper and frustration. He is someone who is not likely to suffer fools gladly, but has undertaken various courses within his business experience to attempt to learn to manage himself and others better. He does not impress me as the figure of violence and threat that the Wife has described. Nonetheless, it is likely that he has understated his level of anger, frustration and animosity. There are some indications that he may well not have been as involved with the children as he would see it. His business commitments may well have overshadowed his involvement with his family. He is likely to have occupied the position of a traditional (omitted) man and provider for his family.
3.Ms Marcic is a vulnerable woman who impresses as continuing to struggle with unresolved issues of abandonment and loss. Her inner sense of emotional emptiness heightened by the loss of (omitted), was played out in the context of the relationship between herself and Mr Tait. For reasons described, she came to view him not only as a man who was of strong conviction and temperament, but rather a deeply threatening, violent figure. As such, she has come to experience her marriage, like herself, as an empty thing which was never filled. Her quest to change her husband has been singularly unsuccessful and is likely to have been perceived by him as her attempt to control him, and this has provoked him.
4.I have viewed Dr N Family Report. It is noted that despite Ms Marcic’s perception of the husband, the children appear to have a loving and trusting relationship with him. He does not impress me as a threat to the children. His frustrations with the Wife may well be not much more than that. My impression of the Husband is that he has every intention of ensuring that Ms Marcic continues to live a life of some comfort in the matrimonial home. He simply wishes to establish his relationship with the children independently of her constant hovering and interference.
5.Dr N has recommended counselling for the couple. Whilst I would agree with that proposition, I do not feel confident that this will necessarily bring about a resolution of their difficulties for the reasons described above. Ms Marcic’s constant fear and confusion about Mr Tait, and her over-protectiveness of the children, serve as an unwitting provocation on her behalf of the Husband.
6.Whilst it is for the Court to decide ultimately the contact arrangements, my professional view is that a more formalised set of contact arrangements minimising the amount of contact between the parties, at least in the interim period, may well assist them to move to an arrangement whereby more contact can occur between the children and their father (which is what they appear to want). My impression is that if this is a matter that is left up to the Mother, she will continue to temporise because of her inability to resolve her experience of the Husband. Her account also indicated considerable resentment about the fact that she has been the primary caregiver and that in a sense, she believes Mr Tait has no right now to suddenly want more contact with the children.
7.I have not interviewed the children and my report needs to be read accordingly.”
In light of what has transpired since and the evidence before the Court in these proceedings the psychiatric report both in relation to the diagnosis of the father and mother and the conclusions reached therein now appears to have been prescient.
Family Report
Pursuant to interim orders made on 22 February 2011, the family report writer who had previously been engaged to prepare a family report on this family was re-engaged. The first report was dated 7 May 2008, the second report was dated 12 February 2009 and the most recent family report was dated 6 August 2011. These reports were filed with the Court and in evidence at the trial under an affidavit filed
6 October 2011.
The first report was released on 7 May 2008. In the introduction to that report it was said:
“According to Ms Marcic’s documents, she is seeking that Mr Tait’s time with the children is supervised. In interview, she stated that this proposal was considered soon after she discovered video surveillance equipment at her home (February 2008) and then took out an intervention order against Mr Tait. Now she stated that she has concerns about Mr Tait’s temper, believes the children are apprehensive of him, and fears for their physical and emotional safety, but did not specify any particular proposals for parenting arrangements.
Mr Tait alleges that Ms Marcic is resistant to him spending time with the children, places obstacles and arguments around his time with them, and is generally obstructive to it. He is seeking a shared week-about arrangement from after school each Friday.”
In the first report the family report writer provided the following summary and made the following recommendations:
“My impression of the children was of two delightful girls with strong well-formed personalities, with each having a distinct sense of autonomy. It is a credit to both parents that their previous focus on the children has allowed them to develop into such well-adjusted happy confident children.
My assessment suggested that the children have had to make some major adjustments to the separation of their parents.
The separation was experienced initially as a period of shock, with associated feelings of worry and threats to their previously held security. I would anticipate that their reactions might well have encompassed, as other children commonly do in this situation, some regression in their behaviour and a need for reassurance.
Fortunately, both girls now impressed as having negotiated the changes to their lives without obvious ill-effect.
However, the degree of overt parental conflict and frequently displayed animosity is the biggest problem presently confronting these children. I consider that the issue of shared care in this family has much less importance than an immediate and urgent need to reduce that conflict and animosity.
It is well established that a high degree of parental conflict is one of the most serious risk factors for children. The research is unequivocal that children in these situations have difficulty with their own emotional survival and often experience chronic anxiety. As a result the energy that should be put into their physical, emotional, psychological and intellectual development is diminished.
Despite the parties’ apparent devotion to the children, their focus on feelings of anger towards the other parent seemed all-consuming. They also seemed to be ignorant about the effects on the children of their conflict, and to blame the other parent entirely for it. I would strongly caution both parents that it is their conflict which is most likely to have a detrimental effect on the children, both in the short and long term.
Unfortunately, both parties are so caught up in the conflict that they are unable to see the damage they are inflicting on their children. While at the time of assessment, it appeared that the children had negotiated their parents’ separation reasonably well, I would anticipate that if the parents do not take care to contain their acrimony towards each other these girls will start to display some serious symptoms of poor adjustment.
Unlike Dr B, I can see no other mechanism to ease this conflict than couples therapy / mediation / psycho-education about the effects of conflict on the children. I would strongly recommend that the parties attend on a psychologist such as Ms B to enable this (her address is: (omitted) I believe it would be unhelpful for these parties to be seen separately.
Both girls demonstrated secure and confident attachments to their parents, and impressed as having considerable personal resources and resiliency skills, and relatively strong intellectual and emotional development. But for the conflict between the parents, shared care would be the best arrangement for these children.
It is likely that the parents will not be able to completely put aside their antipathy for the other. However, I consider that if X and Y are not exposed to conflict at changeovers, and there are mechanisms in place for the parents to contain and deal with conflict appropriately, shared care is likely to be successful.”
The family report writer prepared a second report dated 12 February 2009. At the commencement of the second report it was noted:
“Since the previous report, the parties have also attended on Dr E to undergo psychiatric assessment.
Dr E interviewed each party. He concluded that Mr Tait did not present with any psychiatric condition. However, he was of the opinion that Ms Marcic has a form of attachment disorder and that her “intense emotional need, sense of inner emptiness, and vivid and intense experiences of Mr Tait would fulfil some criteria for a borderline style of personality.
Dr E identified some strong themes in Ms Marcic’s presentation and some features often associated with Borderline Personality Disorder, such as her feeling a deep sense of emotional emptiness that has never been fulfilled. Another feature he described of Ms Marcic was having polarised responses within relationships, such as idealising or vilifying others without shades in between.
I noted that Dr E interviewed the parties in May 2008.
At the time, Ms Marcic was attending (omitted) and believed that through it she had come to understand herself. Dr E considered that this was unlikely and that she would continue to search for methods to fill her feelings of emptiness. This prediction seemed to have some accuracy in that Ms Marcic at this assessment had ceased attending (omitted) and was now involved in family violence counselling.
Also significant for this assessment was Dr E’s opinion that Ms Marcic projected her inner experiences onto the children, and he saw her taking the children to a range of therapists for minor issues because of her unresolved inner experiences.
In relation to her relationship with Mr Tait, Dr E further identified that Ms Marcic had difficulty resolving idealised images of Mr S with the lived experience of a relationship with Mr Tait. He described a polarised reaction and an inability to incorporate ideas that people are a mixture of positive and negative qualities. I further noted that Dr E was of the opinion that Ms Marcic’s experiences and perceptions of Mr Tait are negatively skewed and that “any infraction or sign of irritation becomes experienced as violent or threatening”.
I consider that Dr E’s assessment of Ms Marcic provides an invaluable context in which many of Ms Marcic’s allegations raised at this assessment should be viewed.”
In observing the mother for the preparation of this second report it was noted:
“Psychological assessment of Ms Marcic suggested that she is substantially unaware of how her behaviour may have contributed to the conflict between the parties. Many of her examples show an egocentric viewpoint that does not incorporate how her behaviour impacts on others. I am concerned that she shows little or no insight into how her behaviour may be affecting the children. Objective analysis of her examples suggests that she may be constructing situations that force the children into conflict and/or pressuring them to reject their father.”
In observing the father for the preparation of that second report it was noted:
“[Mr Tait’s] focus however at this time was on his belief that Ms Marcic’s behaviour shows serious psychopathology which affects the children. He argued that Ms Marcic shows an unnatural preoccupation with the children’s health and that she invents disorders which simply don’t exist. To illustrate he explained that Ms Marcic insisted that the children have dietary allergies, Y had feet problems, and both girls have head lice, and that none of these claims are true.
He considers Ms Marcic requires some treatment for her behaviour (“Ms Marcic needs some help. The children need to be protected from her”) and that the children, but particularly X, seem confused and distressed by their mother’s behaviour. He alleges that Ms Marcic takes a highly moral approach, is extremely rigid and pathologises normal behaviour.
…
Mr Tait again impressed as clear, coherent and direct in his speech and thoughts. He showed frustration and irritation at Ms Marcic, and sometimes this was difficult for him to contain.”
In the family report writer’s second report she provided the following summary and made the following recommendations:
“Although in this dispute there are still high levels of emotion between the parents, in some ways the issues seem clearer.
Mr Tait is concerned that Ms Marcic’s preoccupation with health issues (that he does not believe exist) is having a detrimental effect on the girls, particularly X.
Ms Marcic continues to maintain the children have a poor relationship with their father and traces her perception of emotional disturbance to their time with him.
Assessment of Ms Marcic indicated a number of themes that were concerning, such as ambivalence towards Mr Tait (on one hand claiming that he was violent and abusive and yet being disappointed in his rejection of reconciling with her, and putting her desire for personal communication with Mr Tait as a priority). Some of her allegations seemed irrational or poorly supported.
I would agree with Dr E’s assessment of the range and extent of Ms Marcic’s personality difficulties. In particular, I share Dr E's concerns about her tendency to medicalise the children’s complaints, as it has the potential to directly and adversely affect the children.
Whilst personality difficulties are notoriously difficult to treat, I consider it important that Ms Marcic seek professional assistance to address this tendency at least, because without such assistance it is likely to deteriorate. Such assistance may also be beneficial in relation to some of the other difficulties Dr E referred to.
At this assessment it was again apparent that both girls had strong, independent personalities. They were socially adept, confident, animated, happy children who impressed as emotionally and psychologically resilient. They appear to have strong, intimate relationships with both parents.
Again, I consider that overt parental conflict and frequently displayed animosity is one of the primary emotional risks for these children. Unfortunately my previous recommendations to reduce face-to-face contact between the parents have not been adopted. Changeovers have continued with both parents present, and the potential for conflict in such situations heightens the tension and stress for the children.
Again I strongly recommend that the children not be exposed to both parents at the same time, even if this requires the assistance of a third party or formal service for changeover. Like Dr E, I would emphasize that these children would be better served by parenting arrangements that ensure their parents do not meet for changeovers. As Y has now commenced school I recommend that all changeovers occur through school, and that there be specific restraints on the other parent attending at the same time. I also recommend that Mr Tait arrange a new pet for his home, rather than trying to share the family dog.
Dr E’s caution that Ms Marcic is projecting her own concerns onto the children seems to me to have some weight, as do Ms B’s concerns about Ms Marcic’s mental health status. I would recommend that Ms Marcic attend on someone with expertise in this area, such as Dr I at the (omitted) Clinic.
One mechanism that might alleviate the situation with the children’s health is the appointment of a commonly agreed paediatrician, such as Dr H at the (omitted) Clinic,
I would also recommend that the parties continue to attend on Ms B to provide a structured forum to discuss parenting issues and improve their communication.
The children appear to have close relationships with each parent and they are clearly happy, healthy and relatively well-adjusted. I consider they would do best in a broadly shared residence arrangement, but provided they spend significant periods with each parent, the exact proportions of the sharing are not particularly important.
Minimising the potential for conflict between the parents is the most important aspect of any arrangements for these children. As well as changeovers without the parents being together, the detail of the orders and arrangements will need to be precise and exact, or ambiguities will allow the potential for conflict to erupt.”
The family report writer produced a third report dated 6 August 2011. In preparing this third report it was noted:
“Mr Tait is now seeking that the children live mainly with him and have a five night block with their mother (after school Friday to before school the following Wednesday each alternate week).
Ms Marcic is proposing the children live with her and that the time spent with their father is decided by the Court.
X is now in grade 5 and her choice of secondary school for 2013 is also pending. Ms Marcic prefers that X attends (omitted) School, (omitted) College (omitted) Grammar. Mr Tait prefers (omitted) College or (omitted) High School. I understand from documentation provided that he had previously proposed (omitted) or (omitted) Secondary College.”
The family report writer provided the following summary and made the following recommendations:
“Again in this family the issue of parental conflict and how it affects the children is concerning. The unmitigated conflict between the parents is a significant risk factor for these children, and very likely to continue to be so.
The mechanisms intended to address the parental problems have been unsuccessful, and the parents' inability to appreciate the effects of their ongoing conflict on the children reflects poorly on them. It is very unfortunate that they did not continue with Ms B, and Ms B’s involvement is now untenable because she has seen Mr Tait and Ms T subsequently.
It could be that both parents are actively contributing to the conflict and often the tendency is to claim that if there is conflict then it must be caused by both parents. Obviously however, this is not necessarily so.
Since 2008 Ms Marcic has consistently claimed that the children are fearful of their father and do not wish to spend time with him. She has raised a multitude of issues and allegations against him since their separation. At each time I have seen this family, Ms Marcic has maintained serious allegations that Mr Tait is a risk to the children, and each assessment I have made suggests that her perception of the children’s relationship with their father is distorted and her allegations exaggerated. She has maintained a narrative around ‘safeness’ and ‘unsafeness’ for the children in their father’s presence, but the examples she has given have consistently undermined her arguments.
Mr Tait argues that he has a wonderful relationship with the children and it is Ms Marcic’s behaviour that causes all the problems for the children. He believes that Ms Marcic is motivated to oust him from the children’s lives. He argues that she has some serious psychopathology that causes her to pressure the children, and exaggerate and dramatize any situation that she can. He believes that he provides stability and a counter-balance to the influences of their mother.
Again psychological assessment of Ms Marcic indicated that she is very suggestible and inclined to exaggerate. She appears to be inclined to pathologise the children’s responses and to attribute all problems to Mr Tait.
There were again strong themes of Ms Marcic’s difficulty adjusting to the separation and in particular, Mr Tait’s new relationship.
I note that Dr E’s assessment in May 2008 was of Ms Marcic having a form of attachment disorder where she has an “intense emotional need” and a “sense of inner emptiness”. Dr E saw Ms Marcic as having experiences and perceptions of Mr Tait that are negatively skewed and that “any infraction or sign of irritation becomes experienced as violent or threatening”. It was Dr E’s opinion that Ms Marcic projected her inner experiences onto the children, and he saw her taking the children to a range of therapists for minor issues because of her unresolved inner experiences.
It is my opinion that Dr E’s assessment of Ms Marcic explains much about the dynamic of the ongoing conflict between the parties and the present dispute.
Ms Marcic appears to be intent on holding Mr Tait responsible for any behaviour that she can interpret as problematic. She seems oblivious to how her behaviour and beliefs may be contributing to the pressure the children feel. In much of her account, there is a sense that she is questioning the children and taking any negative interpretation she can from them. I consider that it is very likely that the children respond to her openness to criticism of the father and that her sympathy for their complaints is irresistible to them.
I consider that Ms Marcic’s mental health is likely to be a significant factor in both the parental conflict and the problems exhibited by the children.
Mr Tait impressed as very frustrated with Ms Marcic and the damage he perceives that she is causing the children. Assessment of Mr Tait indicated that he is a man who probably has a sharp intense anger, and the girls may be worried about making him angry. However, I do not think this is the most significant problem in this family or for these children. It is my assessment that these children have long been exposed to Ms Marcic’s interpretation of their father as angry and promotion of the idea of being unsafe, and that exposure has tended to magnify the perception that Mr Tait's anger is a problem. The discrepancies between the various accounts of the breakfast incident, and Y's inability to recall one instance of her being scared of her father despite claiming that she was scared, are examples of this magnification of perception.
The children’s accounts of their father denigrating their mother may be similarly magnified because of the dynamic between Ms Marcic and the girls, in particular her receptiveness to such information. This is not to say that Mr Tait has not been critical of Ms Marcic, but the perception of the extent of such criticism may be magnified like his anger.
From the information available at this point in time, it would seem that if Ms Marcic’s historical allegations had been valid, or her proposals for the children taken up, such as limited supervised time, the children would likely have little relationship with father now. Happily this is not so.
I have now assessed this family at three time points. Each time the children have shown an alignment with their mother and exposure to her allegations about their father, but their behaviour has also demonstrated the opposite, that is, they experience their father as devoted, warm and loving.
Consequently, it is my assessment that the pressure on these children emanates mainly from their mother. As already mentioned, Ms Marcic seems oblivious to how her beliefs and negative connotations of their father and his household is confusing and disturbing for the children and conflicts with their reality.
I am very concerned about how Ms Marcic interprets things. For the last two assessments she claimed that the children were reluctant to come to see me and yet their behaviour showed the opposite. Ms Marcic claimed that the children were frightened of their father, but each time I have seen them their behaviour has completely discounted this (and similarly Mr E’s observation in December 2010).
A strong theme that emerged in my assessment of X was that she feels pressured and distressed. I consider that there are a number of layers to this.
One layer is the parental conflict which has been sustained and unmitigated. Mechanisms to alleviate the effects on the children (i.e. parental counselling and ensuring that arrangements keep the parents apart) have been very limited in their success.
Another layer is how Ms Marcic interprets and distorts information. When parents tell children different things it can be very confusing for them as they depend on their parents to provide an understanding of their environment. Ms Marcic's allegations and negative interpretation of the girls’ experiences and relationship with their father are an added burden for these children, but particularly for X.
Another layer, which I consider is especially pertinent to the present dispute, is X’s difficulties adjusting to having a stepfamily. It was my assessment that X likes Ms T but finds sharing her father’s attention difficult and that it is galling for her to see her father’s budding relationship with L. The fundamental problem is that X wants to dominate her father’s attention and struggles to share it. This is not unusual for her situation but it does emphasise that the problems for X are not that she is rejecting of her father and does not want to see him as claimed by Ms Marcic, but rather is an expression of how connected she feels to him.
A further concern is how Ms Marcic provides a ‘construction’ of X’s problems without recognising her part in them.
The children certainly have good relationships with both parents. However the significant questions are if the children live mainly with one parent how is this going to affect their relationship with their other parent.
If they live mainly with their mother, the children are likely to be faced with even more influence and pressure to reject their father and be more open to influences that might exaggerate or pathologise their behaviour. They obviously have a very strong emotional attachment to her, but I consider there is the long term problem of what Ms Marcic says to the children and how she says it.
If they live mainly with their father, this would be directly contrary to their expressed wishes and likely to have effects on their burgeoning independence, self-identity, assertiveness and confidence. While they have a strong emotional attachment to their father, it is my assessment that they feel closer to their mother, and they are likely to view any decision this way as punitive. There is also the issue that X is struggling with her adjustment to having a stepfamily, in addition to feelings of jealousy about Ms T and her children dominating her father’s time and attention. X may also feel some distress about feeling disloyal towards her mother for her relationships with them.
The history of parental conflict strongly indicates that it will continue unabated whatever living arrangements are put in place. I consider that provided these children spend significant periods with each parent, the exact proportions of the time are not particularly important.
For obvious reasons I could not recommend that the children live with Ms Marcic any more than they do now, but on balance and with considerable reservations, it would be my recommendation that the present arrangements stay in place. This is certainly not ideal but may be the best compromise in the circumstances.
I would also refer X back to Dr J as I consider that she requires some support. However, both parents should be able to consult with Dr J, as this might provide her with a broader perspective of X’s difficulties.
With some time and perhaps some extra attention from her father, I expect that X’s adjustment problems with her stepfamily will improve.”
I now turn to the issue of where the children should live and what time they should spend with the other parent.
Parenting Time
When deciding upon orders for time between the children and each of the parents, further specific requirements are set out in the Act, if orders are to be made providing for ‘equal shared parental responsibility’ for the children. Section 65DAA of the Act states:
“65DAA [Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances]
Equal time
(1)[Court must consider whether equal time is in the best interests of the child] 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.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)[Court must consider whether the child spending substantial and significant time with each parent is in the best interests of the child] 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; and
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.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)[Substantial and significant time] 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.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)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 (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future capacity–the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.”
In MRR v GR [2010] HCA 4 the High Court addressed the relationship between s.65DAA and s.61DA of the Act stating:
“[15]Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1).”
Section 65DAA provides a set of criteria which must be fulfilled in cases where an order for equal shared parental responsibility has been made and consideration is being given to equal time or substantial or significant time. As the High Court said in MRR v GR [2010] HCA 4:
“[13]It is only where both questions [in s.65DAA(1)(a) and (b)] are answered in the affirmative that consideration may be given, under par (c), to the making of an order. … the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.”
The requirement of reasonable practicality ‘requires a practical assessment of whether equal time parenting is feasible’.
Consideration
The position of the Independent Children’s Lawyer in submissions was somewhat confusing. Submissions were made that the “re-establishment of a shared care 7/7 arrangement” was the first preference. Leaving to one side for present purposes that this was not an order sought by either the mother or the father (and accepting that it had been something initially considered by the family report writer as “balancing all the factors”) the merit of re-establishing something which the experience of the parties has demonstrated has failed to serve the children’s best interests and seen the parents return to Court was never properly explained. This does raise real doubts about the efficacy of such an arrangement for the children into the future.
That submission is also troubling because the Independent Children’s Lawyer noted the “compromised state of parental communication” had “remained static since proceedings began in 2008” and the Independent Children’s Lawyer had acknowledged the final orders made by the Court in February 2009 had proved “continuously problematical.”
As is clear from these reasons the Independent Children’s Lawyer’s submissions then went onto proffer an alternative to what was said to be its “first preference.” This was that the children live with the father and spend substantial and significant time with the mother, if long term effects on the children living with the father are less damaging then the short term harm identified in the evidence.
In relation to that submission I note in B & J [2009] FamCAFC 103 at paragraph 160 it was said:
“160. …Litigation about their [children’s] welfare is not focused on determining rights and obligations arising from past events, but rather is directed to finding the arrangement that will advance their interest in the future.”
In Hall & Hall (1979) FLC 90-713 at p78,824 it was said:
“…It is permissible for any court to take a longer view of a child’s future than the immediate picture before it; but this must be done with caution. In the end the decision must accord with the overall welfare of the child. It might not always be legitimate to look so far into the future that a child should be taken from surroundings where [the child] is well and happy, and placed into other surroundings, on some conjectural basis that in the ultimate he will prosper better in the later surroundings. Each case must depend on its own circumstances in this respect.”
In light of those comments it is timely to return to and note that in B & J [2009] FamCAFC 103 at paragraph 161 it was said:
“161.However, as Mr Justice Wilson said in the 2002 Atkin Lecture to the Reform Club, London (“The Misnomer of Family Law”):
It is difficult or lawyers to look to the future. They do better at inquests into the past. Concepts like the burden and standard of proof, which are part of their alphabet, do not fit into an assessment of future benefits and risks…”
The difficulty confronting the Court in this matter was aptly summarised in the family report writer’s evidence before the Court.[32] Contrary to the submissions of the Independent Children’s Lawyer and the father, the family report writer did not recommend equal time for the children with both of their parents. At its highest, the evidence of the family report writer was this was ‘an option’ but the matter wasn’t pursued beyond this in cross examination. The evidence of the family report writer set out earlier makes that clear and it wasn’t her recommendation.
[32] see paragraphs 92-94 above and mother’s submissions referred to at paragraph 96 above
The authorities referred to earlier in these reasons make clear the Court cannot make a parenting order unless it is satisfied it is in the best interests of the children. The difficulties confronting the submissions of the Independent Children’s Lawyer and the father in this matter is that there is a lot of hard evidence against the position(s) they each contended for in final submissions and little, if any, by way of hard evidence to take the step, into the unknown they each urge upon the Court, in changing the children’s residence.
The conundrum in this case is the only certainty is the conflict between the parents has damaged the children and will continue to do so unless it stops.
The toxic nature of the relationship between the parties and that the father holds the mother in contempt was underscored by the father ‘texting’ the mother during the course of the trial. This behaviour painted the father in poor light as in relation to the mother did the concerns expressed by the family report writer about the mother’s behaviour and its impact on the children along with the evidence referred to earlier.
The mother, on the kindest interpretation of her evidence has little understanding of the importance of the father to the children and I am satisfied, she has taken steps designed to minimise his involvement with them.
The evidence in this case from the family report writer is there is more than a probability that the children would be adversely affected were the Court is to consider changing their residence from the mother to the father. The case for the change of their residence by the Independent Children’s Lawyer and the father, from the mother to the father, is based on only a possibility they will benefit. However the negatives associated with such a move are more readily identified and the weight of evidence against such a move more definitive.
The focus of the Courts inquiry must be on the best interests of the children. The submissions of the Independent Children’s Lawyer could be said to have adopted a punitive approach in light of the evidence of the mother’s behaviour, but at worst, ignored or at best hypothesised away, the evidence of the family report writer about the impact of the change it contended for on the children.
Those submissions failed to deal adequately with the evidence, which
I accept, of the family report writer when asked by Counsel for the Independent Children’s Lawyer about long term gain from a change in residence. The evidence of the family report writer was “[s]hort term, a lot of damage with a change of residence.” [33] The report writer went onto state in cross examination that “I’m not sure you can say there’s a lot of long term gain.”[34][33] transcript 28 November 2011 p-30 line 29-30
[34] transcript 28 November 2011 p-30 line 26
When asked about alternatives given the identified problems with the children in the mother’s primary care, the best the family report writer could offer was the possibility that equal time might balance all the factors. In neither her third report nor in her evidence before the Court did the family report writer embrace that option or the option(s) contended for by the Independent Children’s Lawyer or the father.
The evidence of the family report writer which I accept was if the children live with father it would be contrary to the children’s express wishes (or views) and likely to have effects upon their independence, self identity, assertiveness and confidence. They already have a strong attachment to their father and the family report writer’s evidence on this was clear.
The advantages and disadvantages of both children living with the mother and spending time with the father or living with the father and spending time with the mother were carefully considered by the family report writer and her evidence before the Court makes that clear.
There is no reason not to accept the recommendation in her most recent report that the arrangements remain as is.Notwithstanding the submissions of the father and the Independent Children’s Lawyer, I am unable to elevate the possibilities and probabilities that they rely on, to the level necessary to warrant a change in the residence of the children. There is simply not enough evidence to persuade the Court that it is in the children’s best interests.
Since I propose to make an order for equal shared parental responsibility the Court is required when it makes an order, or intends to make an order, for equal shared parental responsibility to consider whether equal time will be in the best interests of the children and reasonably practicable or if not equal time then whether substantial and significant time would be in the best interests of the children and reasonably practicable.
The Independent Children’s Lawyer posits equal time as its first preference but in the alternative for the children to spend 9 nights with the father and 5 with the mother each fortnight. Neither the mother or the father proposes equal time notwithstanding that the distance the parties residences would otherwise make this reasonably practicable.
Equal time would require both parents to be child focused, have a high degree of co-operation, be equally committed to the other parent having an ongoing relationship with the children, be able to communicate regarding the children’s affairs or welfare, have a minimal amount of conflict and have respect for one another. That is not possible in this case. For the reasons set out above in the discussion of the s.60CC factors and the evidence of the family report writer I am not satisfied an order for equal time is in the children’s best interests.
Whether the father can sustain the children’s relationship with him in circumstances where there is no emotional support for it from the mother seems an open question, unless there is regular time with the father, and I note the evidence of the family report writer about the children’s good relationship with him.
Having regard to the parties positions this is a case where the parties live close enough for substantial and significant time and even in the face of the evidence of the effect of the mother’s recorded behaviour on the children’s relationship with the father this is not so significant that if the children were to be spending time in the father’s household on a regular basis it couldn’t be maintained.
The evidence of the family report writer which has been set out above in considerable detail makes clear from the point of view of the best interests of the children that this matter is not a matter about how much time the children spend with both parents. However it is in their best interests and reasonably practicable for the children to live with the mother and spend substantial and significant time with the father.
The family report writer made clear in her evidence before the Court she couldn’t recommend a change in the children’s residence or that they spend more time with the mother. In accordance with the extant interim orders and in the absence of any other evidence since the children have been living with the mother and spending time with the father from after school on Friday to before school the following Wednesday each alternate week those are appropriate orders. Notwithstanding the mother’s proposal, I can see no reason in light of the discussion set out above and the conclusions already reached to change the start and finish times for that time.
Both parties sought parenting orders be made, which as their respective proposals made clear, were intended to operate in conjunction with certain of the February 2009 orders. In the circumstances it is more appropriate to discharge all extant orders and replicate the orders the parties by their proposals agreed should continue. This applies to the passport and airport watch list orders. Both parties’ positions provided for the children to spend half school holidays, Easter and Christmas holidays along with time on the parent’s birthdays and other special occasions for the children. As noted earlier the family report writer had given clear evidence of the need in the children’s best interests for there to be restrictions on the medical practitioners the children could be taken to along with the need for the mother to attend upon a psychiatrist and these were orders sought by the Independent Children’s Lawyer which are in the children’s best interests. This also applies to the order for family therapy and for settlement of disputes. Finally there should be an order for the Independent Children’s Lawyer to explain the orders to the children and his appointment not be discharged until the mother has attended upon a psychiatrist for treatment for the diagnosed attachment disorder and that practitioner be provided with these reasons and the orders by the Independent Children’s Lawyer.
In coming to the conclusion on the living and spend time arrangements, and lest it be thought that this outcome is some sort of perverse reward for the mother’s behaviour, as it is not. The family report writer’s evidence was the mother needs psychiatric treatment and I accept her evidence in that regard. I also, for the same reasons given by the family report writer, intend to make an order for Dr H or such other medical practitioner nominated by Dr N to be the practitioner(s) to whom the children will be taken except in the case of an emergency.
The conclusion to which the Court is driven by binding authorities and the position of the parties is nonetheless troubling because of the behaviour of the parties.
Issue of schooling for X
As noted earlier whilst the parties, by virtue of their respective positions, were also in dispute over school arrangements for the eldest child there was little evidence presented at trial beyond the rationale for the preferences of each of the parties and that child’s choices that would assist the Court in determining the issue.
The Act, by its terms, anticipates and expects that parents who have equal shared parental responsibility make joint and equal decisions with respect to major issues decision, see s.65DAC.
“Major issues decisions” are defined in s.4 of the legislation and of note with respect to these proceedings includes decisions as to the child’s education, both current and future.
The decision I am called upon to make with respect to the eldest child’s schooling is based upon the child’s best interests being the primary consideration. That is not to suggest that parental views are irrelevant, far from it. It is also not to suggest that the impact, emotional, practical or otherwise, upon parents is irrelevant.
As has been observed by the Full Court in cases such as Kelly & Kelly [2002] FamCA 379, as well as perhaps the most oft quoted authority with respect to children’s schooling, Re G: Children’s Schooling (2000) FC 93-025, and to quote the Full Court in that, in the latter decision:
“Although there is no legal presumption in favour of the resident parent and, correspondingly, no hurdle or onus faced by the mother parent that is not to say that the reality of the child residing predominantly with one parent has no relevance.”
The father in his affidavit filed 6 October 2011 set out his evidence concerning the school issue. However that evidence in large part set out his attempts to communicate with the mother regarding which school the eldest child should attend and little evidence to assist the Court to decide the issue.
The mother in her affidavit filed 13 October 2011 set out her evidence on this issue. Similar to the evidence given by the father on this matter the mother’s evidence was characterised by repeated claims about what she claimed the eldest child wanted and provided little, if anything, by way of evidence about the schools to assist the Court to decide the issue.
The submissions of the Independent Children’s Lawyer identified the dilemma facing the Court in light of the above. In those submissions the Independent Children’s Lawyer contended:
“In relation to X’s secondary education, given the evidence before the Court, the ICL respectfully submits that he is not in a position to submit a preference for a school and, respectfully, suggests it may be dangerous for the Court to decide the actual school.”
It will be seen from a comparison of what the parties presented to the family report writer on this part of their dispute that the parents positions changed again by the time the matter reached trial.[35]
[35] See page 35 above.
It appeared at trial at least the parties were agreed that steps would be taken to ensure applications would be made to enrol X in the (omitted) College and then (omitted) High School in (omitted) and after this the parties couldn’t agree. The final position of the parties however, has been set out earlier and where they differ they offered little justification from the point of view of benefit to the child.
The family report makes clear the family report writer knew the issue of schooling was “pending”. The family report writer didn’t opine on the issue of which school the eldest child should attend. The family report writer was not asked by Counsel for either party to opine on the issue or proffer a view on which of the parties proposals at that time should be preferred. There is no independent evidence on this issue.
With respect to schooling, there is little to set apart the proposals. There are also a number of difficulties with the contentions of both parties on this issue. One is, the absence of independent evidence to support the position they contended for where they couldn’t agree.
In the circumstances I accept the position of the Independent Children’s Lawyer it is not safe to do so and decline to make an order on the issue in light of this and the conclusion on parental responsibility reached earlier.
Conclusion
This case was remarkable because of the concerns expressed by the family report writer about the damage done to the children because of the ongoing conflict between the mother and the father.
As set out at the beginning of these reasons this case has been troubling as whilst the parents appeared only interested in the time the children spent in each of their homes, the evidence of the family report writer of the damage being done to their children appeared to go unheeded. These parties share a measure of culpability for the situation in which they find themselves. However, the Court is pessimistic about the likelihood the parties will recognise this.
As the family report writer said in her evidence before the Court, there is “no ideal outcome” in this case. However for the reasons set out above I am satisfied the orders set out at the beginning of these reasons for decision are in the children’s best interests.
I certify that the preceding two hundred and sixty-two (262) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Date: 23 April 2012
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