MARTIN & CRAWLEY

[2013] FamCA 172

FAMILY COURT OF AUSTRALIA

MARTIN & CRAWLEY [2013] FamCA 172

FAMILY LAW ─ CHILDREN ─ With whom a child lives ─ Best interests of child ─ Whether the children should primarily reside with their mother in Sydney or with their father and his new partner in rural New South Wales ─ Where the proposals of both parents did not satisfy the literal requirements of s 65DAA(3), and could not be regarded as substantial and significant for the purposes of s 65DAA(2) for that section to be enlivened ─ Where the Court was persuaded on the balance of probabilities that the children’s best interests would be served by their continuing to live in rural New South Wales ─ Children live with father and spend time with the mother.

Family Law Act 1975 (Cth) Part VI; ss 60CC, 65DAA

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

APPLICANT: Ms Martin

RESPONDENT: Mr Crawley

FILE NUMBER: DUC 243 of 2010

DATE DELIVERED: 30 January 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Dubbo

JUDGMENT OF: Coleman J

HEARING DATE: 25 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Pearson Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hodgson

SOLICITOR FOR THE RESPONDENT: Booth Brown Samuels & Olney

Orders

1. That the mother and father shall have equal shared parental responsibility for L Crawley born … 2000 and G Crawley born … 2004 (“the children”).

2. That the children live with the father.

3. That the children spend time with the mother as follows:

   (a)for one half of all school holidays periods which shall commence and conclude at McDonald’s Town Z in the absence of any other arrangement being agreed to by the parties;

   (b)for two (2) weekends during the school term, one such weekend being spent in the Town D region, and the other in Sydney, provided that such weekend time commences with the father delivering the children to the mother at the McDonalds at Town Z at 7pm on Friday and concludes with the mother returning the children to the father at the McDonalds at Town Z at 3pm the following Sunday, and further provided that the mother may elect for both weekend periods during the school term to occur in the Town D region or within a range of 2 hours drive from D.

4. That when the children are spending time with the father he shall do all acts and things to facilitate the children speaking with the mother during term time on no less than three (3) evenings during the week and on one (1) day of the weekend and the father shall stipulate in writing between what times that he will facilitate such telephone contact.

5. That the father shall do all acts and things necessary to cause a Skype facility to be provided for the children at his residence.

6. That each of the parties shall keep the other party informed of all matters relating to the children’s education, residence, schooling, extracurricular and sporting activities and shall provide, where possible, advance notice of at least seven (7) days of any meetings or appointments in relation to such issues to enable the other party to participate and or attend such meeting or appointment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Crawley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT DUBBO

FILE NUMBER: DUC 243 of 2010

Ms Martin

Applicant

And

Mr Crawley

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

introduction

1. The proceedings heard by the Court on 25 January 2013 relate to the parenting of the two children of the parties, they being L, who was born in 2000, and G, who was born in 2004. The children will in May this year respectively attain the ages of 13 and nine years.

background

1. The Court’s judgment in the financial proceedings delivered on 10 December 2012 records some matters of history which are relevant for present purposes, but the history which is directly relevant for present purposes can be shortly stated. It is uncontroversial, as are most of the issues in the proceedings which the Court heard on 25 January 2013.

2. In short, the father, Mr Crawley (“the father”), was born in 1967. He is 46 years old.

3. Ms Martin (“the mother”), was born in 1967 and will shortly attain the age of 46 years.

4. The parties married in 1995. The issue of the marriage were two. They have earlier been referred to.

5. The parties separated in about mid-2008, at which time a shared care arrangement was implemented whereby the children spend approximately alternate weekends with each of the parents. It is little short of remarkable that the arrangement which the parties thus implemented subsisted without, and perhaps because of the absence of intervention of court orders, or litigation of any note in that regard for a period of almost four and a half years. That fact assumes significance for reasons which will later be referred to.

6. In late 2012, the mother relocated her place of residence from Town D, where the parties and their children had previously lived for most, perhaps all, the children’s lives, to Sydney. It is unnecessary to refer in any detail to the reasons why the mother moved from D to Sydney, save to record that, to the extent that reasons for doing so assume or could assume any significance, which is debatable, the mother’s reasons for relocating to Sydney were entirely reasonable, and give rise to no adverse inference whatsoever for the purpose of the parenting proceedings. No more will be said about the reasons for the mother’s relocation.

7. In November 2009, the father commenced a relationship with Ms V. Ms V has two children herself from a previous marriage. They are aged 20 and 19 years, and are both female children.

8. In April 2011, the father and Ms V commenced cohabitation. That cohabitation continues. They apparently intend to marry at some time in the future.

9. The parties to these proceedings were divorced by decree pronounced on 16 September 2011.

10. In the short period since the distance between Town D and Sydney rendered week-about sharing of the children’s care impracticable, the parties have worked out arrangements whereby the children have spent significant time with the mother at various places. To the extent that the evidence reveals that there may have been some negotiation in relation to those arrangements, the evidence does not reveal that either party has acted unreasonably, or in any manner which would warrant criticism.

discussion: whether the children should reside with their mother or father?

1. The issue which arises, given the reality that the children cannot now spend week-about with their parents in the way in which they did for almost four and a half years, notwithstanding that so doing would be in their best interests, or in their continuing best interests, is whether they should primarily reside with their mother in Sydney or with their father and Ms V in Town D.

2. As will be seen, deciding this issue is more difficult because, not surprisingly given that the parties managed to effectively share the care of their children for almost four and a half years without court direction or intervention, the case is extremely finely balanced, and many of the factors provided for by the legislation which would in most cases give guidance as to where, on balance, the children’s best interests lie, in this case, the vast majority of such factors can only be regarded as neutral, that is, not advancing the case of either parent to any material extent.

3. The evidence of both parents, as was the case when they gave evidence in the financial proceedings, was candid and impressive. Neither party, as again was the case in the financial proceedings, sought to denigrate the other party or to utilise their comparatively short time in the witness box to promote or advocate their own cause. It might be observed that, to the extent that the father and Ms V made some statements which could be regarded as less than entirely what would be hoped for, there is a frankness and candour about those statements which, particularly in the light of other statements made by them, substantially, if not entirely, defuse the potentially adverse impact of such statements, most notable of which was the attitude to, or view of the mother’s move away from D.

4. The proceedings are governed by the provisions of Part VII of the Family Law Act (Cth) (“the Act”), and it is by reference to those provisions that the Court now turns. It is common ground, and sensibly so, that the presumption of equal shared parental responsibility (“ESPR”), applies in this case, and that there is no basis upon which that presumption is, or should be regarded as having been rebutted. Given that the presumption of ESPR thus applies, the Court is obliged under s 65DAA of the Act to consider a number of scenarios or outcomes. The first of the matters mandated by s 65DAA(1) is whether the children spending equal time with each of the parents would be in the best interests of the children, and secondly whether the children spending equal time with each of the parents is reasonably practicable. It is common ground that the latter consideration cannot be established in the circumstances of this case. The children simply being of school age cannot spend equal time with each of their parents. It is an impossibility rather than an impracticability.

5. The first requirement may or may not be conceded by either or both parents, and it is academic whether it is or not, given that the requirements of s 65DAA(1) are conjunctive. Were it necessary to make a finding in that regard, and it probably is not, the Court would find that, were it practicable, equal time spent with each parent would be in the children’s best interests. However, s 65DAA(1) not being enlivened, the Court must, as mandated by s 65DAA(2), consider whether the children spending substantial and significant time with each of the parents would be in the best interests of the children and whether so doing would be reasonably practicable.

6. To the layperson, having regard to the minutes of order advanced on behalf of each parent, it would seem beyond doubt that the proposals of either parent constituted both substantial and significant time being spent with each parent and that so doing would, in the manner referred to in the minutes of order advanced on behalf of each parent, be reasonably practicable. The difficulty, however, in relation to the question of substantial and significant time arises from the definition provisions of s 65DAA(3). Without referring to them in their entirety, it is reasonably clear, and the Court understands it to be common ground as between Counsel for the parties, that the proposals of the parents do not satisfy the literal requirements of s 65DAA(3), and thus the proposals advanced by either parent cannot be regarded as substantial and significant for the purposes of s 65DAA(2). That being so, s 65DAA(2) cannot be enlivened, even though the proposals of either party would in the lay sense constitute substantial and significant time being spent.

7. As Counsel for both parties appeared to acknowledge in submissions on 25 January 2013, neither equal time nor substantial and significant time being enlivened, the issue becomes one of best interests. That invokes the provisions of s 60CC of the Act. In s 60CC, there are what are described as “primary considerations”, and include relevantly for present purposes, s 60CC(2)(a), the benefit to the child of having a meaningful relationship with both of the child’s parents. Subject to the geographical limitations, for which neither party should be criticised, the proposals of either parent would facilitate the children having a meaningful relationship with both their parents.

8. The provisions of s 60CC(2)(b) assume no significance whatsoever in this case. Thankfully for the children of these parties, the spectre of psychological or physical harm or abuse, neglect or family violence has never arisen, and the evidence suggests will not arise in the future.

9. It is, in reality, in relation to the additional considerations referred to in s 60CC(3) of the Act, albeit as suggested earlier a very small number of them, that the fate of the proceedings falls to be determined by reference to such factors. Before considering those factors, it is, perhaps, appropriate at this point to refer to exhibit X, that is the family report prepared by Mr WW, a very experienced and insightful family consultant.

10. The family report writer, sensibly, was not required for cross‑examination in relation to his report, nor, the Court apprehends, was any evidence adduced from anybody which calls into question either any opinion expressed by Mr WW in his report or, to the extent that the report was necessarily reliant upon matters of which Mr WW had, and could have had no personal knowledge, any material error of fact. In every sense, having regard to the judgment of Heydon J in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, the family report writer’s expert opinion evidence was admissible, and able to be and is accepted. The submissions of Counsel for the parties, at least implicitly, proceeded on the basis that Mr WW’s expert opinion evidence would be accepted by the Court.

11. Under the heading “Evaluation”, the family report writer proceeded to outline, in a perceptive, sensitive, and dispassionate way the issues which arise and those which do not arise in the proceedings. The family report writer referred, at paragraph 63, to the allegations of the parents about unilateral decisions, failure to inform, and matters of that kind. If the test is one of perfection, then each party does have something to complain about in terms of those matters. In the real world, however, perfection is rarely achieved, and, when one considers the realities of the situations of the parties, the need to make decisions from time to time without necessarily the level of consultation that perfection might desire, or might suggest to be desirable, the Court does not find, on any evidence before it, that either party has made unilateral decisions about the children of any significance, or failed to inform each other of any major long‑term issues concerning the children.

12. To the extent that any circumstantial evidence need be referred to by way of underpinning the Court’s findings in that regard, to use the colloquial “action speaks louder than words”. It is inconceivable that the informal week‑about shared care arrangements, which the parties implemented for almost four and a half years, could have subsisted for that long, or anything like that duration, if either party was prone to making unilateral decisions about the children or failing to keep each other informed about major long‑term issues. The Court has earlier referred to the circumstances surrounding the mother’s relocation and noted that does not assume significance in the proceedings.

13. The issue which does assume or potentially assume significance, and was identified by the family report writer at paragraph 64 of his report, related to the mother’s perception that the parties’ second child, G, has a significant learning disability which the father was not managing with the seriousness that it deserved. The evidence in relation to that, or the primary evidence, seems to be a report prepared by Ms K, a private psychologist in Town D, dated 26 March 2012. That report, it seems fairly clear, was based upon assessments done or interviews conducted for the purpose of the psychological assessment by Ms K in late 2011. There is an absence of expert opinion evidence subsequent to Ms K’s report of March 2012.

14. The mother’s concerns are articulated by the family report writer at paragraph 64 of his report, as are the father’s responses, they being articulated in paragraph 65. Those paragraphs provided:

    64.      [The mother] would like the children to live primarily with her in Sydney, at least in part because she sees herself as being the primary parent of the children, but also because she believes [G] has a significant learning disability, which [the father] is not managing with the seriousness that it deserves. [The mother] provided a copy of the psychological assessment and report conducted by Ms [K], a private psychologist in [D], and dated 26th March 2012, as evidence of the seriousness and extent of [G’s] learning disability. [The mother] also advised she is in the process of pursuing a formal diagnosis of [G’s] learning disability from a paediatrician. Finally, [the mother] claimed that although [L] experienced some developmental or learning difficulties at a similar age, the nature of her issues are entirely different from [G’s], and so the two cannot be compared in any way.

    65.      For his part, [the father] believes [the mother] is artificially amplifying [G’s] developmental challenges because it suits her strategic interests to do so. [The father] acknowledged that [G] is developmentally slower to mature than her peers, although he considers she “is not significantly below average”, and with appropriate management and support this under-development can be corrected. He also acknowledged that [G] “needs to be treated differently than the average child ... [and] she benefits from one-on-one [tutoring]”. For this reason he said [G] has been attending speech/drama lessons over the past ten weeks, which have produced “significant improvements in her reading and writing”, as well as having tutoring assistance with homework on Tuesday afternoons. [The father] said he believes “[L] was much the same at a similar age ... and then [L] had a ‘spurt’ and caught up with her peers ... I can see the same thing happening with [G]”.

15. In essence, and at the risk of oversimplifying the issue, the parties have different perceptions of the nature and extent of the child G’s learning or other difficulties. The issue is complicated for the Court in a number of ways.  The first has already been referred to, that is, the absence of recent expert opinion evidence in relation to the topic. The second is that, as a 2005 report attached to the mother’s affidavit sworn in the last week or so records, at a not dissimilar age, the child L, manifested some difficulties.

16. It is probably not a gross oversimplification to say that not without some foundation the father considers that G’s position may well prove to be, or to have been, not dissimilar to that which L experienced and, clearly, overcame. The family report writer recorded at paragraph 66 one of the two, or what the Court perceives to be the two, pivotal issues in determining the s 60CC issue in this case, and he there said:

    66.      Since the nature and extent of [G’s] alleged developmental and learning difficulties is a major point of difference between the parents, it seems likely this issue will need to be explored in much more detail by the Court during the final hearing.

17. Nowhere in his report so far as the Court is aware did the family report writer provide tacit or greater support for the opinion of either of the parties, and the Court does not recall Counsel for either party having referred to anything in Mr WW’s report which was submitted to have, in effect, boosted the stocks of either party in relation to this issue.

18. The mother, undoubtedly, has a concern and it is, undoubtedly, genuine in relation to two issues. Firstly, what is G’s actual degree or extent of difficulty, and the father’s understanding of it or insight into it and, secondly, and perhaps to some extent consequential upon the first issue, the extent to which the father would, given his asserted absence of insight, address that issue.

19. As will be seen, the Court is not persuaded on the balance of probabilities that the expert opinion evidence establishes that G’s difficulties are quite as extensive as the mother believes them to be. Nor is the Court persuaded by the evidence that the father is either dismissive of or excessively depreciates the possible significance of those issues. With respect to the mother, whilst the Court has no doubt that she will, if in a position to do so, pursue the matters identified by the family report writer in paragraph 64 of the report, the evidence does not establish on the balance of probabilities that the father has failed in the past to adequately address G’s learning difficulties, is failing to do so at present, or will fail to do so in the future.

1. The Court understands paragraph 66 of Mr WW’s report to suggest that this pivotal issue turns on a preliminary determination, and that determination relates to whether G’s difficulties are as great as the mother genuinely believes them to be. If they were found to be as great as the mother’s believes G’s difficulties to be, then the position of the father would be potentially somewhat problematic. Conversely, given that the Court does not so find, whilst that does not give rise to any criticism of the mother whose concerns are genuine and not without some foundation, it does enable the Court to find, and the Court does so find, that the father’s approach to the topic has been appropriate, and will be so in the future.

2. As the record would reveal, early on Friday, 25 January 2013 the Court asked whether it could see school reports for the two children. Given, as the Court suggested, that its decision would have some significance on the children’s lives, the Court was anxious, so far as possible, to gain, from sources that can be regarded as independent, as much direct or circumstantial evidence relating to the children’s current development as was available. The end of 2012 school reports, being but a month or so old, were potentially of assistance, and thankfully they were received in evidence.

3. There is no issue that L has had a very satisfactory year at SS Primary School in D. Her report from her teachers records positive findings with respect to academic achievement, social development and work habits, and the general comment which records that:

   [L] is a gregarious student in 6G. She is an outgoing and cheerful friend who participates enthusiastically in all class activities. [L] has developed her role as a school leader and displays confident leadership skills as a daily fitness group leader. She is a loyal friend to others and a genuine person who enjoys being part of a team. ...

4. Other similar laudable comments follow. L will either go to school in the local suburb, the mother’s proposal, or a Catholic school, which is her secondary proposal, if she primarily resides with her mother, or she will proceed into a Catholic high school in Town D if she continues in D. How many of L’s peers at SS Primary School will follow her into the same high school is less than clear from the evidence. The Court draws no inferences, save to the extent that, on the evidence, wherever L goes to school in Sydney, that will be an entirely new schooling situation for her, whereas were she to continue in D, that may not be the case in terms of her fellow students. It certainly would not be the case in terms of her social and other relationships in the D region.

5. In the case of G, the school report records, in relation to English, reading and writing is basic. That is the second lowest of five gradings. In mathematics, number and space are regarded as basic. Measurement is regarded as sound. In other areas of education, and particularly science and technology, G’s report records her as having been sound in her academic achievement. Social development and work habits are, without exception, regarded as highly satisfactory, the highest of three gradings. 

6. Under the heading “English Comment” G’s class teacher Mrs I set out G’s difficulties in simple and cogent language which can be understood. It is unnecessary to read onto the record the totality of the paragraph, save to say that a matter of considerable importance is Mrs I’s observation that “[G’s] writing has really developed since the beginning of the year”.  The clear impression emerging from G’s “Fantastic Effort”, as Mrs I ultimately describes it, in relation to her progress in English is that G has both persevered with her studies, and achieved a measure of success.

7. In relation to mathematics, G’s progress has been less spectacular, it seems, given that her understanding of the mathematic concepts is inconsistent, and that she can only recall parts of the whole concept, and needs continued guidance and practice. The general comments with which Mrs I concluded her report on G are that:

   [G] has worked very hard during the year and is to be commended for her efforts. Although [G] tries hard, Year Two work has been challenging in both English and Maths. She uses class time constructively but finds it particularly demanding to complete most tasks. Her self-esteem has really improved and she is much more willing to take on new challenges. [G] needs to develop confidence asking for guidance when she is unsure to assist her understanding. She has been a wonderful member of our class. Well done [G]!

8. Those comments, particularly in relation to G, potentially assume considerable significance in ways which will be referred to in the context of s 60CC of the Act. They clearly establish that G has some learning difficulties, but to what extent they are lesser or greater than other children the evidence does not permit the Court to find at this time. What is clear is that SS Primary School is alive to these issues and Mrs I, it seems clear, has been in her teaching of G conscious of them and, it can be inferred, has sought to devise strategies to assist.

9. There is no evidence before this Court of recent times suggesting that G needs any assistance which she is not currently receiving. It may be that she does, but the evidence establishing that is not before the Court, and to the extent that it might be, it does not, on the balance of probabilities, establish that anything which might reasonably be undertaken has not been undertaken.

10. The evidence in relation to consultations with Ms K, that is, the oral evidence, is not significant either way, nor is what the mother has or has not done in pursuing a formal diagnosis from a paediatrician regarding G’s developmental or learning problems as identified by the family report writer in paragraph 68 of his report.

11. Mr WW’s report records, paragraphs 69, 70, the children’s undoubted strong attachments to each of their parents. The Court does not discern that the family report writer assessed the children’s attachment to either parent to be stronger than their attachment to the other parent. The Court does not understand Counsel for either party to have submitted that it was. It is clear, and part of the difficulty in determining this case, that to the credit of both their parents, notwithstanding a long separation involved and hard-fought financial proceedings, the children retain strong attachments to, and positive perceptions of each of their parents. That did not happen by accident.

12. The family report writer discussed possible separation of the children. That was not indicated, as he said. To their credit, neither parent sought to separate the children. On the evidence before this Court it would be unthinkable for that to occur, and it will not. 

13. The family report writer referred to logistics of changeovers, and that air travel was the most optimal mode of transport, subject to it being affordable. There are two issues in that regard. The first is the affordability of the transport. The second is how it would be funded. The best indication the Court has had, earlier this morning, is that it would cost between at least $500, possibly as much as $1000, a figure of $700 having been mentioned for the children to fly Sydney/Town D, Town D/Sydney return. In the absence of the parents’ finding it within their means to fund such travel, and to do so by contributing equally, the Court will not so order. The reality is, however, as the family report writer recognised, at least during school term travel between Sydney and Town D, about a five and a half hour drive, would create a difficulty. 

14. The question of school holidays need not be referred to in detail. Mr WW did in his report. Subsequent to its completion, however, the minutes of order sought by the parties, whilst not mirror-reversing each other’s proposals, substantially do so. The reality of changeovers of the children suggest, as Mr WW at least impliedly acknowledged in paragraph 77 of his report, that Town Z may be the best changeover point for all concerned, insofar as neither party has to do a 10 to 11 hour return journey. Whilst that perhaps, given the father’s one-time employment, and periodic stints behind the wheel of a 22‑wheeler, might not be a great imposition, the Court accepts that, for the mother and others who are less experienced in and coping with such journeys, that would be probably, in the absence of a perfect solution, the best place for changeovers to occur.

15. Under the heading “Summary & Conclusions”, the family report writer recorded that he found no difference in the relative strengths of the children’s relationships with either parent. Now, there is no evidence before this Court suggesting otherwise.

16. The family report writer also recorded that the children have very strong attachments with both of their parents. Again, there is no evidence before this Court suggesting the contrary. It is clear, and to his credit, the father acknowledged that the children miss their mother since the mother relocated to Sydney in August 2012.

17. The family report writer recorded that the indications are that the children would likely miss their father deeply under reciprocal circumstances. There is no rational basis for making any finding other than that which the report writer thus recorded. 

18. Not surprisingly, the children did not express a wish to live with either parent. There was some ambivalence about any attempt or suggestion that they indicate a preference. Also not surprising is the wish that the mother would return to Town D so that the children, and G in particular, could see her more regularly.  

19. It is no criticism of the mother that she does not propose to return to Town D. The family report writer recorded that the children continued to struggle with parental separation. In paragraph 81, the family report writer revisited the key issue in the dispute relating to the extent to which the child G suffers from a learning disability. As noted earlier, the evidence before this Court, and by that the Court means, necessarily, the expert opinion evidence, does not establish that G suffers from a very serious disability, nor, with respect to the father, does it establish that G’s problems are relatively minor, or that she will ultimately catch up with her peers. The evidence, however, establishes that whatever the nature and extent of G’s difficulties, historically, everything which experts have suggested should be done, has been done, and has been effectively, and that no absence of parental insight, particularly by the father, has impeded or will impede that continuing in the future.

20. It goes without saying that if the children reside with the mother, then those matters would be addressed. To her credit, as the family report writer noted, in paragraph 82, the mother acknowledged that L has a preference to transition into High School with her friends in Town D, and does not want to be separated from her close knit group of friends at this stage. That touches on what the Court perceives to be one of the pivotal issues in the case. Through no fault of the mother, the arrangement she proposes for the children in Sydney must be regarded as novel and untried. There is no rational basis for suggesting that the children would not cope well with those arrangements, nor is there any basis for criticising anything which the mother proposes, but reality demands, however, that the Court be conscious of the comparison between a stable, settled arrangement about which the children express no dissatisfaction, unhappiness, reticence in which, on the school reports, they seem to be thriving, using that term advisedly in the light of earlier findings with respect to G, in which they clearly have social interactions in and around D with one which is largely untied. 

21. There is no expert opinion evidence in relation to the difference between city and country life. The Court draws no inferences save to say that for children who have lived their whole lives in the country, to primarily live in an urban context must have some elements of the unknown and potentially involve some significant adjustment. It is tempting to be diverted by more cerebral concepts and to overlook the simple realities of life, but in this case, that cannot, and should not happen. 

22. The family report writer referred to the possibility that, at some stage, either child may attend boarding school. The Court does not speculate about those matters for a variety of reasons. There are issues of the child’s wishes at that time, the parent’s views, the cost, which is not inconsiderable, and the means of the parents, and their ability to meet such expenses. All that can, and needs to be said about that topic is that if and when the issue arises, it will be an issue to be addressed by the parents in the exercise of their rights of ESPR, and an accord reached. Failing that, regrettably, it may be that they would have to refer the matter to the Court. Neither party seeks any orders about boarding school in the future and sensibly is that so. 

23. The family report writer suggested that, apart from holiday time spent with the parent with whom the children do not primarily reside, one or two weekends per term would be appropriate with changeover at the McDonald’s restaurant on the highway at Town Z on specific days and times. The Court perceives that to be sensible, and appropriate, and that perhaps the most appropriate way in which it could be achieved would be if, in the course of a term, there were two weekends, one to be spent, if the children are primarily residing in Sydney, by the father, and presumably Ms V going to Sydney, one, in the event of the children primarily residing with the father, one weekend in Town D with the mother travelling to D for the weekend, the other weekend involving the Town Z changeover. 

24. Turning, then, to the specific s 60CC factors, the Court does not propose, by reference to each of these, reiterating matters which have already been referred to other than in a summary fashion. Section 60CC(3), views expressed by the children assumes no significance in this case; those views are neutral. Similarly neutral is the nature of the children’s relationship with each of the parents, s 60CC(3)(b), and the other relevant person or persons. There is no evidence adverse to the mother’s case in relation to the maternal grandmother. Ms V impressed as a sensitive and caring, appropriate support person for the father in his nurturing of the children. It is not in doubt, and to her credit, the mother readily acknowledged, as the family report writer reported, that the children like Ms V, they get on well with her.

25. So s 60CC(3)(a) and (b) are neutral. Section 60CC(3)(c) picks up, for the purposes of this case and the Court’s consideration of it, subsection (f) and subsection (i). That is to say, issues of attitude and capacity to promote a close relationship with the other parent. Historically, whilst with hindsight, some of the father’s decision making may be regarded as less than optimal, the Court is not persuaded that either party has a materially greater capacity to promote, encourage and facilitate a close, and continuing relationship between the children and the other parent, nor does either party have a materially greater capacity to provide for the children’s emotion, intellectual, or other needs. Nor has either parent, in the past, demonstrated an attitude to the children and the responsibilities of parenthood which warrants criticism, albeit, on both sides, and perhaps more, albeit marginally so, on the part of the father than the mother, any attitude or demonstrated attitude which would give rise to a rational concern for the future.

26. Not surprisingly, the parties, having decided four and half years ago that they did not wish to continue their relationship together, there have been differences of opinion. Without, in any way, criticising those who drew the affidavits which were presented on Friday 25 January 2013, it is significant to look at the contents of those affidavits. Given the energy which was devoted to seeking, for good reason, to instance events reflecting adversely on the other party, it is little short of remarkable that, to use the colloquial, that is all they could come up with, which is said of both sides of the record. The affidavits are instructive more for what they do not assert than for what they do assert. Given the issues these parties have had to confront and cope with, the history of their litigation, once it commenced, in relation to financial matters, their personality differences and the like, it is, as suggested earlier, little short of remarkable that a great deal more has not emerged of a critical nature about either parent in relation to these topics.

27. No other matters such as family violence, aboriginality, or issues of that kind arise. Section 60CC(3)(e), 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, does not assume significance in a way that assists either party.

28. The difficulties preclude equal time being spent by the children with either parent but they do not constitute hurdles to ongoing, meaningful relationships between the children and either parent. Section 60CC(3)(d) has been alluded to earlier without expressly referring to its terms. The terms of s 60CC(3)(d) require the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parents or other persons.

29. In terms of separation from either parent, the family report writer’s evidence is quite clear; the children will be deeply disappointed or sad whatever the outcome of this case. The simple fact is they would like to spend equal time with both parents. They cannot. They are going to be disappointed in equal measure whether they are to primarily be in the care of their mother or their father, and nothing can change that, and it is fanciful to suggest that it can. Conversely, there is nothing to suggest, and unsurprisingly so, that they would not cope with such separation. 

30. The likely effect of changes in the child’s circumstances would not in most cases, on evidence such as the Court has in this case, assume great significance, or to the extent that they might they would be likely to be overshadowed by other matters, particularly matters relating to attitude to the children’s relationship with the other parent. In reality, given the Court’s findings of fact with respect to the child G’s learning difficulties, and the Court’s inability to accept the evidence establishes the matters asserted on behalf of the mother in that regard, the two issues in the case, or the two pivotal issues, are ultimately s 60CC(3)(d) and potentially the attitudinal matters provided for by subsections (c), (f) and (i) of s 60CC(3).

31. The Court has not found that the evidence establishes, as learned Counsel for the mother submitted it should, that the mother’s attitude within the context of those statutory provisions was materially better to that of the father or that the father has warranted criticism. To the extent that those factors favour either party, they might favour the mother, albeit ever so slightly. 

32. Section 60CC(3)(d) in relation to the children’s circumstances and changes to them thus become focal. As the Court has earlier recorded, notwithstanding the absence of an rational basis for finding that the mother’s proposed arrangements would not result in the children continuing to progress, and develop and in the context of their end of 2012 school reports, flourish in the various ways in which the evidence reveals them to have done, and notwithstanding that the evidence does not establish a rational basis for finding that the children would not establish new, satisfactory, meaningful, happy peer relationships, the reality is that these things have yet to occur, in circumstances in which the children are living, and have lived for most, if not all, their lives to be circumstances which cannot be faulted or criticised in any way in terms of the finished product.

1. That contrast where everything else the Court finds so equal assumes great and ultimately decisive significance in determining where the children’s best interests lie. It would be wrong to suggest that this approach involves any onus on the mother. It does not. Nor does it involve a presumption that a continuation of the status quo is in some way to be preferred. It does not. It involves a consideration of the likely effect of changes in the children’s circumstances. Were the Court to have found fault or deficiency or anything lacking in the children’s current circumstances, the conclusion reached may be different, but there is no evidence which suggests that in any relevant sense, the children’s current circumstances are failing to promote their best interests. The only way in which the children’s current circumstances are deficient, is that they do not permit them to spend equal time with both their parents, but no orders this Court can make achieve that outcome.

2. The case is finely balanced as the submissions of Counsel for the parties readily acknowledge, but on balance and accepting in so doing, the evidence in relation to the probable absence of special needs assistance for the child G at the Catholic school in Town D this year, and the possibly greater opportunity of special assistance in Sydney, to which the mother referred in her evidence, the Court is persuaded on the balance of probabilities that the children’s best interests would be served by their continuing to live in D.  The expression “continuing to live in [D]” is not inadvertent, it is not intended, in effect, as an insult or a criticism of the father, but to highlight the reality that where everything else is so finely balanced, the children’s continued primary residence in Town D, and continuation of the schooling of G there is in her best interests, and L’s transition to high school there is in her best interests.

3. The orders of the Court sought by the parties are almost identical. They differ slightly in relation to the breakup of the school holiday periods. It is common ground that Christmas and school holidays should be halved. Thereafter there are permutations and combinations, none of which is necessarily inherently preferable to the proposals of the other. The Court proposes that in the absence of any agreement to the contrary, the children should spend half of all school holidays with each parent provided that, and the Court can only express this as, in effect, a hope, that in the event of either parent having a special proposal which could only be achieved by having the whole of one of the three mid-year holiday periods with the children, the other parent would accede to that request on the basis that the following holiday period would be adjusted accordingly,  but the Court will not make an order in those terms.

4. The Court will order, there having been some understandable but regrettable difficulties in the past, that the father facilitate the children speaking with the mother during term time on no less than three evenings during the week, and on one day of the weekend, and the father shall stipulate in writing between what times such he will facilitate such telephone contact. The evidence before the Court suggests that such certainty would be in everyone’s interests. 

5. The father gave evidence that he would cause something called “Skype” to be connected or obtained, or whatever one does to procure that, so that the children could communicate with the mother presumably independently of anything which the father or Ms V does or needs to do and the Court accepts the father at his in that regard, and will order that the father cause a Skype facility to be provided for the children at his residence. The Court understands the mother proposes doing something similar. It will not make an order to that effect it is in the mother’s interest to do that.

6. It is, common ground that each party will keep the other party informed of all matters relating to the children’s education, health, residence, schooling, extra-curricular and sporting activities and provide, where possible, advance notice of at least seven days of any meetings or appointments in relation to such issues to enable the other party to participate and/or attend such meetings or appointments and the court will make an order in those terms.

7. Unless any other matter has been overlooked that would appear to provide for all contact which is necessary and appropriate, or at least to provide a framework by way of orders to permit that to occur. 

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 30 January 2013.

Associate:

Date: 21.03.2013