McDougal & York

[2008] FamCA 1068

FAMILY COURT OF AUSTRALIA

MCDOUGAL & YORK [2008] FamCA 1068

FAMILY LAW – CHILDREN – Extremely high conflict between the parents – where there have been allegations and instances of violence on the part of both parents – where the eldest child has determined to live solely with his mother – where there is a benefit to the children in having a meaningful relationship with both parents despite the conflicts – consideration of equal shared parental responsibility as the only viable option – consideration of equal time as the best arrangement to minimise future conflict and relieve the children from the responsibility of choosing between their parents – the exercise of equal shared parental responsibility and time to be spent with the parents will be subject to conditions

Family Law Act 1975 (Cth)

APPLICANT: Mr McDougal

RESPONDENT: Ms York

INDEPENDENT CHILDREN’S LAWYER: Ms Payget

FILE NUMBER: CAF 1277 of 2002

DATE DELIVERED: 26 November 2008

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 23 - 25 June 2008;
17 - 18 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gill

SOLICITOR FOR THE APPLICANT: Ms Heuer

COUNSEL FOR THE RESPONDENT: Ms Godtschalk

SOLICITOR FOR THE RESPONDENT: Ms Stewart

Orders

1. The parents will have equal shared parental responsibility. 

2. The child J born … May 1994 spend time with the father in accordance with his wishes (including the wish to spend time with his father alone) subject the following: 

   (a)If J is to spend time with his father, he will communicate this to his mother and to his father in advance by e-mail or SMS text message.

   (b)       The father agrees and is available to spend time with J.

   (c)The conclusion of the time with his father is to be at J’s sole discretion.

3. The children M born … May 1994 and K born … March 1998 will live with their mother and father equally on a week about basis.

4. With the exception of the Christmas school holidays, during school holidays, the week about arrangement for the children M and K will continue as normal, unless the parents agree otherwise.

5. Unless the parents agree otherwise, during the Christmas school holidays, the children will spend one half of the Christmas school holidays with each of the parents in a three week block.  In even numbered years, the first half of the holidays will be spent with the mother.  In odd-numbered years, the first half of the holidays will be spent with the father.

6. For the purposes of handover of M and K, the children will commence the week about arrangement on each Friday after school.  The week about arrangement will commence on Friday 28 November 2008.  On that day, the children M and K will live with the mother until the following Friday.  On that following Friday, the children will leave the mother’s home to attend school and after school on that day they will attend their father’s house to commence their week living with him.  The weeks will alternate thereafter. 

7. During the Christmas holidays, the half-way point of the school holidays will be the Sunday of the end of the third week of the holidays at 10:00am.  At that point the children will change over to the other parent.  Changeover will occur at McDonalds at B unless otherwise agreed.

8. If Mothers’ Day falls on a weekend on which the children are spending time with the Father, the parents will cause the young people M and K to spend time with the Mother on Mother’s Day each year from 10:00am until 5:00pm.

9. If Fathers’ Day falls on a weekend on which the children are spending time with the Mother, the parents will cause the young people M and K to spend time with the Father on Fathers’ Day each year from 10:00am until 5:00pm.

10. On any occasion where handover cannot occur after M and K’s day at school (such as school holiday periods, Mothers’ Day, Fathers’ Day and if the children did not attend school on the Friday) changeover will occur at McDonalds at B unless otherwise agreed.

11. Each of the young people will telephone the parent with whom they are not spending time as they wish.  In any event, the young people M and K will have telephone communication with the parent with whom they are not living each Wednesday between 7:00pm and 8:00pm.  The parent with whom they are then living will facilitate and bear the cost and encourage the young person’s making the phone call to the land line phone number provided by the other parent or to the other parent’s mobile phone.

12. Each of the parties will keep the other informed by e-mail or SMS text message:

    (a)Of any medical condition of any of the young people that requires an appointment with a medical expert or other health professional. 

    (b)If any of the young people J, M or K will not be attending school on a particular day.

    (c)Of any event the young people are invited to when they would or will be with the other parent or in relation to any change to their extra-curricular activities.

13. For the purpose of Order 12, each of the parties will provide a current e-mail address and mobile phone number to the other and update that information as necessary. 

14. The mother is restrained from bringing the young people into contact with Mr D.

15. The father is restrained from photographing Mr D or causing any person to photograph Mr D. 

16. The Independent Children’s Lawyer and Family Consultant Ms L explain these orders to the young people as soon as practicable.

17. The Independent Children’s Lawyer and/or Ms L explain the options available to J to receive counselling through either the Family Court or any other organisation.

18. It is noted that the purpose of Order 2 is to enable J to spend time with the father (or Ms S) if he so wishes without a breach of any domestic Violence Order that may be in place.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 1277 of 2002

MR McDOUGAL

Applicant

And

MS YORK

Respondent

REASONS FOR JUDGMENT

Introduction  

1. This is a matter that has a long history of Court proceedings.  Unfortunately, it is the children who have been most affected by the duration and intensity of the parents' hostility and by the ongoing proceedings.  The latest family report, dated 11 November 2008, is troubling.  The evaluation of the family consultant is that “All three children carry the emotional burden of the ever increasing toxic relationship between their parents.”  J, age 14, commented: “I am pretty fed up with everything.”  M, also age 14, commented “I am sick of it all.”  K, aged 10, appears to have more insight into her brothers' pain than either of her parents do. 

2. By way of background [and I note that this is not intended to be comprehensive], the parents commenced cohabitation in March 1990 and separated in June 2002.  At that point the children lived with the mother in the family home and spent alternate weekends and often the alternate Tuesday with the father.  The matter came before the Federal Magistrates Court in July 2003 and final orders were made that the children live with the mother, spend time with the father, and that the mother be restrained from relocating with the children.

3. In October 2004, the matter came back to the Federal Magistrates Court for contravention applications filed by both parties, and a relocation application filed by the mother.  All applications were dismissed. 

4. In December 2004, the mother took the children to Queensland.  The father filed a contravention application and the Federal Magistrate issued a recovery order.  The children were returned to live with the father in the family home in March 2005. 

5. The mother filed an application in March 2005 seeking interim property and parenting orders.  Consent orders were made for the mother to have contact, as it was then known, with the children. 

6. On 31 March 2005 orders were made in the Federal Magistrates Court that the children live with the father, spend alternate weekends with the mother, as well as alternate Thursdays overnight and half of the school holidays.  The father was restrained from drinking alcohol and both parties were restrained from removing the children outside Australia.  The matter was then transferred to the Family Court of Australia. 

7. During the period from March 2005 to the final hearing there were several incidents involving actions of Mr D and the mother and the father.  Police were called on several occasions such as alleged threats to the father, trespass on the father's property, and the father calling the police on three occasions requesting that they check the welfare of the children.  On one occasion he was noted to be intoxicated and on all occasions the children were found to be safe. 

8. In February 2007, the father obtained an interim protection order against Mr D, which also included the children.  The father's partner obtained an interim protection order against the mother and Mr D around about the same time.  The father obtained a domestic violence order against the mother by consent in March 2007, and Ms S obtained a personal protection order against the mother and Mr D by consent. Mr D has been charged with contravening the interim orders. 

9. Throughout this period, the children had been living substantially with their father and his partner and spending four nights per fortnight with the mother.  In August of this year, J commenced living solely with his mother and he, that is J, through his mother as a next friend, obtained a domestic violence order against the father and his partner.  J has not wished to spend any time with or to communicate with the father since that time. 

10. The matter has been complicated by the mother's involvement in criminal proceedings in July 2008.  She and her partner, Mr D (although the mother indicated in cross-examination on 17 November 2008 that they are not living in a partner-like relationship) were charged after an incident involving threats and damage to property in relation to the children's babysitter in February 2007.  The mother was not convicted but Mr D was found guilty.  Sentencing is yet to occur and the mother indicated in Court that an appeal is under way. 

11. Other issues in contention in this matter have included the drug addiction and criminal history of Mr D, the mental health of the mother, the alcohol use by the father, and the nature of the relationship between the father and his partner with the children. 

12. I have been assisted in this matter by six family reports, a report provided by the Office of Children Youth and Family Support and two expert reports,  one from the mother's treating psychologist and one from Dr V, the Court appointed expert psychologist.  

13. What has remained consistent across these reports, (which span the period of August 2005 until November 2008), is the difficulty faced by the children in trying to navigate their way through their parents' battle and particularly for the boys a sense of the pressure they feel of having to express their wishes about their living arrangements.  The parents have consistently been warned of the dangerous effect of parental conflict on the children, but have been either unable or unwilling to avoid engaging in verbal attacks on each other.

Orders Sought

1. The orders I have been asked to make in this matter by each of the parties and by the Independent Children's Lawyer are not as divergent as one might expect given the history that I have just related.  Each of the sets of orders during the continuation of the trial in November of this year sought an order for equal shared parental responsibility, although Counsel for the father suggested that if such an order were to be made, the spheres of responsibility ought to be clearly delineated so as not to require the parties to jointly make decisions because of their inability to communicate even in a “business-like” manner.  I will return to this issue in due course. 

2. All parties are also agreed that the young person, J, should spend such time with the father as J chooses.  There is some discussion as to the mechanics of how that choice would be communicated, and as to whether it would require writing in advance or not.  The orders I made indicated that I believe it ought to be communicated.  That is to avoid any possibility that J may turn up to see his father and find that his father is not there because he was not aware of what was happening and also to ensure that there is a regular and recorded system of whatever happens, to restore, one hopes, a meaningful relationship between J and his father.

3. The mother sought that the three children live primarily with her and the father sought that the children, M and K, live primarily with him.  Each of the parties sought that there be at least an extended alternate weekend with the other parent, again, perhaps, a strange order in the circumstances of conflict between the parents. 

4. The Independent Children's Lawyer sought that I make the order recommended by the family consultant, that there be a week about arrangement for M and K, and that, as it transpires, was the order that I have made. 

5. All parties are agreed that the school holidays should be divided equally between each of the parents.  Each of the parties and the Independent Children's Lawyer sought telephone communication with the parent with whom the children were not then living.  They all agreed that the children should spend Mother's Day with the mother; and Father's Day with the father.  I have reflected those arrangements in the orders that I have made. 

6. In essence, what remains in contention is with whom the children should primarily live or in the alternative whether there should be a week about time for M and K; and whether the mother ought to be restrained from bringing the children into contact with Mr D. 

Equal shared parental responsibility

1. I want to commence my consideration for why I have reached the orders that I have by consideration of the question of equal shared parental responsibility.  This was an order that each of the parents sought peculiarly in circumstances where, in my experience, there have been few other parents before me who had been as deeply conflicted as the father and the mother.  Equal shared parental responsibility is something, which in the ordinary course of events, would not be indicated by the relationship between the parties.

2. The research, as referred to by the family consultants and by the experts, suggests that if parents are to adequately parent their children it is necessary that they should be able to communicate at least at a basic level.  It is also important that they should share aspirations about the children; that their routine should be compatible if not the same; and that they have a reasonable geographic proximity. 

3. The Act itself prescribes a presumption that there be equal shared parental responsibility.  This is far from saying that it should apply in all cases and indeed, the Act provides a number of instances where it would not be appropriate for it to apply. 

4. In this case, the difficulty I face which has been articulated and presented by the family consultant and adopted by the Independent Children's Lawyer is that it would not matter which of the proposals I were to accept: the children potentially would be exposed to conflict between the parents.  It is highly probably that if I were to make any of the orders sought by either parent, there would be conflict over those matters which relate to the future long term matters relating to the children.

5. To some extent it is all very well to say there should be delineated areas of responsibility.  The delineated areas of responsibility do not automatically suggest themselves.  There is no reason, for example - and I will come to this in a few moments - why the father rather than the mother should have responsibility about schools.  There is no reason why the mother rather than the father should have particular or primary responsibility about the care of the children medically or dentally. 

6. There is no evidence to suggest that either parent is more capable of making a better decision than the other about any of those matters and there is no independent umpire to whom I could refer any conflict.  The challenge that faces both the father and the mother is to try to find some basis upon which they can cooperate for the benefit of their children, rather than simply enlarging and enlivening the conflict that they have become entrenched in relation to each other. 

7. The problem of the children having to have parents who agree on major matters relating to their welfare is one that I do not lightly put to one side.  I had contemplated imposing orders that would restrain either parent from attempting to change the children's school without consent.  I had contemplated imposing orders that would provide neither would move further away from the other parent within a designated distance without a Court order or consent.  I had contemplated imposing orders that said neither parent would involve the children in any extra curricular activities without the consent of the other parent, and in the end I decided that it was inappropriate to do any of those things. 

8. I do not pretend that this will be easy and, in fact, my determination that there should be equal shared parental responsibility is not the best decision, but in the absence of any other viable option is the least-worst decision.  In that context it seems to me the children are entitled to hope that their parents may be able in the future to put their interests - that is the children's interests - ahead of their own. 

Children’s best interests

1. Under the Family Law Act 1975 I am obliged to make a decision about the children in accordance with the proposition that the children's best interests are my paramount consideration.  In reaching that conclusion, I am directed by the Act to take account of a number of matters.  Those matters, in this case, illustrate some of the areas of contention and I propose to go through them individually. 

Primary considerations

1. The Act prescribes that there are two primary considerations in determining what is in the best interests of the children.  

2. The first of these is –“the benefit to the child of having a meaningful relationship with both of the child’s parents.”  In this case, curiously, given the contempt in which each of the parents holds the other, each parent has, in fact, suggested that there is a benefit to the children in having a meaningful relationship with the other parent. 

3. The reports, in their multitudinous presentation, all suggest that there is benefit to all of the children in having a meaningful relationship with each of the parents.  Each of those reports, and each of the parents, although in some cases grudgingly and dragged out by a team of wild horses, concede that the children love the other parent and that there are things that the children can get from the other parent that cannot be obtained from the first parent or from the parent expressing that view.

4. This means to me that there is a benefit to the children in having that meaningful relationship.  It also means that it is important in that context that they should be given the opportunity to have that relationship.  That does not automatically mean, of course, that the children should spend, as I have ordered, equal time with each of the parents.  However, it certainly confirms the view that in this case, the children should have substantial and significant time with each of the parents and, in fact, each of the parents has suggested that.

5. 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.”  Notwithstanding recent incidents in relation to J (and I do not propose to make any specific findings about precisely what happened with J), I am satisfied that there is little, if any risk, to the children of any physical violence from either of the parents.  I accept that J has asserted that his father has hit him in the head; however I am equally confident, having looked at the history of the matter and for reasons that immediately follow, that it is improbable that this is likely to occur in the future.

1. There is no doubt that the father is a bad-tempered person and there is some evidence of the violence he has exhibited towards J.  I am satisfied from the evidence before me that J was physically frightened, possibly intimidated, by his father in relation to recent events. 

2. To the extent that I would be concerned about any violence that might be occasioned to the children, I note that while I do not agree that the circumstances in which it occurred were particularly desirable or advisable,  J has obtained a Domestic Violence Order against his father.  Whether or not that Order continues is not a matter that I can canvass particularly in this judgment but at the very least it puts the father on notice that if he is going to engage in conduct which involves any violence towards the children there is a precedent for their taking their own action to ensure that there is Court protection for them.

3. As an aside, in relation to this particular incident and to the obtaining of that order although I have indicated I felt it was inadvisable, I accept the evidence of the mother that she felt that in the circumstances she had no choice but to assist J in obtaining that order. 

4. In addition, I note that the boys are of an age where, in the long run, if something happens they can, in fact, vote with their feet and make their own decisions about where they are going to live and what they will do. [This does not of course help K but there is no evidence to suggest any paternal violence directed to her.] It will be unfortunate, however, if all of the children were to grow up with the memory of their childhood being one of perpetual conflict and ultimately having to abandon their parents because their parents were unable to care for them. 

5. It is not the case, however, that parents who appear in this Court need to comply with some template of perfection.  It is a rare human being that does not suffer from some faults and the fact that in the case of the father and the mother, some of these faults have been at the forefront in the minds of each of them, does not necessarily mean that the children cannot, nevertheless, derive benefit from an association with each of them. 

6. In my opinion, the concept that the children will have time equally with each of the parents provides opportunities for each of the parents to work with the children until the children are old enough, ultimately, to make their own decisions.  J, to some extent has made that decision, although I expect at the moment that this is a reaction to what occurred, rather than any long-term decision on his part. 

7. The second element to this consideration is that the father has asserted (and there is some evidence to support the proposition) that the combination of the mother with Mr D is particularly bad for the children.  In particular the father asserts that Mr D’s history, his behaviour and his conduct in recent times in relation to the children's child carer are such that he ought not be part of any relationship with the children and, moreover, that the children may be exposed to violence perpetrated by Mr D if he were on the scene.

8. It is unnecessary for me in these proceedings to make any formal determination about the extent to which Mr D has done the things that he is accused of doing.  It is, however, in the children's best interests, in my opinion, that I should make an order as I have been requested to do, namely that the mother not bring the children into contact with Mr D. 

Additional considerations

1. The other matters that I am to take into account form a catalogue under the Act and I will go through them individually. 

2. First, I am obliged to take into account the views of the children.  In the old days it used to be expressed that I account of the wishes of the children.  “The wishes” is a very strange concept.  The wishes of children almost invariably, in my experience, are that their parents will be together and not fight.  Those wishes will never be complied with in this matter.

3. Their views about where they might live and their views about their parents and the way in which they might relate to their parents are factors which can be derived from discussions with them by people qualified to listen and to appropriately record as well as from the evidence of the parents themselves.  In some cases, Judges feel inclined to talk to the children direct.  I do not believe it was reasonable or possible in this case to do that; nor do I think it would have been advisable.

4. However, it is quite clear, (and it is clear through all of the reports in this matter) that the young people have wanted to, and continue to want to, spend substantial time with their mother. I would like both the Independent Children's Lawyer and Ms L in speaking to the young people to tell them that it is important that they realise that I have listened to what they have said.  I have listened especially to the view that they have expressed that it is important that the dispute should be finished once and for all and that they should not bear the responsibility for having to make decisions that their parents are unable themselves to make.

5. Another matter that I am obliged to take into account is the attitude of the parents to the young people.  In this case, saving only the contempt, derision, anger, disregard, antipathy and vitriol that they bear to each other, each of the parents is supportive of the idea that they should be acting in the best interests of the children.  The Act does not require perfection, as I said, and parents do not have to get it right all the time. 

6. The term "hopelessly conflicted" seems to apply aptly to the father and the mother.  It is, unfortunately, likely that they have accepted the label and will accept the label and make no effort to extract themselves from the quagmire of their despair.  This would be a mistake.  The challenge is for them to find ways in which they can be better parents. 

7. The next matter I am to take account of is the nature of the relationship between the children and the parents and other relevant people.  J has, as I have suggested previously, as a young man, made his own decision at least at this point, but I hope that as a young man he will try to accept some counselling assistance and re-establish his relationship with his father.  That requires on the part of the father a great deal of patience and understanding and tolerance.  That may be difficult for the father but it is, nevertheless, the way forward, in my opinion, for both of them and it is important that J should have the benefit of his father's virtues and other good points. 

8. Otherwise, the other two young people remarkably, perhaps, seem to love both their parents and to see the best in each parent, which is more than can be said of each parent of the other.  It is sad that the children, even someone as young as K, can show more love and maturity than the adults, whose obligation and duty it is to raise them and care for them.  I comment in passing, (although it is not a matter of contention) that there is no doubt that there is an appropriate relationship between Ms S and the two children who will be the object of the sharing of the time with each of the parents.  I am not satisfied that J’s opposition to Ms S is based on anything more than a reflected current antipathy towards his father. 

9. This is a case in which I would urge the parents to move on.  There are both equal and opposing forces of an inability to get on with the other parent and it seems to me that they should recognise that each of them have sought that the other parent have significant and substantial time with the children, which is an implicit recognition of the inherent value to the children in each other as parents, something that they have to acknowledge and work with. 

10. I am also obliged to look at what would be the likely effect of changes on the children.  In this matter, the children may well be exposed to parental conflict in any of the arrangements proposed by either of the parents or in the arrangements that I have made orders about.  That has been the case for some time.  There is no proposal in this matter, short of the children not seeing one parent at all, which would eliminate the possibility of their being exposed to conflict. 

11. The possibility that the children will spend equal time with each parent, at least, answers the children's agonised cry for the process of dispute to end.  In addition, it will end in a way that does not make any one of them or all of them responsible for one result over another.  That is to say that no young person in this matter should feel that they are responsible for "one parent's victory", and I use those words in inverted commas because there are no winners in this situation.  It is important for them that they have the right to be children and are able to express their views without having to be recruited by one parent or the other to his or her side.  I note that both parents accept J’s decisions about what he will do.

12. I am also asked to look under the Act at the practical difficulties that may be brought about by the orders that were being made.  There were no substantial differences between the parents about the arrangements that ought to exist with the children.  No-one raised any particular complaint about the arrangements that would exist in a practical sense for the children in either home - as it finally transpired.

13. I do wish to make a further comment.  This is something that, perhaps, is a dangerous thing to do in this matter but I will do it any event.  At the present point the children are proximate both to each parent and to their school.  It is possible that if in the future as a result of the property proceedings, (which still have to be resolved) that the former family home will be sold that existing arrangements may not be able to exist in exactly the same way. 

14. I seriously thought about whether I would impose an order that required the parents to live almost as if shackled to each other within a certain geographical distance of themselves and the school that the children attend.  This would reflect the fact that parents, when they have children, accept a duty and responsibility to ensure that those things that are best for children occur irrespective of their own personal views or requirements or comfort.  That having been said it seemed to me to be an unreasonable intrusion and possibly imposing an impossible burden on the father to do this.

15. However, I make this comment and hope that it will be accepted in the spirit in which it is given.  It would be sensible for the father, if he is to obtain a new dwelling, to do so in proximity to the school and to the mother's dwelling.  That is the burden and duty and obligation of shared parenthood and to do this minimises the burden that would be placed on the children for travelling if the parents were to live significantly apart from each other.

16. I am also obliged to look at the capacity of each of the parents to provide for the needs of the children.  It is likely that the father is more concerned about his children's advances in schooling than the mother.  However his overbearing attitudes, as evidenced by the incident with J and the change of school language subject dispute, may benefit from some amelioration from the mother's less rigid approach.  Although probably neither parent would appreciate it, their styles may well be complementary to each other even if neither parent would consciously be complimentary to the other under any circumstances.

17. The attitude of each of the parents to their responsibilities as parents requires some comment.  The mother's association with Mr D is a concern.  He must have something going for him that is not apparent to many other people.  She has, however, accepted that he will not be part of the children's lives and, thereby, she is putting the children first.  This is appropriate, and in the circumstances, compulsory because of the order I have made.

18. I take account of the fact that the mother, in my opinion, inappropriately took the children to Queensland and it is fair to say that she is not a person without blemish.  On the other hand, the father has exhibited an unrelenting, untrusting and critical view of the mother and cannot see a scintilla of good parenting in her, at least in anything he acknowledges verbally.  This is also an abrogation of the responsibilities of parenthood and as the professional reports show his opinion of the mother is not true. 

19. I am obliged again to take account of violence.  The Act prescribes that I take account of it twice.[1]  The father has reasonable cause to be concerned about the incident involving Mr D and the mother and the drill and drilling holes in the child carer's door.  Even if the mother has been acquitted and even if she was not personally committing violence and although the children did not witness the event, they must have been aware at least in part of a terrifying siege.  Being involved in that activity in any way is scarcely providing a role model appropriate for the children. 

    [1] As a primary matter and also as an additional consideration.

20. Without making specific findings in a number of incidents, (not just this one), the willingness of each parent to escalate conflict rapidly is to be deplored and cannot be in the children's best interests.  For instance, the fact that there are Domestic Violence Orders as I have listed above between J and the father; between the father and the mother and Mr D; between Ms S and the mother and Mr D; and there is possibly at least one interim DVO about Mr D, which included the children. 

21. These are possibly illustrative of the willingness of the parents to express conflict in any available theatre of operations.  However, the Domestic Violence Orders, apart from J’s, do not seem to have had any particular effect on the children and I note that at least the final orders that were made were made by consent.  Mr D has been charged with a breach of a Domestic Violence Order and I have made mention of that already. 

22. I have considered the need for finality of litigation, which is another factor I have to take into account.  If I were to give one parent, or to restrict one parent from doing certain things (such as relocating or changing the children’s school or extra curricular activities), I would simply be inviting further applications to this Court.  It is also the situation where the simple stipulation that parents were not to do something would not prevent them from being in conflict.  It may be very difficult, indeed, for the parents of J, M and K, to find a way in which they can reach some form of formal consultation and agreement as the Act requires them to do.  This is the obligation imposed by the Act and that is what they have to do.  There is no way I can make this easier. 

23. This is most clearly illustrated by the fact that I could not find a way in which I could possibly allow these children to spend some part of Christmas Day with each of their parents.  What that means is that the parents will have to live with the proposition that the children will spend one Christmas with a parent one year; and the Christmas with the other parent the following year.  That is the consequence of what has occurred.

24. There are other issues between the parents that bear upon some of these matters.  The first is Mr D’s drugs and alcohol.  However, as I mentioned and will not repeat, he has been excluded by order from the children's lives and will remain outside of any sphere of influence upon the children. 

25. The mother's mental health was a matter of query by the father.  Even if I were to find that in the past she has had some mental illness of some sort, there is no evidence that presently affects her ability or affects her ability in the foreseeable future to adequately parent the children. 

26. The mother has equally questioned the father's use of alcohol and there have been some corroborative events during the course of the evidence before me which would support the fact that the father has a greater addiction to alcohol than he is, perhaps, prepared to acknowledge. 

27. I am not, however, able to make any definitive finding about this, although it seems clear there is a problem of some sorts.  This remains a concern in being parallel with the possibility that the mother may resume at some point in the future relationship with Mr D.  In other words, I put the two of those things on an equal concern basis and I say that they are matters which are parallel to and which to some extent offset each other and show that the children have a difficult road ahead unless the parents are prepared to put the children’s interests first.

28. It was suggested I make an order placing the children on the PACE alert list.  I do not see any basis on the evidence before me which would suggest that there is any genuine risk of the children being abducted by either parent and I decline to make any such order in anticipation of something that at present in evidence.  

Equal time

1. I want to make a few brief comments about why I chose the fact that the children should spend equal time with each of the parents. Under s 65DAA of the Family Law Act, if I make an order for equal shared parental responsibility I must consider the possibility that the children should spend equal time with each of their parents.  If I were to determine that should not be so then I am to determine whether they should spend substantial and significant time with each of their parents.  I am to consider in relation to those matters whether it would be reasonably practicable for them to do so. 

2. Notwithstanding what I might loosely call the now relatively well-known McIntosh-Chisholm model, there are occasions where other options for the children to spend time with each of their parents are equally fraught with difficulty.  In this case the equality of time that the children spend with each parent at least sends a message to the children that neither parent has won and that the children, the young people, are relieved the responsibilities of making a choice. 

3. It is also a recommendation made by the Independent Children's Lawyer and was a recommendation, in [the] unusual circumstances, from the family consultant, Ms L. 

4. The question remains, given the high conflict between the parents, is it reasonably practicable for this to occur. 

5. These are the reasons why I think that it is reasonably practicable:  First it minimises confusion for the children.  They have a set pattern that runs from week to week without having to worry about mid-week transfers and changes. 

6. Secondly, it also minimises the complications associated with transition happening mid week, so that things that might occur on a Friday that require particular books or clothing or shoes can occur on a regular basis with each parent rather than having to be the subject of concern mid week. 

7. In this case, unlike in some others, the parents and the school are all relatively proximate to each other and, at present in that narrow geographic confine, each of the parents has adequate accommodation.  I have mentioned previously that if the father has to sell his house then it would be sensible for him to find accommodation somewhere in that general area, noting that this is a difficult thing indeed.

8. Those then are my reasons and I wish the parents well in relation to the children.  I will see them again in the New Year when we determine what happens about property. 

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

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