MARSTON & BALDRY

[2013] FCCA 1597

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARSTON & BALDRY [2013] FCCA 1597

Catchwords:
FAMILY LAW – Parenting – children living with father as a result of mother in domestically violent relationship – mother no longer in domestically violent relationship – children wish to live with their mother – significant geographical distance between both homes – stability achieved in father’s home – children to remain living with father.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

AMS and AIF (1999) 24 Fam LR 756
Goode v Goode (2007) 36 Fam LR 422
MRR v GR [2010] HCA 4
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Morgan v Miles (2008) Fam LR 275
Taylor v Barker (2008) 37 Fam LR 461
Mazorski v Albright (2008) 37 Fam LR 518

Applicant: MS MARSTON

Respondent: MR BALDRY

File Number: BRC 849 of 2012

Judgment of: Judge Lapthorn

Hearing dates: 31 July, 1 August 2013

Date of Last Submission: 1 August 2013

Delivered at: Brisbane

Delivered on: 4 November 2013

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: In person

Counsel for the Respondent: Mr Lynch

Solicitors for the Respondent: Sciaccas Family Lawyers

Counsel for the ICL: Mr Thiele

Solicitors for the ICL: Rhonda Sheehy & Associates

ORDERS

1. That the parties have equal shared parental responsibility for the children X born (omitted) 2001, Y born (omitted) 2002, Z born (omitted) 2004 and W born (omitted) 2005.

2. That the children live with the father.

3. That the children spend time and communicate with the mother at all times as may be mutually agreed and failing agreement as follows:

   (a)From the Saturday afternoon immediately after the children’s last day of the school term to the last Friday of the New South Wales gazetted school holidays and the ends of terms 1, 2, and 3;

   (b)For the first four weeks of the New South Wales gazetted school holidays and the end of term 4 from the first Monday immediately after the children’s last day of the school term until the fourth Sunday including Christmas Day;

   (c)By telephone, internet connection such as Email, Skype and/or Face Time and correspondence at all reasonable times with the mother to instigate the communication to the father’s landline/mobile, computer (at an allocated time for the computer) and with the father to facilitate that communication by permitting the children to speak/communicate with the mother at that time provided that the father exercise reciprocal communication to the children when they are with the mother on the same basis.

4. That for the purposes of the children spending time with the mother in accordance with order (3) herein the father shall be responsible for the whole of the cost of return airfares between Sydney and Brisbane for all of the children for the school holidays at the end of terms 2 and 4 and the mother shall be responsible for the whole of the cost of return airfares between Sydney and Brisbane for all of the children for the school holidays at the end of terms 1 and 3.

5. That the mother and father deliver the children to the departure lounge of the nominated airline on each occasion the children are to travel and the mother and father each be responsible for collecting the children at the arrival lounge of the nominated airline on those occasions.

6. That the mother and father notify each other as soon as reasonably practicable of any medical or other emergency involving the children whilst with him/her.

7. That the mother and father keep each other notified of his/her current residential address, contact number and email/social network address.

8. That the Independent Children’s Lawyer be discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 849 of 2012

MS MARSTON

Applicant

And

MR BALDRY

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of four young children are unable to agree as to their future parenting arrangements.  The mother would like them to live with her in the (omitted) area whereas the father would like them to live with him and his partner in Sydney.  They each propose the children would spend school holiday time with the other parent.

2. The children: X, 12; Y, 11; Z, 9; and W, 8 were independently represented.  The Independent Children’s Lawyer (ICL) was supportive of the children living with the father.

Background

1. The father who is 48 years of age lives in (occupation omitted), a suburb of Sydney, New South Wales and works as a (omitted).  He currently lives with the children and his partner Ms H.  Ms H is a (occupation omitted).

2. The mother is aged 38.  She has recently moved to a rental property in (omitted).  She is not currently in a relationship although she has commenced seeing someone.  They do not live together.  She has two younger children, A who is two years old and B who is 14 months of age, living with her from her relationship with Mr W.

3. The parents met in 1997 whilst they were participating in a live-in drug and alcohol rehabilitation programme.  They both have a history of drug addiction.  They began living together in 2000.  In 2007 they separated although the father considered the separation to have occurred in 2008 after he moved to (omitted).  The children lived with the mother after separation and apart from one weekend early in 2009 they did not spend time with the father until February 2011.

4. The mother commenced a relationship with Mr W in 2008.  Although this relationship was marred with domestic violence and separations they married in (omitted) 2011.  The following month they separated for the final time as a result of a series of incidents of domestic violence.  The children were visiting their father over the December/January school holidays at this time.  The father, concerned for the welfare of the children being exposed to family violence, decided to retain the children in his care. 

5. Both parties filed applications seeking urgent hearings.  The father filed in the Local Court at Manly on 30 January 2012 and was granted a hearing the following day.  No parenting orders were made and the matter was transferred to this court.  The mother filed her application in this court on 1 February 2012 with the first return date being 12 March 2012.  Although her application was filed after the father’s she has been deemed to be the applicant in these proceedings as the father’s material had not been received by the court prior to the mother’s application being filed.

6. I made interim orders on 12 March 2012 by consent of the parties and on a without admissions basis for the children to continue to live with the father until 18 April 2012.  This was to enable the preparation of a Memorandum from a Family Consultant pursuant to s.11F after a child inclusive conference.  Provision was made in those orders for the children to spend part a block period of time with the mother from 6 April to 18 April.  The report of Family Consultant Ms R was admitted into evidence on 18 April and was again admitted into evidence in the trial. 

7. On 18 April I made further interim orders this time not by consent providing for the children to live with the father and for time with the mother.  Various restraints were placed on the parties.  I also ordered an ICL and adjourned the matter to 19 July 2012.

8. On 19 July I received a number of mutual as well as individual undertakings from the parties and made consent orders for them to have equal shared parental responsibility; for the children to live with the father and spend holiday time with the mother.  I made orders for the father to pay 75% of the airfares and the mother the remaining 25%.  There was an order made for the parties to have the father’s name placed on X’s birth certificate and to have the children’s surnames altered on their birth certificates to ‘Baldry.  This order was made on a final basis but was incorrectly styled ‘until further order’ on the orders that issued.  The matter was then adjourned to the call-over on 3 December 2012 for allocation of trial dates.  On that date the matter was allocated a two day trial commencing 31 July 2013 and the court requested the ICL to obtain an updated family report.  This was completed by Ms J.

9. The interim parenting orders have been, by and large, followed by the parties although there have been problems associated with the cost of airfares.

Issues for Determination

1. As can be seen from the brief background the children have been living with their father for almost two years but prior to that they had lived with their mother since the parties separated in 2007.  The significant issue requiring a determination is whether the children should return to live primarily with their mother or remain living with the father.  Because of the geographical distance between the two homes under either proposal the children would only see their non-residence parent during school holidays.

Evidence

1. In support of her case the mother relied on:

   a)Her Initiating Application filed 1 February 2012;

   b)Her Affidavit of Evidence in Chief filed 16 July 2012; and

   c)The Affidavit of Mr B filed 29 July 2012.

2. In support of his case the father relied on:

   a)His Amended Response filed 17 April 2012;

   b)His Affidavit of Evidence in Chief filed 5 July 2013; and

   c)The Affidavit of Ms H filed 22 July 2013.

3. The ICL relied upon:

   a)The Memorandum of Family Consultant Ms R dated 17 April 2012;[1]

   b)The Affidavit of Ms B filed 11 July 2012; and

   c)The Affidavit of Ms J filed 15 May 2013.

   [1] Exhibit C1

4. I have had regard to the affidavit evidence, the exhibits tendered[2] and the oral evidence given.  Throughout these reasons I will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.

   [2] Exhibit C1 – Family Consultant Memorandum dated 17 April 2012

5. Both parties were cross examined as was Ms J and Ms H.  The parents impressed as honest and forthright witnesses who gave their evidence to the best of their ability.  I am satisfied where their evidence differed factually they nevertheless each gave an honest account of their recollection although their recollections and perceptions were no doubt clouded by their ongoing dispute.

Legal Principles

1. All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975.  In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[3] and must consider the best interests of the child as the paramount consideration.[4]  Whilst that is the paramount consideration it is not the only consideration.  In AMS and AIF his Honour Justice Kirby held: [5]

   [144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents.  If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights.  However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.

   [3] S 60B

   [4] S 60CA

   [5] (1999) 24 Fam LR 756 at page 792

2. The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[6] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:

   a)Children have a right to know and be cared for by both their parents;

   b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;

   c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   d)Parents should agree about the future parenting of their children; and

   e)Children have a right to enjoy their culture.

   [6] S 60B lists the objects and principles for Pt VII.

3. The legislative framework which must be followed in all parenting cases,[7] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[8]  This presumption may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[9]

   [7] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

   [8] S.61DA

   [9] S.61DA(2) & (4)

4. In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[10]  If the court finds that equal time is not in the child’s best interests or  that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[11]

   [10] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4

   [11] S.65DAA(2)(c) & (d)

5. This legislative approach must be followed in all parenting cases.[12]  This particular case has as one of its elements the issue of relocating the children’s residence.  Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others.  The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.[13]  In Taylor v Barker[14] their Honours Bryant CJ and Finn J said:

   [53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:  see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458. 

   [12] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

   [13] B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343

   [14] (2008) 37 Fam LR 461 at page 475

6. Their Honours went on to say:

   [83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement.  Not to approach a case involving a relocation proposal  in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a  case to spend “equal time” or substantial and significant time” with each parent.[15]

   [15] ibid at page 480

Determining the best interests of the children – the s.60CC considerations

1. The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. Because the Initiating Application was filed prior to 7 June 2012 I am required to consider the provisions of the Act as they were at the time of the filing of the Application. In order to limit duplication I propose to group together a number of these factors.

The children’s relationships

The benefit to the child of having a meaningful relationship with both of the child’s parents;[16]

[16] S.60CC(2)(a)

The nature of the relationship of the child with:

(i)    each of the child’s parents; and

(ii)  other persons (including any grandparent or other relative of the child);[17]

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;[18]

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

[17] S.60CC(3)(b)

[18] S.60CC(3)(c)

(i)     either of his or her parents; or

(ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living[19]

[19] S.60CC(3)(d)

1. There is no dispute that these children would benefit from having a meaningful relationship with both parents.  The geographical distance between the two homes and the financial circumstances of the parties make it difficult for the children to spend time with their non-primary carer outside of the school holidays.  Although for very young children developing a meaningful relationship with a parent may require frequent and regular periods of time with the parent, maintaining a meaningful relationship that has already been established is more about the quality of the relationship rather than time.   I respectfully adopt the view of Brown J in Mazorski v Albright[20] where her Honour said:

   [26] ………I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive one.  Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant.

   [20] (2008) 37 Fam LR 518 at 526 [26]

2. Even though the father was physically absent from these children’s lives between 2008 and 2011, I am satisfied they each have a close and loving relationship with him which has developed in the almost two years since they have been living primarily in his care.  The children also have a close and loving relationship with their mother which is not surprising given she has been their primary carer for the vast majority of their lives.  Their primary attachment is with her.

3. The children have also developed a very close relationship with Ms H which has been a great relief to the mother.  Ms Marston described the children as thinking the world of Ms H and that she is “the children’s rock in Sydney”.

4. A was only a baby when the children were retained by the father and B was born after the children began living in Sydney.  Consequently they have only seen these two younger siblings during school holidays and the sibling relationships would not be developing at the same level as would be expected if all six children were living in the same house.

5. The mother’s proposal would see the children return to her care and live full time with her and their younger brothers.  They would however only see their father and Ms H during the school holidays.  Likewise if the children remain living with the father under his proposal they would only see their mother and the younger children during the holidays.  Notwithstanding these logistical difficulties I am satisfied the children would be able to maintain their parent/child relationships by the regular holiday time with their non-resident parent because these relationships have already developed and are strong.  Their relationships with A and B however would develop differently if they were living in the mother’s household.  If they remain living with the father they will only have an opportunity to get to know them during school holidays or by electronic means when they are older.  They would miss out on the opportunity to share the day to day family life as a sibling group which would be available to them if they were living with the mother.  This issue is one faced by many separated and blended families.  In the father’s household there are no other children at this stage.

1. Despite the conflictual nature of the parent’s relationship, at least historically, I am satisfied they both respect each other as parents and are supportive of the children having a relationship with the other.  I am also satisfied that after the litigation has ended they will be able to overcome some of the niggling conflict that has coloured their interactions since the children have been living with the father.  When he first retained the children the father was concerned for their safety but indicated to Family Consultant Ms R in April 2012 that he would return the children to the mother if his concerns were allayed after seeing the subpoenaed material.  Although his concerns were not allayed I am satisfied that  he has not been motivated out of any malice towards the mother but has acted out of a genuine concern for the welfare of the children.  As time has progressed he has formed the view that he and his partner are in a better position to provide the children with stability and ensure their educational needs are met.  He recognises the importance of the mother in the children’s lives and I accept his evidence that he will promote their ongoing relationships with her.  The mother argued that the father retains too much anger towards her to promote a positive relationship for the children with her.  Whilst I understand why the mother would make that submission given the past evidence of conflict between them and even though I am satisfied he has retained some level of anger in relation to their past relationship, I am satisfied that he has ‘moved on’ sufficiently and will encourage the children to have a good relationship with the mother.

2. Notwithstanding the mother’s concerns in relation to the father having anger management issues I am satisfied that she would promote the children having an ongoing relationship with him if the children were to live primarily with her.  It was her position that if the children had have expressed a wish to live with the father she would have agreed to them doing so.

Risk of harm

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[21]

Any family violence involving the child or a member of the child’s family[22]

Any family violence order that applies to the child or a member of the child’s family, if:

(i)     The order is a final order; or

[21] S.60CC(2)(b)

[22] S.60CC(3)(j)

(ii)    The making of the order was contested by a person[23]

[23] S.60CC(3)(k)

1. There has been a history of violence between the parents and the children were exposed to this violence during the relationship.  Although the father still appears to harbour some anger or disappointment towards the mother based on his past grievances with her over their relationship I am not satisfied that level of anger poses any risk to their current and future communication and interactions.  There are no current domestic violence orders in place between the parents.  I am confident that under either proposal there is unlikely to be any issue in this regard in the future.

2. The mother though was concerned that if the father did not address his anger the children would be exposed to it as they grow older and thereby be at risk both directly but also indirectly by accepting his behaviour as normal.  She invited the court to order the father to attend counselling to address anger issues.  The mother’s concerns are honestly held and influenced by her relationship with the father.  I am not however satisfied there is sufficient evidence to find the father has an anger management problem warranting any parenting order being conditional on him attending counselling of this nature.

3. There is no evidence of any violence in the father’s current household.

4. The children were exposed to violence when the mother and Mr W were in a relationship.  A was injured by Mr W inappropriately disciplining him.  Ultimately action was taken to shield the children from this violence by the father retaining the children in NSW.  In doing so he acted protectively of them.  I am satisfied that the mother has addressed the issue of violence between her and Mr W.  She has a current family violence order in place.  Although she has had two children with Mr W she has arranged their spending time with him in a way that she will never come into contact with him.  She does not communicate directly with him.  The mother has also undertaken family violence counselling.  I find the mother has acted protectively of all of her children by ending her relationship with Mr W and putting into place appropriate safeguards to ensure the children are not exposed to any further violence.

5. I am satisfied that neither home poses any risk of harm to these children.

The children’s views

Any views expressed by the children and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views[24]

[24] S.60CC(3)(a)

1. When the children were interviewed by Family Consultant Ms R in April 2012 they had been living with their father for about four months.  Their memory of Mr W and the family violence in the mother’s home was still fresh in their minds.  X in particular voiced concern about Mr W coming back into their lives.  Each child, and I note the children were interviewed separately, reported that they loved their parents equally and would prefer them to live closer to each other so they could see both more regularly.  Only W expressed a wish to live with her mother.  She is reported as saying:  I love my mum, I love my dad but I think I just should live with my mum.  The Family Consultant opined that W’s alignment with her mother was likely to be consistent with her developmental stage and the history of her mother being her primary carer.

2. Two months later the parties and children were interviewed by Ms B for the preparation of a more detailed report.  Ms B recorded X as saying, when she was asked what message she would like to give the court: Can I please live with my Mummy.  She said she felt scared to tell her father that she wanted to live with her mother.  She also expressed concern for her mother being lonely.  Y also said he wanted to return to the full time care of his mother.  In saying that he had no concerns about living with his father and he liked Ms H.  In relation to what message he would send the court he said:  I wouldn’t be happy if I had to live with Dad.  Z also expressed a wish to live with his mother but was worried about hurting the feelings of either parent.  W repeatedly enquired throughout her interview with Ms B why she was unable to live with her mother.  At the conclusion of the interviews she continued to question why she could not go home with her mother and became louder and more insistent in her questioning until the mother was able to sooth her.  She clearly expressed a wish to live with her mother and said she cried by herself in her bedroom because she missed her mother.

3. In April this year the family was again interviewed as part of the family report process.  Ms J who conducted this report said that only X expressed a clear wish to live with her mother.  She opined that X would be very sad if she was unable to return to live with her mother.  Y and W avoided expressing a wish and Z was equivocal in his views.

4. The mother gave evidence to the effect that if the children wanted to live with their father she would accept that and agree to them doing so but has maintained her application because of their expressed wish to her that they live with her.  She said they have often told her they wanted to live with her although she has not asked them specifically.  When they have raised it she has responded by telling them she knows that they do and that she would like them to live with her also.  She conceded that this response might put more pressure on the children and that they might be telling her what they think she wants to hear.  Ms J was not overly concerned about the mother’s response as she considered it to be contextual to the conversations.  I am not satisfied the mother has set out to pressure the children to express a wish to live with her and I accept her evidence that she has only addressed the issue when raised by the children.  Ms B noted that the mother soothed W when she was insistent in going home with her.  I am satisfied that the mother is able to be child focused when the issue of where the children want to live are raised with her.

5. I propose to give some significant weight to the children’s views even though they are of different ages.  X in particular is now 12 years of age and her views must be accorded some weight.  I find that her views have remained consistent over the last 12 months.  The other children did not express any clear wish in the last interviews but as Ms J noted this may have been because this was the third time they have been interviewed about their views and by a third interviewer.  Ms J proffered the view that as a year had passed and the children had adjusted to being away from the mother for long periods of time they may have decided it is safer to keep their heads down out of the firing line, so to speak, and say little.

6. Overall I am satisfied that the children would prefer to live with their mother.  Their views on their own though will not be determinative of the dispute.  This is one consideration to be weighed with all the other considerations but it is one to which I place significant weight.

Practical difficulties

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis[25]

[25] S.60CC(3)(e)

1. Unsurprisingly the cost of transporting the children between Sydney and Brisbane has been problematic for these parents.  During submissions I suggested the parents consider sharing the cost in a way that would give them some certainty around when they would be responsible for the cost of travel and have plenty of time to save for it.  They agreed with my proposal that each parent would be responsible for the whole of the costs associated with the same two sets of school holidays each year.

2. The geographical distance means the children will not see their non-resident parent as regularly as they would if they lived in close proximity.  Electronic communication is therefore an important means to help maintain their relationships with the members of the other household.  Ultimately this was not an issue between the parties and I propose to make orders to help them facilitate regular communication by telephone but also computer and/or mobile assisted face to face time.

Parental capacity and responsibility

The capacity of:

(i)    each of the child’s parents; and

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

to provide for the needs of the child, including emotional and intellectual needs [26]

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents[27]

The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent[28]

[26] S.60CC(3)(f)

[27] S.60CC(3)(i)

[28] S.60CC(4). Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents: (a) has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and (b) has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and (c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child. S60CC(4A) provides that if the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

1. The parents have each had difficult pasts relying on drugs and alcohol to their own and their children’s detriment.  To their credit both have been able to address these issues.  The mother remains concerned as to the father’s mental health and any risk that may pose to the children.  She tendered documents from Psychologists, Dr H and Dr N.  These show that the father has had a history of depression and anxiety.  He has misused alcohol and drugs. Ms Marston submitted that the court should be concerned about his capacity to meet the children’s needs in light of this history.  I make no criticism of the mother for raising this important issue.  I am not however satisfied there is any evidence of current difficulties in relation to the father’s mental health or any substance misuse.  The exhibits are some five to seven years old and must be viewed in that context of time.

2. The mother impressed as having thought through the challenges of parenting six children as a single mother and gave examples of the support services she would hope to engage.  The ICL submitted however that there was a level of naivety in her approach.  It was submitted that there was a risk the mother may succumb to the stressors of parenting six children.  Counsel submitted that the mother’s past reliance on alcohol and drugs was triggered by stress and there remained a risk of the great gains achieved by the mother being compromised should the children’s return to her care lead to instability in her household.  I accept that submission.

3. The father is fortunate to receive significant support from his partner in the care of the children.  I am satisfied he with that support is able to meet the children’s needs.

4. These children have had some difficulties with their schooling both in Queensland and NSW.  The evidence shows that they have all made progress in their current school.  Both parents are aware of these issues and are committed to ensuring all children receive the assistance they need.  It was submitted by the father and ICL that given the progress made in their current school there would be some risk in their returning to their old school in Queensland if they were to return to live with their mother.  I did not receive those submissions as a criticism of their old school or the mother but more as a submission supporting stability and avoiding the chance of regression should the children’s stability be compromised by a change of residence.  Even though I find that both parents are committed to ensuring the children receive the appropriate educational support they need and commensurate with their ability, I accept that there would be a risk of destabilising the progress the children have made by again changing their home and school even though they would be returning to their mother’s care and to their previous school.  Ms H has been a great help to these children in ensuring the children attend their homework and schooling.

Background issues

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant[29]

[29] S.60CC(3)(g)

If the child is an Aboriginal child or Torres Strait Islander child:

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

(b)   the likely impact any proposed parenting order under this Part will have on that right[30]

[30] S.60CC(3)(h). S60CC(6) provides that for the purposes of paragraph (3)(h), that an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and (ii) to develop a positive appreciation of that culture

1. These children are not of Aboriginal or Torres Strait Island heritage.  No other cultural or background issues were raised at the hearing and therefore I do not propose to give any weight to these considerations.

Limiting further proceedings

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child[31]

[31] S.60CC(3)(l)

1. The mother is concerned that there is potential for further proceedings if the children were to live with the father.  The concern primarily relates to whether his relationship with Ms H will last the distance.  I am satisfied the father relies heavily on his partner in caring for the children.  There is no suggestion their relationship is in any difficulty.  They live in a home provided by Ms H’s family although they do pay rent.  They are both working.  I am satisfied they have a stable situation at home.

2. The mother has not had the same stability in recent years.  Although she now appears to have secured independent rental accommodation this has occurred recently.  The mother has also been able to get her life back on track since the breakdown of her relationship with Mr W and has been free of reliance on drugs for over three years.  There remains some doubt however that despite the best will in the world if the four children were to return to her full time care she might experience difficulties and the good progress she has made may founder.  Ms J held the view that the mother has continued to struggle to get her life under control.  Ms J observed the mother to have some difficulty managing Y’s behaviour towards the end of the day when they were being interviewed and in the witness box expressed the view that this observation may be a vignette as to the future with the mother and six children.  Although that was a supposition on Ms J’s part I also share that concern when comparing the two households.  Managing and caring for six children would be a big task for any parent.  I have no doubt the mother has a great desire and commitment to raise all her children to the best of her ability.  However when I compare the two homes I find the father’s home offers the greater prospect of stability as in that home there are two adults in a committed relationship and four children whereas the mother would be caring for six children on her own although with some support from her family.  I am therefore satisfied the prospect of further proceedings would be greater if the children were to return to their mother as there is a greater prospect of difficulties arising in her home.

Presumption of Equal Shared Parental Responsibility

1. Given the history of family violence between the parents I am satisfied that the presumption of equal shared parental responsibility has been rebutted.  All parties including the ICL sought an order for the parents to equally share parental responsibility for the children.  The parties have had difficulties communicating and have made unilateral decisions in relation to medical appointments and the like but overall I am satisfied they are able to communicate effectively to share this responsibility.  The tension between them has been adversely heightened by the ongoing litigation.  The family violence is historic and not of a current concern.  I am therefore satisfied that the parties should share equally in the exercise of parental responsibility and that it would be in the children’s best interests for them to do so.

Consideration of Equal Time or Substantial and Significant Time

1. Having made the finding that it is in the children’s best interests for an equal shared parental responsibility order to be made I am required to consider the children spending equal time with the parents.  Neither party sought an order for equal time which is understandable given the geographical distance between their two homes.  Such distance precludes a finding of reasonable practicability.   Likewise the distance and financial resources of the parties also precludes a finding of reasonable practicability for the children spending substantial and significant time with their non-resident parent.

Discussion

1. This is a difficult and finely balanced case.

2. The children would like to live with their mother.  The mother appears to have turned her life around.  She has been able to remain drug free for over 3 years and is no longer living in a violent and abusive relationship.  The circumstances necessitating the children coming into the father’s care no longer apply.  The father has also managed to start a new life free of drug dependency.  He is in a committed relationship that is not marred by violence.  The children notwithstanding their desire to live with their mother have settled in the father’s home.  They have made progress in their schooling and have formed a close relationship with Ms H.  This relationship of course would never replace that of their mother.

3. If the parties lived in closer proximity to each other I have no doubt orders would be made enabling the children to see each parent on a weekly basis given the close relationships they have with their parents and the ability each parent has to provide for the children.

4. When I balance all of the factors I have considered above I have concluded that the children’s need for stability outweighs the other considerations, even their wishes to which I have given significant weight.  Overall I am persuaded it is in their best interests to remain in the father’s household where they have managed to find stability and where they have been able to progress with their schooling.

5. Given the distance between the two households precludes the children seeing their mother as often as would be best I propose to make orders for extended holiday periods rather than the usual half school holidays.  The father proposed that during the Christmas school holidays the children should spend the first four weeks with the mother.  This would mean they would not get to spend Christmas Day with him.  He was confident that after the litigation ended the parties would be able to make more flexible arrangements around the holidays.  I share that optimism but will put into place the orders sought by him in relation to these holidays.

6. For these reasons I make the orders set out at the commencement of this judgment.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Date:  4 November 2013

ICL1 – Synopsis of school reports
ICL2 – Amend Programme letter dated 8 April 2013
ICL3 – (omitted) Domestic Violence Service letter dated 22 March 2013
M1 – Medical Notes - Dr H
M2 – Medical Notes – Dr N