Marlay and Marlay

[2008] FamCA 1099

FAMILY COURT OF AUSTRALIA

MARLAY & MARLAY [2008] FamCA 1099

FAMILY LAW – CHILDREN – Interim parenting proceedings – large number of orders sought by mother unsuited to interim hearing – issues selected for adjudication limited to whether orders would be made for 15 year old son and determination of time to be spent by other two children during the upcoming school holidays and pending final hearing

Family Law Act 1975 (Cth)

Goode v Goode (2006) FLC 93-286
Cowling and Cowling (1998) FLC 92-801

APPLICANT: Ms Marlay

RESPONDENT: Mr Marlay

FILE NUMBER: CSC 526 of 2007

DATE DELIVERED: 17 December 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Cairns

JUDGMENT OF: Moore J

HEARING DATE: 11 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamwood

SOLICITOR FOR THE APPLICANT: Miller Harris Lawyers

COUNSEL FOR THE RESPONDENT: Mrs Pack SC

SOLICITOR FOR THE RESPONDENT: Marino Moller Lawyers

Orders

Pending further order:

1.The interim orders of 25 June 2007 are discharged.

2.The child B born … September 1994 is to live with his father and spend time with his mother:

(i)each alternate weekend for at least three (3) hours on Saturday or Sunday at times arranged with his mother; and

(ii)from 9am 24 December 2008 to 3pm 25 December 2008.

3.The child D born … September 1994 is to live:

(i)during school terms with her father and with her mother week about;

(ii)during the 2008/09 Christmas school holidays with her mother from the date of these orders to 3pm 25 December and from 11 January 2009 to 18 January 2009 and otherwise with her father;

(iii)for one half of all later school holiday periods with each parent. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CSC 526  of 2007

MS MARLAY

Applicant

And

MR MARLAY

Respondent

REASONS FOR JUDGMENT

Parties

1. The parties are the parents of four children:

   J (17) born in January 1991
   R (15) born in June 1993
   B (14) born in September 1994
   D (14) born in September 1994

2. They married in February 1988 and they separated on 11 April 2007. 

Court proceedings

1. On 6 June 2007, shortly following separation, the father instituted proceedings in the Federal Magistrates Court.  At the time he sought orders for equal shared parental responsibility and for equal time week about with each parent; it is not clear what orders the mother was seeking.  In his evidence the father refers to ‘numerous’ applications and affidavits having been filed but the course the proceedings have taken is not apparent from what has been relied on here.  This much is apparent:

   (a)On 25 June 2007 interim orders were made for equal shared parental responsibility and equal time and a family report was ordered. 

   (b)The first family report, based on material and interviews conducted in August with the parents and all four children became available in early September 2007.  I shall come to that shortly. 

   (c)On 16 June 2008 further orders were made for supervision of the interim orders by a Family Consultant pursuant to s 65L, the supervising reporter was directed to provide a short report, and the parties were restrained from discussing issues with the children. 

   (e)On 22 August 2008 the second family report became available.  On this occasion the report was based on interviews conducted 23 and 25 June and 28 July with the parents while B and D were the only children seen. 

   (f)Subsequently the matter was transferred to this Court and then on 3 December the mother filed the application which is the subject of this decision.  Her application seeks interim orders about the arrangements for three of the children – R, B and D - between now and the final hearing which probably will occur during the May circuit.  She proposes a suite of 39 interim orders, many with sub-paragraphs, which range from what was termed ‘joint long term responsibility’ to orders directed to the regulation of the behaviour of parents or the definition of parental responsibilities in a variety of directions. 

   (g)Her proposal for interim orders providing for ‘joint long term responsibility’ [per proposed order 1] which is to be exercised ‘in consultation with each other for making decisions about the long term care, welfare and development’ of the children strikes me as incongruent with the supposed need to make many other orders proposed: for example, as they relate to medical emergencies; family emergencies; school events; restraints from discussing the proceedings, denigrating the other parent and using the children as messengers; overseas travel; counselling; methods of communication between the parents; the mother to take the children to the dentist in September every year; the parents undertaking parenting courses; and a series of steps designed to impose a ‘yearly review’ with a ‘family counsellor, dispute resolution practitioner or arbitrator’ before any further application is made to the Court. 

   (h)At the outset I refused to take these applications as being unsuited to an interim hearing and I requested the mother’s counsel to select those requiring adjudication at this stage, which was done.  It came down to decisions about how the children would spend their upcoming Christmas school holidays and what should be their living arrangements during school terms and Mother’s Day pending the final hearing. 

Orders sought

1. A summary of the mother’s proposed orders [per Orders 2, 3, 4(a)(b), 4 (e) and (f) (amended orally), and 13] follows:

   School terms:

   ·R and B would continue to live at their boarding school in Cairns and they would spend their weekends alternating between their parents’ households;

   ·D would live with her mother and spend every second weekend from Friday afternoon to Monday morning with her father;

   School holidays

   ·The children would be with their mother in the first week and with their father in the second week of holidays at the end of terms 1, 2 and 3;

   ·For Christmas 2008/09 the children would be with the mother until 3pm Christmas Day, with their father until 11 January, again with their mother from 11 January until 18 January, and with their father from 18 January until they return to school. 

   Mothers Day

   ·If not in her care on that day according to orders, the children would be collected from the father’s home 5pm Saturday and the boys returned to school on Sunday afternoon. 

2. The father proposes there be no orders about R – which aligns with J’s position - and those children would negotiate directly with their mother what time they would spend with her.  His proposals relate only to B and D, summarised as follows:

   School terms

   ·D continue to live with each parent week about;

   ·B would live with his father and spend time with his mother each alternate weekend for some time during each alternate weekend, such as for 3 hours;

   School holidays

   ·No proposal put for holidays at the end of terms 1, 2, 3

   ·During the forthcoming Christmas school holidays:

   oB would be with his mother from 9am Christmas Eve to 3pm Christmas Day and for the remainder of the holidays he would spend time each alternate weekend with his mother for at least 3 hours on Saturday or Sunday;

   oD would spend from 14 December to 3pm Christmas Day and from 11 January to 18 January with her mother and all other time with her father.

Mother’s Day

·No proposal put.

Evidence

1. The material relied upon is not extensive although it reveals complicated dynamics and is not without quite troubling aspects.  There are two affidavits from each parent and the two family reports mentioned earlier. 

Approach

1. Before coming to the decisions identified something should be said about the approach stipulated by the Act according to a number of provisions in Part VII which can be summarised this way: 

   a)the best interests of the child are the paramount consideration [s 60CA];

   b)spanning and guiding the process are stated objects [ensuring children have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests; protecting children from exposure to physical or psychological harm; ensuring they receive adequate and proper parenting to help them achieve their potential; and ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s 60B(1)].  The principles underlying those objects, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents; a right to spend time on a regular basis and communicate regularly with both parents and significant others; a right to enjoy their culture; that parents jointly share parental duties and responsibilities and parents should agree about future parenting [s 60B(2)]; 

   c)that said, best interests are determined through evaluating ‘primary considerations’ and ‘additional considerations’ [s 60CC (2)(3)] which are elaborated in other sub-sections [eg s 60CC(3)(4)]; 

   d)a presumption that it is in the child’s best interests for parents to have equal shared parental responsibility is imposed [s 61DA(1)] – that being about decision making, not time, although its application has time implications;

   e)the presumption does not apply where there are reasonable grounds to believe a parent has engaged in child abuse or family violence [s 61DA(2)] and it may be rebutted if the evidence establishes equal shared parental responsibility would not be in the best interests of the child [s 61DA(4)];

   f)in making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s61DA(3)];

   g)where the presumption does not apply the outcome is determined by evaluating the primary and additional considerations having regard to the stated objects and underlying principles;

   h)if it applies, there is an obligation to consider whether it would be in the child’s best interests to spend equal time with each parent and whether that would be ‘reasonably practicable’; if it is, make that order [s 65DAA(1)];

   i)if not, there is an obligation to consider whether it would be in the child’s best interests to spend ‘substantial and significant’ time with each parent and whether that would be ‘reasonably practicable’ [s 65DAA(2)]; ‘substantial and significant time’ requires that the child spend days that fall on weekends and holidays and those that do not and also allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and the child to be involved in occasions and events of special significance to the parent [s65DAA(3)];

   j)what is ‘reasonably practicable’ requires consideration of the distance between the parents’ residences, their capacity to implement an equal time arrangement, their capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, the impact such an arrangement would have on the child and such other matters the court considers relevant [s65DAA(5)]. 

2. There being no distinction in the Act between interim and final decisions, case law has developed guidance for the application of parenting provisions in interim proceedings, more recently Goode v Goode (2006) FLC 93-286 following the 2006 amendments. That case revisited the earlier Full Court decision of Cowling and Cowling (1998) FLC 92-801 and confirmed that interim hearings are an abridged process where the enquiry is curtailed, there is limited scope for making findings of fact and where findings cannot be made the Court should not be drawn on issues of fact underpinning the merits of the substantive case but look to the less contentious areas and have regard to earlier care arrangements, current circumstances and future proposals. The amendments, Goode says, reflects a legislative intent in favour of the substantial involvement of both parents in children’s lives, both as to parental responsibility and time, subject to the need to protect children from harm and provided the arrangement is in their best interests and reasonably practicable.  It follows that where there is a status quo or well settled environment [paragraph 72] instead of simply preserving it, unless there are protective or other significant best interest concerns, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the child’s care arrangements.  If there is a well settled environment then the stability of that arrangement may dictate the outcome, particularly where controversial evidence cannot be tested, but that would only recommend itself after the relevant s 60CC matters had been considered.  As for the application of s 61DA(3) it was said to provide ‘a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.’  Finally, Goode summarises the steps necessary in interim proceedings [paragraph 82]:

   a)identifying the competing proposals of the parties;

   b)identifying the issues in dispute in the interim hearing;

   c)identifying any agreed or uncontested relevant facts;

   d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   h)if equal time is found not to be in the child’s best interests, considering  making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of  consideration of one or more of the matters in s 60CC;

   j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.’ 

History

1. It is not necessary to canvass all of the events reflected in the affidavits; certainly no findings can be made here about the disputed evidence. 

2. As for the children’s circumstances, as noted earlier, interim orders made soon after separation imposed equal time and that remained in place for a time, although it was not long before J became a weekly boarder at her school and her weekends were alternated between both homes.  Difficulties developed between J and her mother and since then difficulties have developed in her relationship with R and more recently with B.  The father’s evidence now suggests a drift by D in the same direction.  As things presently stand, J has not spent any real time with her mother for many months (the last occasion was in April when all four children spent a week with their mother in the school holidays); R has spent little time with her since February this year when he went to live with his father; B has spent little time with her more recently; and only D is continuing to spend week about according to the interim orders made some 18 months ago.  Unsurprisingly, both parents have different explanations for how this state of affairs has come about, essentially laying the responsibility at the feet of the other and having nothing to do with their own attitude or behaviour. 

3. Some indication of the children’s evolving circumstances is apparent from what follows: 

   (a)J’s arrangements are not the subject of orders sought here but her circumstances are not without relevance.  She became a boarder at her school soon after the interim orders were made last year and, as already noted, she has spent little time with her mother since earlier this year.  How this situation has come about is by no means apparent.  The father identifies the start of the troubles being when the mother told J (and R) to ‘fuck off’ in May 2007.  They wanted to live with him, he says, but he told them ‘50/50’ would be better; however, he says it was agreed by February 2008 that both J and R would spend time with their mother when they wish.  He recounts trouble between J and her mother over J telling her mother a lie about her whereabouts while on a family holiday at a lake, her motivation according to her father being: ‘we don’t want mum up here with us and if I told her we were at [the lake] she might come up and ruin our holiday’.  If the father’s evidence correctly reports an email received from the mother in September, relating that she had received an ‘inappropriate and abusive’ text message from J, it would appear the problems between J and her mother continue. 

   (b)R has also become a weekly boarder at his school.  The mother’s own evidence gives some insight into the difficulties in her relationship with R and the father’s evidence seems to relay what R has told him of various incidents.  This includes an account of an occasion when R threw a steel milkshake container at his mother, hitting her in the face and laughing at the injury.  It includes R calling his mother a ‘skippy bitch’ and a ‘fucking skippy bitch’ during an uproar at the mother’s home in February this year.  It describes a physical altercation between R and his mother when he removed her from lying on his bed after mowing the lawn.  It suggests she told R earlier this year to ‘get out of the house’ and go and live with his father.  It is said the mother sent an email to the father saying, amongst other things: ‘[R] has continually expressed his desire to live with you since our separation…[R’s] behaviour has become increasingly unacceptable as I believe this is him acting out, to live with you….I will no longer allow [R] to treat me or the rest of the family in this disrespectful and aggressive manner….remind himself the rules are….’  On a more positive note, the mother reports that R was pleasant and respectful when they spoke at a school event recently and they had an exchange about Christmas.  On the other hand, the father touches upon the encounter in his evidence by reporting that R gave this reply when asked if he wanted to spend extra time with his mother over the upcoming holidays: ‘get it through your thick head – I don’t want anything to do with her’ and there is ‘no way’ he is going back there for alternate weekend visits.  R has been seeing a counsellor but nothing is known of the circumstances surrounding those arrangements. 

   (c)As for B, quite worrying aspects arise from the evidence.  The father relates being told at one stage of B being in the garage at his mother’s with a rope, the suggestion being that this had something to do with hanging himself although there is no elaboration or apparent follow up.  The difficulties that have developed in his relationship with his mother are also preceded by physical altercation; for example, the mother reports an incident in February this year when B kicked her and punched her in the arm when she tried to break up a fight between him and R.  His father was asked to collect him and the upshot was that B was dropped off at his paternal grandfather’s home by a maternal relative.  On the subject of relatives, his father says his maternal grandfather has left a voice message on B’s phone, which is recounted in paragraph 50 of his affidavit and it seems to be suggested that this has alienated B further.  The father says B has not been living with his mother since May 2008 and has told him: ‘I would rather hang myself than go back to mum’s’.  It is also his father’s evidence that his response to the suggestion he spend more time with his mother is: ‘no way she is a retard’ or ‘do I have to’ with a scowl on his face.  The mother’s application in June this year for orders to have B returned to her care resulted in the s 65L supervision mentioned earlier and the direction for a short report.  As I shall note shortly, at both report interviews, the reporter says B would not ‘open up’ to her and it is her view he needs counselling.  Indeed, he has been having counselling although there is scant information about the regularity or progress of this.  But contrary to the attitude the father describes, the mother’s evidence is that B is affectionate and polite and caring when he is with her although she says weeks of no contact has caused a rift between them.  B is also now a weekly boarder at his school.

   (d)Finally, the father’s evidence suggests there are also difficulties in D’s relationship with her mother.  He alleges that at an earlier time D had been ‘kicked out’ by her mother, but he recounts receiving an email from D on 17 November supposedly describing her mother’s: it is ‘hell living here its like im a prisoner in my own home’ and ’get me out of here, and help me rescue the others’ and ‘she doesn’t talk to me the place is messy and she doesn’t listen to me when I say I want to live with you…’.  Even more recently, on 2 December, there was an incident when D went to her father’s and, according to him, she only returned to her mother’s after his intervention and at his urging.  D also sees a counsellor although, again, there is not much information about this. 

1. It comes as no surprise to read amongst descriptions of these and other events that each parent sees the other as responsible for the children’s situation and the breakdown or fracture in relationships between them and their mother.  In summary, the father’s position seems to be that the mother’s insensitivity to the children’s needs is the cause of these developments and their objections to spending time with her are contrary to his efforts to encourage and facilitate that occurring while the mother’s position seems to be that the father has overly involved the children in what is called ‘adult issues’. 

Family reports

1. The reporter’s views, of course, have not yet been tested and there have been developments since the last of the interviews.  Even so, the reports give some indication of the situation at earlier times. 

2. The interim orders of 25 June were in place before the first report and the children were spending equal time between their parents save that J had commenced boarding as a weekly boarder in July and she was rotating her weekends between her parents.  The reporter notes that the father’s application at the time was for equal time while the mother’s amended response is said to have proposed the children live with her and spend time with their father on alternate weekends in addition to overnight on alternate Wednesdays.  They were both proposing ‘joint parental responsibility’ and shared holiday arrangements.  However, the mother shifted her position from her formal response at the interview by proposing J live with each parent in two weeks blocks, R live with them week about, while D and B live with her and spend alternate weekends with their father.  It is reported that each parent expressed a willingness to facilitate a positive relationship between the children and their other parent; otherwise, the substance of the report relates these matters:

   a)An account is given in some detail of each parent’s perspective about their relationship and parenting matters. 

   b)The children, who appear to have been interviewed together as a group, spoke of parental discord intensifying over several years and of the conflict at separation.  They acknowledged being happier not being exposed to the ‘ongoing domestic tension’.  They spoke of their parents’ strengths: their father was a ‘good role model’ and a source of pleasure; their mother’s strength was her ability to ‘nurture their sensitive side and her ability to provide them with structure’.  They saw her as ‘detached from the family’ prior to separation, but more available now.  Both parents were described as having good time and management skills.  The reporter later said B was ‘withdrawn’ and that he had ‘emotionally shut down’ although this was not elaborated and nor was the basis of the observation explained.  She also said D continued to experience intrusive thoughts of the sexual assault, but again this was not explained. 

   c)After referring to the history and discord, the reporter concluded that both parents love the children and this was reciprocated.  The parents acknowledged the other’s strengths, she assessed them as willing to facilitate the children’s relationships, and she noted there was no geographic impediment to shared living arrangements. 

   d)The reporter concluded by offering recommendations.  She saw merit in shared parental responsibility, she endorsed the parents’ proposed shared living arrangements for J and R, but she recommended for the interim that D and B live with the mother and spend alternate weekends plus overnight on alternate Wednesdays with their father.  She did not identify just what considerations had led her to this opinion.  Given D and B’s emotional demeanour throughout the assessment, she recommended the arrangements be revisited after 12 months with a view to implementing shared care.  She suggested school holidays be shared equally and suggested there be specific arrangements for special occasions. 

3. Turning to the second report (the only children seen were D and B):

   a)By this time J, R and B were living with their father and D was living week about.  B was said to be spending weekends with his mother ad hoc and J and R considerably less time with her.  In July 2008 R had commenced boarding weekly and J had reverted to being a day pupil. 

   b)By this time the father was proposing the children live with him [apparently based on the proposition that the children did not wish to spend time with the mother]; the mother was proposing that B and D live with each parent equally.  They both proposed shared holiday arrangements. 

   c)The reporter noted disintegration of the relationship between the parents, each alleging significant shortcomings of one kind or another in the other’s parenting and behaviour towards the children. 

   d)She reported D and B were both struggling with personal issues, describing D as ‘guarded yet willing to converse’.  As before, she said B ‘shut down’ when she spoke to him, that he was ‘extremely guarded’ and determined not to engage in any discussion about his feelings or family.  Before he has the confidence to disclose his personal feelings, the reporter said, B will require time with a counsellor to overcome his guardedness. 

   e)The parents gave different versions of the circumstances surrounding R’s decision to live with his father: the father says the mother ‘kicked him out’; the mother said she would not tolerate his behaviour and was ‘releasing him to live with his dad’.  The reporter described R as protective of his father, struggling to accommodate his father’s companion and with conflicting feelings towards his mother; however, the basis of this assessment is not apparent since she did not interview R on this occasion.  The reporter noted that the father had described R as a ‘woman hater’ and being at the ‘obnoxious age’ of 15.  Both parents reported difficulty at times in coping with R’s anger. 

   f)The parents acknowledged the three children may benefit from individual counselling. 

   g)As for the children’s relationship with their mother, the father was adamant all four children wanted to live with him and he identified difficulties getting J, R and B to spend time with her.  The mother reported R and B’s attitude towards her had improved, she had different strategies to curtail their destructive behaviour, and she said they now look forward to spending time with her.  The father acknowledged ‘[the mother] is a good mum’ and the ‘boys get to her’.  He said he had no concerns about her capacity as a parent when discussing the living arrangements for D and B.  The mother was adamant they were happy with the weekly rotation. 

   h)The reporter assessed the mother as more attuned to the children’s emotional needs, although the building blocks to arrive at this assessment are not apparent from her report.  It remains to be seen what weight could be given to it in due course, particularly since she had not seen the other children and nor was there any indication she had observed either D or B interacting with either of their parents, but quite possibly those gaps will be filled. 

   i)The reporter advanced recommendations, saying she saw merit in shared parental responsibility by reason of the parents’ strengths and diversity.  She recommended shared living arrangements for D and B, she endorsed the proposal for shared holidays, and she suggested the court consider specific arrangements for special occasions. 

Best interests

1. The observations that are able to be made here about any of the s 60CC considerations, primary or additional, are necessarily incomplete and tentative. 

2. A reading of the more recent family report does not reveal what views the children [B and D] have about their own future living arrangements, short or long term or at least their views are not addressed in any direct or clear way.  Nonetheless, the evidence suggests all four children have taken steps to organise themselves according to where they want to be although D’s recent email to her father indicates equivocation about her current situation.  Yet if the children have acted on their views it is by no means apparent they have been soundly based or acted on proper considerations.  Those matters are not discussed in the more recent family report and nor could they be evaluated here. 

3. The family reports do not analyse the nature of the children’s relationships.  But there is no reason to think they do not have the normal range of attachments as siblings.  Their relationships with their parents, on the other hand, appear to be bound up with far more complicated dynamics, no doubt related partly at least to the separation and how the parents have managed that.  Of course it is entirely incompatible with any child’s best interests for a child to conduct themselves and speak of a parent with the disrespect that is reported towards the mother here and the genesis of that is for another time.  True it is there are the rifts in relationships with her, as discussed, but at this point on what is available there could be no sound conclusion about the nature of the children’s relationship with their mother or with their father. 

4. It is said in both family reports that the parents have professed a willingness to facilitate the children’s relationships.  Whether or not there is substance in this will no doubt be explored at the upcoming hearing. 

5. As for the parents’ attitudes to their parental responsibilities and their capacity to meet the children’s needs, it is obvious they have managed their separation very poorly, it is equally obvious all of the children have been enmeshed in disputes about their arrangements, and it is also obvious that parental authority and guidance has been lacking in important areas of the children’s development. The parents have demonstrated no or little ability to communicate constructively about the children and that is reflected not only in the way they discuss issues in their affidavits but also in copies of their communications annexed to their affidavits.  The reporter assessed them as having strengths of different kinds and that may turn out to be accurate on closer examination.  But for now that seems overshadowed by their ongoing inability 18 months after their separation to have assisted the children get on with achieving their potential by settling them into a routine without being swept up in the debilitating circumstances of an acrimonious separation that has impaired their relationships. 

6. Orders made here are likely to operate for some months, possibly until next May. The mother’s proposal involves some change to the present circumstances in that by court orders R would spend alternate weekends with her, D would move from spending week about to seeing her father on alternate weekends, while B’s weekends out of boarding school would alternate between his parents. 

7. The first primary consideration is the benefit to the child of having a meaningful relationship with both parents.  Self-evidently, any child can be taken to benefit from having a meaningful relationship with each parent.  That applies to the children here.  It is also self-evident that the degree of benefit to a child is commensurate with the extent to which the parent can meet the child’s many needs, amongst other attributes.  In the complicated circumstances presented here, that is not so clear at this stage.  The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  On any reading of the evidence as it now stands, these children need to be protected from exposure to the ongoing dispute their parents seem unable to constructively resolve. 

Presumption

1. On the whole the evidence indicates it would not be appropriate to apply the presumption of equal shared parental responsibility.  The ability of the parents to communicate constructively about their children’s arrangements is virtually non-existent and nothing on the horizon indicates the prospect of improvement.  But the applications summarised earlier make it necessary nonetheless to consider whether it would be in the children’s best interests and reasonably practicable for them to spend equal time and, if not, substantial and significant time with each parent. 

Time

1. Turning first to R’s circumstances, I have concluded that no interim orders should be made about his arrangements.  At 15 ½ years of age there is much about the path his development is taking to give rise to considerable concern for his future.  For now, and for whatever reason, he has taken a stand about where he spends his time outside his boarding school arrangements and in my opinion to impose obligations upon him by court orders, as the mother seeks, would very likely be counter-productive and leave open the prospect of further proceedings if non-compliance were the result.  His situation is by no means a satisfactory but I cannot see his interests being served by orders given his age and apparent attitude. 

2. B is 15 months younger than his brother but he is 14 years of age and he has taken steps that cannot be ignored in any consideration of his best interests for the short term.  There is suggestion of suicidal ideation, to him being ‘shut down’ and unwilling to discuss his family circumstances, and some of the behaviour towards his mother gives rise to considerable concerns about his situation; one can only hope that he is receiving the counselling discussed and that is assisting him.  As matters presently stand, any risks to his well-being should be kept to a minimum.  In my assessment, when his circumstances are weighed in the balance there is the prospect that imposing obligations on him by court order beyond what he wants to do will be a source of more pressure for him and ultimately counter-productive.  Whatever might be the view taken in due course of his father’s part in all of these matters, the proposal he puts now is the minimalist approach that is more likely to be consistent with B’s interests at this stage. 

3. As for D, her position may be equivocal as her father suggests, but the relatively long standing arrangement of spending week about should be maintained, in my opinion, and I can find no reason to introduce for her the change now that her mother proposes which would see her spending significantly reduced time in her father’s household and, by implication, less time in the company of her siblings.  There is virtual agreement about her arrangements for the upcoming Christmas school holidays and, consistent with that arrangement, there will be provision for her to spend school holidays before the final hearing equally between her parents. 

4. I should add that the conclusions the reporter expressed in her more recent report about the mother being more attuned to the children’s emotional needs may or may not turn out to be well founded, but does not persuade me to impose arrangements contrary to those already indicated and nor do I feel able to adopt the recommendations since the underlying reasoning process is not sufficiently explained and there have been developments since they were made in any event. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date:  17 December 2008