Medved & Scrivens
[2022] FedCFamC1F 1059
Federal Circuit and Family Court of Australia
(DIVISION 1)
Medved & Scrivens [2022] FedCFamC1F 1059
File number(s): MLC 11306 of 2020 Judgment of: STRUM J Date of judgment: 23 December 2022 Catchwords: FAMILY LAW – PARENTING – Where it is agreed that the parents will have equal shared parental responsibility – Equal shared parenting time versus substantial and significant time – different personalities and parenting styles – No real risk to children identified. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60, 60B, 60CA, 60CC, 61DA, 65DAA, 69ZT Cases cited: Goode v Goode (2006) FLC 93-286; [2006] FamCA 1346
Hall & Hall (1979) FLC 90-713; [1979] FamCA 73
Kennedy v Kennedy [2010] FamCAFC 195
M v M (1988) 166 CLR 69; [1988] HCA 68
Mallory & Mallory [2019] FamCAFC 221
Mazorski v Albright [2007] FamCA 520
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Scott & Scott [2019] FamCA 306
Wordsworth & Wordsworth [2021] FedCFamC1A 28
Division: Division 1 First Instance Number of paragraphs: 130 Date of hearing: 4-5 July 2022 and 5 September 2022 Place: Melbourne Counsel for the Applicant: Ms Wheeler Solicitor for the Applicant: Kennedy Partners Counsel for the Respondent: Mr Arnold Solicitor for the Respondent: Robert A Mchugh ORDERS
MLC 11306 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MEDVED
Applicant
AND: MR SCRIVENS
Respondent
order made by:
STRUM J
DATE OF ORDER:
23 DECEMBER 2022
THE COURT ORDERS THAT:
1.All extant parenting orders be discharged.
2.The parties have equal shared parental responsibility for the children X born 2015 and Y born 2017 (“children”).
Living arrangements
3.The children live with the mother, save as otherwise herein provided.
4.The children live with the father as follows:
(a)During school term:
(i)From the commencement of Term 1 in 2023, on an alternating weekly basis:
A.In week one - from the conclusion of school (or 3:30pm if a non-school day) on Friday until the commencement of school on the following Tuesday (or 9am if a non-school day); and
B.In week two - from the conclusion of school (or 3:30pm if a non-school day) on Thursday until the commencement of school (or 9am if a non-school day) on Friday.
(ii)From the commencement of Term 2 in 2023, on an alternating weekly basis:
A.In week one - from the conclusion of school (or 3:30pm if a non-school day) on Thursday until the commencement of school on the following Tuesday (or 9am if a non-school day);
B.In week two - from the conclusion of school (or 3:30pm if a non-school day) on Thursday until the commencement of school (or 9am if a non-school day) on Friday.
(iii)From the commencement of Term 3 in 2023 - for a continuous period of seven nights, from the conclusion of school (or 3:30pm if a non-school day) on Friday until the conclusion of school (or 3:30pm if a non-school day) on the following Friday.
(b)During school term holidays:
(i)In 2023 and alternating years thereafter - for the second half of the holidays, to commence at 9am on the middle day of the holidays (or the day closest thereto), and concluding at 6pm on the day prior to the commencement of the next term;
(ii)In 2024 and alternating years thereafter - for the first half of the holidays, to commence at 9am on the first day of the holidays and concluding at 6pm on the middle day of the holidays (or the day closest thereto).
(c)During school summer holidays:
(i)In 2022/2023 - for alternating blocks of four nights with the father and four nights with the mother;
(ii)In 2023/2024 and alternating years thereafter (excluding the Christmas / Boxing Day period provided for in paragraph 5(a) herein) - for the first half of the holidays, commencing at the conclusion of the last day of the school term (with the second half to be spent with the mother, to ensure that each party has half of the holidays, excluding the Christmas / Boxing Day period);
(iii)In 2024/2025 and alternating years thereafter (excluding the Christmas / Boxing Day period provided for in paragraph 5(a) herein) – for the second half of the holidays, commencing at 9am on the middle day of the holidays (or the day closest thereto) (with the first half to be spent with the mother, to ensure that each party has half of the holidays excluding the Christmas / Boxing Day period).
Special days
5.Notwithstanding paragraphs 3 and 4 herein, and subject to the travel provisions in paragraphs 9 and 10, the children spend time with the parties as follows:
(a)At Christmas:
(i)In 2022 and alternating years thereafter - with the mother from 7pm on Christmas Eve until 2pm on Christmas Day and with the father from 2pm on Christmas Day until 7pm on Boxing Day;
(ii)In 2023 and alternating years thereafter - with the father from 7pm on Christmas Eve until 2pm on Christmas Day and with the mother from 2pm on Christmas Day until 7pm on Boxing Day;
(b)With the mother:
(i)From 9:30am until 3pm on Easter Sunday;
(ii)On Mother’s Day from 5pm on the Saturday immediately preceding Mother’s Day until 5pm on Mother’s Day;
(iii)If the mother’s birthday or the children’s birthdays fall on a day when the children are living with the father, the father’s time with the children be suspended and the children spend time with her for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day.
(c)With the father:
(i)On Father’s Day from 5 pm on the Saturday immediately preceding Father’s Day until 5pm on Father’s Day;
(ii)If the father’s birthday or the children’s birthdays fall on a day when the children are living with the mother, the mother’s time with the children be suspended and the children spend time with him for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day.
Audio and video calls
6.Each parent encourage and facilitate audio or video communication between the children and the other parent whilst the children are in their care as requested by the children but no less frequently than once every three days.
Changeover
7.Where changeover is to occur at the conclusion or commencement of school, unless otherwise agreed, changeover take place at the children’s school(s).
8.Where changeover is to occur otherwise than at school, unless otherwise agreed, the party with whom the children are due to live / spend time collect the children from the other party’s home.
Travel
9.The parties each be permitted to take the children out of the Commonwealth of Australia provided that such travel occur during the children’s time with them, and in addition:
(a)The mother be permitted to travel with the children for a cumulative period of up to three weeks in each year; and
(b)The father be permitted to travel with the children for a cumulative period of up to three weeks in each year.
10.For the purposes of overseas travel pursuant to paragraph 9 hereof:
(a)The travelling parent provide written notice to the other parent of their intention to travel overseas and the intended travel dates not less than 3 months prior to the date of travel;
(b)Each party only be permitted to travel overseas with the children over the period from Christmas Eve to Boxing Day on one occasion in each four year period;
(c)The travelling parent provide the other parent the flight details, travel itinerary, accommodation and contact details during the proposed travel not less than one month prior to the date of travel;
(d)During any period of overseas travel, each party facilitate audio or video calls between the children and the non-travelling parent not less than twice per week, and failing agreement each Tuesday and Friday, at times which accommodate the time zones of each party.
11.The parties:
(a)do all acts and things and sign all documents necessary to ensure that the children each hold a valid Australian passport; and
(b)share the costs of obtaining and renewing such passports.
12.In relation to the children’s passports, each parent hold one child’s passport, with the passport to be made available to the travelling parent forthwith upon request.
Communication
13.The parties do all things necessary to use and continue to use App Close (or such other agreed parenting communication application) for the purposes of communicating in relation to the children, including noting the dates of activities and other important dates and like events for the children.
General provisions
14.Upon request by the other party, each party authorise the other to obtain from the children’s medical practitioner/s copies of any reports, correspondence or other documents relating to the children.
15.Each party:
(a)Inform the other of any change of residential address, telephone number or email address, not less than seven days before the change or, if not reasonably possible, as soon as practicable thereafter;
(b)Inform the other forthwith of any illness or injury requiring medical attention sustained by the children, or either of them, whilst in their care, and provide details of the treatment received together with the name and address of the treatment provider and/or location at which the child is or was seen or admitted;
(c)Inform the other forthwith of any prescription or other medication the children, or either of them, are required to take whilst spending time with the other parent, and ensure such medication is provided to the other parent for the period during which the children, or either of them, are to be in the other parent’s care, to be returned to the providing parent at the conclusion of that time;
(d)Be at liberty to provide a copy of these orders to any school or medical practitioner upon whom the children, or either of them, may attend from time to time, or as may otherwise be necessary for the purpose of giving effect to these orders;
(e)Provide to the other party a copy of any invitation or notice received by them relating to or involving the children, or either of them, during the time they are in the other party’s care;
(f)Be permitted to liaise directly with the children’s school(s) and sporting associations to receive notices, information, newsletters, reports, photographs and any other necessary information about or relating to the children’s progress or activities and be at liberty to attend and participate in any and all school and extracurricular events and functions (including parent teacher interviews, performances or concerts) at which parents ordinarily attend.
(g)Each of the parties by themselves, their servants and agents, be and are hereby restrained from:
(i)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party to or in the presence or hearing of the children or either of them, and from permitting or abiding any other person to do so; and
(ii)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings, with or in the presence or hearing of the children, or either of them, and from permitting or abiding any other person to do so.
16.All extant applications otherwise be dismissed and proceedings removed from the docket of the Honourable Justice Strum.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Medved & Scrivens has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
INTRODUCTION
The applicant mother, Ms Medved, and the respondent father, Mr Scrivens, are unable to reach agreement with respect to parenting orders for the children of their relationship, X, born 2015 (aged seven years), and Y, born 2017 (aged five, nearly six years). This is so, notwithstanding the fact that they have been able to resolve their financial dispute, final orders having been made in that respect by consent on 5 January 2022.
The mother is a health professional. The father is a health professional who also provides consultancy services.
The website of Allied Health Professions Australia describes health professionals as “experts […]”, treatment by whom “can be used to help individuals, families, groups and organisations”.[1] It is somewhat ironic that, despite each party having achieved success in their professional lives, they have been unable to apply their skills to resolve the issues between them in their personal lives, albeit that this is not a complicated case. They bring to mind the dictum: “physician, heal thyself”.
[1] Allied Health Professions Australia (ahpa.com.au)
These proceedings were initiated by the mother, who filed an Initiating Application on 16 October 2020. Most recently, she filed a (further) amended Initiating Application on 14 January 2022. The father filed a Response to Initiating Application on 30 October 2020. Most recently, he filed a (further) amended Response to Initiating Application on 21 January 2022. Shortly prior to trial, together with their case outlines, each party provided a minute of orders sought. During trial, the issues between the parties narrowed and, for the assistance of the Court, they jointly tendered a minute of orders, in which their respective proposals, where different (to those in black), were set out in different colours (pink for the wife and blue for the husband). The ambit of the remaining dispute is therefore narrow.
There is no dispute in relation to parental responsibility; it is agreed between the parties that they should have equal shared parental responsibility and an order will be made to that effect.
In summary, the remaining issues between the parties relate to the amount of time the children are to live or spend with the father and how quickly such time should be increased.
The mother seeks orders that, during school terms, the children live with her and spend time with the father, ultimately increasing to five nights per fortnight by the commencement of third term in 2023, but no more.
The father seeks orders that, during school terms, the children live equally with each parent in a week-about arrangement from the commencement of second term in 2023.
In respect of school term holidays, the father seeks one half thereof commencing in 2023. The mother proposes that, until the commencement of the 2024 school year, the children should only spend a block of six days with the father during such holidays.
In respect of school summer holidays, the parties agree that time should gradually increase. The mother proposes that, by the 2024 - 2025 summer holidays, the children commence to spend alternating weeks with each parent, save for the days of and around Christmas. The father proposes that, by the 2023 - 2024 holidays, the children spend alternating halves with each parent, save for the days of and around Christmas.
This is a matter that could and should have resolved through sensible discussions between and compromises by each of the parties. There are no serious allegations of family violence or serious concerns of risk to the children that are supported by the evidence. This is simply a case of two parents who both love their children very much and who are both good parents, albeit each in their own, differing ways. The scope of disagreement between them is narrow and largely stems from the parents’ very different parenting styles.
For the reasons that follow, I will order that the parents have equal shared parental responsibility for the children and that, inter alia, their time with the father increase such that, by commencement of term three in 2023, the children commence to live equally with the parents in a week-about arrangement.
BACKGROUND
The mother was born in 1977 and is 45 years of age. The father was born in 1973 and is 49 years of age.
The parties commenced cohabitation in late 2010 and married in late 2012. The father was previously married and has an adult son from his first marriage, aged 26 years. The mother asserts that they separated under the same roof on 31 August 2020 and that the children and she vacated the former matrimonial home in Suburb B, Victoria, on 19 October 2020. The father asserts that separated on 12 October 2020 and the mother and children vacated the home on that day. Nothing whatsoever turns on the precise date of separation; on either view, the parties and the children ceased living together in the former matrimonial home in mid-October 2020.
On the first return of these proceedings, on 4 November 2020, X was aged five years and Y was aged three (nearly four) years. Interim orders were made by a Senior Judicial Registrar, not by consent, which provided for the parties to have equal shared parental responsibility for the children and, in summary, for them to live with the wife and to spend time with the father four nights per fortnight.
Orders were also made for both parties to be psychiatrically assessed and for a family report to be prepared, which was prepared by Dr C, forensic psychologist.
Psychiatric assessments were prepared by Dr D, in respect of the father on 13 January 2021 and the mother on 16 January 2021. In respect of the father, Dr D opined that he did not then suffer from a diagnosable psychiatric disorder and that whilst he described “a few obsessional personality traits such as a concentration on order and punctiliousness, and a degree of rigidity and a need for control”, they were “not pervasive or severe enough to warrant a diagnosis of a [sic] Obsessive-Compulsive Personality Disorder”. Dr D concluded:
Although his need for control does no doubt provide assistance in his professional life and pursuits, it will impact his capacity to deal with situations in the care of the children where resonance and flexibility are required. This is likely to surface more fully when the children are going through adolescence, rather than their younger years. …
In respect of the mother, Dr D opined that, although she did not then meet the criteria for an adjustment disorder according to the DSM-5, in that there had not been a significant impairment in functioning, he diagnosed her as having an unspecified stressor related disorder. He reported that, in respect of her anxiety, it was “likely to be impacting upon her capacity to be available for the children, especially if they are distressed themselves. This may be a contributory factor in the children’s reactions of being clingy and insecure in regard to separations from [Ms Medved]”. Although the mother reported to Dr D that she was suffering from a reaction to the parties’ separation, he opined that it was “likely to be impacting upon her capacity to be available for the children, especially if they are distressed themselves. This may be a contributory factor in the children’s reactions of being clingy and insecure in regard to separations from [Ms Medved]”. However, he further opined that:
There is a possibility that her level of anxiety had existed prior to the separation and is a long standing trait, rather than a temporary response. Although it is difficult to properly assess longitudinal personality traits on a cross sectional basis, and even more difficult to separate out these from the effects of her Stressor Related Disorder, there certainly is a possibility that her anxiety in response to the children’s behaviour is long-standing. Her anxiety was manifest in the assessment, and she did require continual intervention on my part to keep her to point. If this was a sign of behaviour during the marriage, then it is possible that she may have experienced the father as controlling and intervening.
By the time of the trial, it was agreed by the parties that those assessments were of little, if any relevance, to the issues remaining for determination and neither party sought to cross-examine Dr D. However, the assessments were in evidence and I consider the passages to which I have referred above as possibly explanatory of the complaints and concerns voiced by each of the parents in relation to the other.
A family report was prepared by Dr C dated 12 March 2021. Although by the time of trial, some 18 months had passed, in the context of young children, neither party sought an updated report. In those circumstances, I infer that neither party thought an updated report was necessary. He was cross-examined over the course of about two hours, on the last day of the trial, on 5 September 2022. The parties’ respective concerns for the children and complaints about the other are addressed in Dr C’s report and were also canvassed in cross-examination. His evidence was of great assistance and, in many respects, more so than that of the parties.
I accept Dr C’s assessment in cross-examination that the children have “two loving parents who are both highly invested in them and they benefit enormously from spending significant time with both of them and, where possible, they should in [his] view spend time with each of their parents to the maximum extent possible, which … is commensurate with what the legislative framework says”, albeit that the parents “have very different parenting styles and views about their children”. His assessment of the parents accords with mine, having had the benefit of hearing and observing them in the witness box over the course of two days.
The gravamen of this case is why, in circumstances where it is agreed the parties are to have equal shared parental responsibility for the children and the mother now concedes that their time with the father should increase from four nights to five nights per fortnight, it should not increase to seven nights per fortnight as he seeks. Neither the mother nor her counsel could clearly enunciate at trial why, in circumstances where she concedes that it would be in the children’s best interests to spend time with the father over the course of five nights per fortnight, it would not be in their best interests to do so over seven nights per fortnight. In the penultimate paragraph of his family report, Dr C opined (in March 2021) that, at the point that Y commences school (namely, in 2023), “it would be appropriate to consider an equal shared care arrangement, and even a week about configuration. These children have two loving and involved parents, and the aspirational goal should be that they live with their mother and father evenly”. He confirmed in cross-examination that he remains of that expert opinion.
In this regard, the mother, in her trial affidavit filed 20 May 2022 at [45], contends:
… Whilst “aspirational “ I dispute it is an appropriate arrangement, and say it is not in the children’s best interests, given what I say is the background to our relationship during the marriage and the history of family violence (which [Dr C] conceded were contested facts before him) and the continuing family violence and the manner in which care and parenting matters have transpired, since that time.
Whether or not an equal shared care arrangement, even a week about configuration as the father seeks, is an appropriate arrangement, being in the children’s best interests, is for me to decide.
EVIDENCE AND CREDIT
Each of the parties was represented by counsel at trial. The evidence of each of them, as well as that of Dr C, was tested in cross-examination. They were the only witnesses.
Each of the parties presented as caring, concerned and competent parents. They both appeared to have limited trust in the other, however it was difficult to ascertain clear and cogent reasons therefor, other than the breakdown of their relationship and the resultant acrimony between them. That is not to say, however, that neither of them cannot be the subject of some modest criticism; they can.
In the case of the wife, she struck me as having an unnecessarily and unjustifiably parsimonious approach to the time to be spent by the children with the father. For example, she told Dr C in her interview with him in February 2021, some three months after the parenting orders made by a Senior Judicial Registrar, that “the current 10/4 fortnightly arrangement had not served the children well” but that “I don’t think the 10/4 arrangement itself is an issue, I think it’s too fast”; that neither child “want to go to their dad”; that “I don’t know exactly why, I can only say it’s a developmental attachment issue”; that “there [sic] not coping”; that “I can only put it down to the fact that it was too fast”; and that “I would like for it to be pulled back, and gradually moved back to the 4/10” arrangement. On 12 March 2021, Dr C released his report in which he made recommendations, inter alia, for the remainder of 2021 and for 2022, until Y commenced school in 2023. In the final paragraph of his report, he said that the “children have two loving and involved parents, and the aspirational goal should be that they live with their mother and father evenly”. He also said:
Perhaps the best way to proceed at this point would be to retain the current arrangement for the remainder of 2021, before extending the children’s time at the beginning of next year. This will allow the children to continue to adjust to living between two households, by that point, [Y] will be nearly 5 years of age, and developmentally more able to accommodate increased time with his father. As of the beginning of 2022, it would be my recommendation that the children live with their father three nights one week (e.g., Friday to Monday), and two nights the next (e.g., Wednesday/Thursday).
Notwithstanding Dr C’s recommendation and the effluxion of time, the mother refused to countenance any increase in the children’s time with the father in 2022, such that at trial they continued only to spend four nights per fortnight with him.
In her trial affidavit, the mother alleges that, over time, culminating in separation, the father “became increasingly controlling, dismissive and undermining” towards her and that, over the years, she was left “feeling isolated, insecure and invalidated” (at [10]). Further, she alleges he made unilateral decisions and “demeaned, humiliated and undermined” her (at [11]). This is denied by the father. However, even if true, in circumstances where the mother concedes that there should be (and seeks orders for) equal shared parental responsibility and proposes that the children should spend substantial time with the father (namely, ultimately five nights per fortnight), it is difficult to understand how an additional two nights will have any appreciable deleterious impact upon the children or, put another way, not be in their best interests as required by s 60CA of the Family Law Act 1975 (Cth), taking into account the matters set out in ss 60(2) and (3).
Similarly, in the case of the father, he too is not without criticism. In particular, I refer to the mother’s proof of evidence which was tendered by her on the first day of the trial, 4 July 2022, which dealt with matters subsequent to her reply affidavit filed on 10 June 2022. The children were in the father’s care in mid-2022, during which time he had booked a trip for them to E Region. During the night of Friday into Saturday of the trip, Y was unwell, coughing and having difficulties breathing, to the point where the father called an ambulance. Paramedics advised him to take Y to hospital, which he did. Y was eventually discharged, and the father, his new partner and the children drove to E Region, notwithstanding that Y was unwell. The father did not see fit to advise the mother until after their return to Melbourne a few days later. When the mother raised the issue with him, he merely responded: “Thank you for your note. E Region has comprehensive on-site medical facilities. In this case none were needed”. That is beside the point; not only was Y unwell, but he was so in the then still prevailing climate of Covid-19. It does not reflect well upon the father, all the more so with a trial listed to commence a few weeks thereafter.
When the children returned to the mother on Monday they were both unwell. The following day, the mother and they all tested positive with Covid-19. The children were next due to spend time with the father from Thursday to Friday that week and did so, notwithstanding that they were still within the seven day isolation period for Covid-19. Whilst that, in itself, does not appear to have been improper, it transpires that, during that time, the father took them to Suburb F airport, G Shopping Centre and a McDonald’s playground. Whilst the children had apparently tested negative during this latter time with the father, they were nevertheless still within the mandatory isolation period. When this was pointed out to the father by the mother, he responded, inter alia: “I would encourage you to maybe speak with someone about how to communicate with other adults. Your angry tone is not appreciated and quite inappropriate really”. Again, this does not reflect well upon the father.
In their respective evidence, both in their affidavits and in cross-examination, the parents voice other examples of complaints they have or concerns they hold about the other, the other’s parenting of the children and the other’s interaction with him/her. However, in my view, these matters neither add to, nor detract from, the main issue in this case - whether the children should live or spend time with the father for five or seven nights per fortnight, in circumstances where equal shared parental responsibility is conceded. These complaints and concerns were put by counsel for each of the parties, particularly counsel for the mother, to Dr C in cross-examination but he did not resile from his report or the recommendations therein.
In particular, as referred to above, in the case of the mother, she alleges that, as their marriage progressed, the father became increasingly controlling, dismissive and undermining towards her, leaving her feeling isolated, insecure and invalidated; that he increasingly made unilateral decisions; that he demeaned, humiliated and undermined her; and that, when she offered an opinion, he scoffed at it, dismissed it or harangued her as to why she was wrong. Whilst she gives some examples, her are allegations are largely in the nature of argument or conclusion and, whilst admissible under s 69ZT, nevertheless have little weight. More particularly, it is difficult to understand the nexus between those allegations, even if true, and the mother’s contention that equal shared care of the children would not be in their best interests, in circumstances where she (as the applicant) proposes that the parties have equal shared parental responsibility and the children spend five (but not seven) nights per fortnight with the father. Simply put, and as I repeatedly asked counsel for the mother: if the father can have equal shared parental responsibility with her and it is in the children’s best interests to spend five nights per fortnight with him, why is it not in their best interests to spend seven nights per fortnight with him? I was unable to discern any tangible reason.
The observations of Austin J in Scott & Scott [2019] FamCA 306 at [45] - [46] are apposite in this case:
45.This case is quite unlike one in which the resolution of contested allegations of family violence would (or even might) affect the nature of the parenting orders made. For example, in some cases, the proven perpetration of family violence by a parent may warrant orders which entirely eliminate that parent from the child’s life, or protect the child by the imposition of supervision, or drastically curtail the time spent by the child with that parent. In cases of that type, it would probably be necessary to determine the factual dispute (see Amador v Amador (2009) 43 Fam LR 268 at [84]-[88], [94]-[96]). As the Full Court said in that case (at [88] and [95]):
…in appropriate cases, it may be important to make findings of this nature [pertaining to family violence] if they are available and necessary to determine what is in the best interests of the child…
…
The best interests of a child the subject of an application for a parenting order must require that the court determine relevant allegations of violence where that can be done…
(Emphasis added)
46.Second, the parties’ evidence was almost entirely uncorroborated and neither appeared to give more credible accounts than the other. Additionally, neither party was seriously tested in cross-examination about the truth or accuracy of their allegations and denials of family violence. In those circumstances, deciding the controversy would be more akin to speculation than forensic fact finding.
(Emphasis in original)
In the present case, I am similarly of the view that the resolution of contested allegations would not affect the nature of the parenting orders made. They do not go to the ultimate issue, namely, what is in the best interests of the children. That is because, those contested allegations, when put to Dr C did not lead him to change his recommendations.
In Hall & Hall (1979) FLC 90-713 at 78,819 - 78, 820, the Full Court said:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a)There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p. 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c)While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d)Hence, the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e)Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child’s welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f)Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court’s investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g)It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h)Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation. We draw attention to an article by Mrs. A. Marshall, Director of Court Counselling Sydney Registry – “Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia’’. The article appears in the March 1977 edition of Australian Social Work, vol. 30 No. 1, p. 9 and at p. 11 appears the passage:
“Family Law reg. 117 provides for the cross-examination of a counsellor in relation to the Report. It is seen as an advantage by counsellors that they can in this way be held accountable for the Report.’’
(i)Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied. In the case of Harris (supra) Fogarty J. said at FLC p. 76,474; F.L.R. p. 289:
“It is in my view inimical to the proper workings of the Court and in particular to the proper carrying out of the functions of a welfare officer that it might be thought by practitioners or litigants that welfare officers or their reports occupy some special or privileged position before the Court unchallenged or unchallengeable but yet perhaps decisive of the issue. Custodial proceedings still basically fall to be determined by the Court in accordance with the traditional system of determining cases. Where a welfare report is delivered which contains either factual matters or matters of opinion which a party desires to challenge but is not permitted to do so that party may be pardoned for feeling that justice has not been seen to be done.”
Similarly, in M. and M. (1978) FLC 90-429 at p. 77,182; (1978) 30 F.L.R. (Notes) at p. 562, Marshall S.J., in adopting the views of Fogarty J. set out above, stated:
“If the contents of such a report are not open to challenge by cross-examination the Court would leave itself open to the criticism of conducting a trial `by report’ rather than on the whole of the evidence.’’
This Court is in full agreement with the views set out above.
More recently, in Kennedy v Kennedy [2010] FamCAFC 195 at [77], the Full Court stated:
It must be remembered that while the recommendations of a report writer are of considerable weight ultimately it is the role of the judicial officer, who has the advantage of hearing all the evidence, and assessing the demeanour of parties and their witnesses, to determine what is in the best interests of a child. The role of the report writer was discussed by the Full court in Hall & Hall (1979) FLC 90-713 at 78,819, and approved by subsequent Full Courts (see D & P [2006] FamCA 170 and Andrew & Delaine [2009] FamCAFC 182; Friscioni & Friscioni [2010] FamCAFC 108; Malak & Mairie [2010] FamCAFC 170).
As I have noted above, Dr C was cross-examined over the course of about two hours by counsel for both parties. I found his evidence, both in his family report and in cross-examination thereon, to be valuable and relevant and of assistance in forming my ultimate conclusions. Whilst his views coincide with mine, it is not because they have been accepted automatically but because I have found them consistent with the body of the other evidence before me. I turn therefore to that evidence.
FAMILY REPORT
At the time of Dr C’s assessment in early 2021, the children were aged 5 and 3 years respectively. Pursuant to the orders made by the Senior Judicial Registrar late the previous year, they were living with the mother and spending a total four nights per fortnight with the father. Notwithstanding the passage of time since then, neither party sought an updated family report ahead of trial - in particular, the mother who disagreed with his report dated 12 March 2021.
Dr C observes at [2], and I agree, that “[t]here is very little in terms of coparenting between the parties”. He continues:
Although there are text messages exchanged between the parties on a fairly regular basis, these are generally oriented around the practical arrangements of the children transitioning between the two homes. There is limited collaboration on matters of greater substance relating to decisions affecting [X] and [Y].
Consistent with the wife’s evidence, and as noted above, Dr C reports at [15]:
[Ms Medved] indicated that the current 10/4 fortnightly arrangement had not served the children well. She explained, “I don’t think the 10/4 arrangement itself is an issue, I think it is too fast “. She said that neither [X] nor [Y] “want to go to their dad”. She went on, “I don’t know exactly why, I can only say it’s a developmental attachment issue”. … She said that since spending time with their father under the current arrangements, “they’ve been far more clingy”. She said that the children particularly struggled when they knew they would be away from her for a three night block. She said also that [X] had begun exhibiting nervous behaviours, such as biting the skin on her fingers, complaining of stomach pains, and experiencing nightmares. She summarised, “there [sic] not coping”, and, “I can only put it down to the fact that it was too fast”.
Notwithstanding the mother having advised Dr C in February 2021, some three months after the making of the orders for the children to spend a total of four nights per fortnight with the father, that such arrangement had not served the children well and that they were not coping, which complaints she continued to maintain at trial, it is noteworthy and somewhat irreconcilable that she did not therefore seek to reduce that time at trial.
Further, again consistent with the wife’s evidence, Dr C notes at [16] that the mother characterised the father as controlling and domineering, but did not express any concerns about her safety in interacting with him. When he pressed her about her allegations of the father “gaslighting” her (which I consider to be a colloquial, non-scientific term), he reports that she talked “mostly about how she felt unheard, rather than a deliberate campaign of psychological manipulation” on the part of the father.
In relation to the mother’s concerns about the children in the care of the father, Dr C reports at [17]:
She began by stating, “there seems to be a massive lack of insight into how, developmentally, pulling the kids away from me seven days a week is going to play out for them”. She believed that moving to a weekly arrangement would cause the children confusion, anxiety, and distress, with longer term implications for their psychological wellbeing. Another issue she referred to was, “I am slightly concerned, even in terms of activities and things. Not taking them to [sport], not coming to school, not going to [other activities]”. She referred to several examples where she felt that [Mr Scrivens] would refuse to take the children to activities (such as [X’s] [sport lessons], where he had apparently encountered difficulties with another parent), or simply forgetting to take the children to [sport]. Finally, she spoke about [Mr Scrivens] behaving in an obstinate and inflexible manner in relation to the children’s changeover, and his insistence that the children are not dropped off or collected from his new residence. She added, “the other thing is just the changeover and his inability to control himself and not to attack me in front of the kids”.
In relation to the father, Dr C reports at [20] that, inter alia, he presented as “considered, assured, and child focused” and that he “was not noted to be gratuitously critical” of the mother. That is consistent with my assessment of him, having listened to and observed him in the witness box. Regarding the co-parenting relationship with the mother, the father told Dr C at [22] that “it’s not easy” and he described their interaction as being “businesslike” in tone.
When asked by Dr C whether he held any concerns for the children in the care of their mother, the father replied “emotionally I do”. Dr C further reports at [24], inter-alia, that:
He went on to describe that [Ms Medved] struggled herself with self-regulation, and by extension, had exhibited difficulties with calming the children. He characterised her as excitable, anxious, and inclined to get distressed herself when the children were worked up or misbehaving. …
In relation to X, Dr C reports at [26] that she impressed as a talkative, intelligent and gregarious child. She told him that she enjoys spending time with both of her parents. She did not make any mention to Dr C of any reluctance to transition into her father’s care, nor that she experienced a sense of displacement being separated from her mother. Although she told him that she sometimes misses her mother, she also said that she misses her father as well. Dr C reports that “[p]ositively, [X] appeared naïve to any difficulties between her mother and father”; she did not report regular arguments between them in the presence of Y or herself; and she did not describe that either of her parents is criticising all or denigrating the other. In terms of her preferences regarding spending time with each of her parents, she told Dr C: “I don’t know. I would go to Dad’s whenever I wanted, and I would go to Mum’s when I wanted”.
Because of Y’s age at the time of assessment, Dr C did not consult him directly. However, he observed him at various points throughout the day and notes at [27] that he was “a somewhat anxious single boy, quite mindful of strangers in his vicinity”.
Dr C reports that “[o]bservations of the two children with their mother were largely unremarkable” (at [28]) and that the “children’s presentation differed little when observed with their father” (at [29]).
Dr C states at [31]:
Relations between these parents are clearly strained. While there is some degree of basic communication between them, and they are able to changeover directly, the correspondence is cursory and does not refer to any immersive issues related to their two children. In the short period in which they have been separated, there have already emerged innumerable points of disagreement. The process of changeover for the children has also not been without issue, with both parents alleging the other to have been agitated or combative at times
He postulates at [32]:
There are likely several factors that have led to the precarious situation between the parties. At base, it is clear that both parents have formed quite entrenched views of the other. The applicant mother perceives [Mr Scrivens] as controlling and domineering. There is a sense of anxiety when she is required to interact with him. She very likely feels invalidated and has been reflexively steadfast in her views and opinions relating to the children as a result. She perceives the respondent father as less emotionally attuned to the children. She has also been critical of [Mr Scrivens] for allegedly failing to continue with the children’s normal routine and activities, as occurred when they remained under the one roof.
However, he opines at [34]:
Despite obvious problems in the situation between these parents, it is commendable that their two children do not seem mindful of the disunity that exists between them. This was evidence [sic] in my consultation with [X], she gave no indication of being enveloped in the tension between her parents. She did not speak of them behaving in an openly hostile manner, although she may have been exposed to agitated exchanges at points, this did not characterise her reflections about her parents. Similarly, as these children transitioned between their mother and father during the current observation, there were no obvious behavioural markers of apprehension and wariness.
Dr C nevertheless cautions, however, that if the situation between the father and the mother were to continue in its current form, it is likely that the children will become increasingly mindful that their parents are not a united front and that, if the level of communication between them remains superficial, the children may be drawn into a role in which they have to communicate themselves about things that occur with the other parent. Further, he opines that the “demonstrably different parenting approaches” that exist within the maternal and paternal environment will also become apparent if the parents cannot develop a more unified strategy.
Notwithstanding his cautions in the preceding paragraph, Dr C opines at [35]:
In all, there is no compelling clinical argument for one of these parents to assume sole responsibility for decisions affecting [X] and [Y]. Both parents have been involved to a significant degree with the children’s care and upbringing prior to separation. They are both intelligent and considered care providers, who can contribute meaningfully to decisions affecting their children. There is not the degree of enmity and animus between them that would render joint decision-making impossible. …
However, he suggests that there is considerable room for improvement, particularly in the case of the father, who has resorted actively to avoiding interactions with the mother and he recommends, inter alia, that they obtain professional input about how they could better communicate and coordinate around their children.
Having consulted with the parents, interviewed X and observed Y and her with the mother and father, Dr C reports at [36] that:
…there is no evidence of any fundamental problems in the relationship between [X] and [Y] with their two primary care figures. These children demonstrate a strong secure attachment to both parents. I suspect their experience differs slightly when they are with their mother and their father, owing to differing parenting styles, however there is no reason to conclude that the strength of the relationship that these children have with their mother and father is compromised. It may be the case that they are more familiar with the routine and way of doing things in the care of their mother, as it does appear that she has probably been involved in the day-to-day lives over the years. The parents’ differing work schedules alone would suggest that [Ms Medved] may have played a slightly greater role in their daily activities. Notwithstanding, this does not presuppose that [Mr Scrivens] has not played an active role in the lives of these children to the maximum extent possible. He impresses as an invested and solicitous parent, who is highly knowledgeable of his children’s behaviour, temperament, interests, and day to day routine. In all, these children demonstrate love and affection for both of their parents, and in turn, need an opportunity to spend significant and substantial time with each of them forthwith.
(Emphasis added)
Notwithstanding that emphatic recommendation in March 2021, when the trial before me concluded in September 2022, the mother’s position remained that the father’s time with the children should remain as ordered in November 2020 and as was the case at the time of Dr C’s family report (namely, a total of four nights per fortnight) and only increase to five nights per fortnight by the commencement of third term in 2023 and no more thereafter.
In relation to any risks in this case, Dr C reports that there is only one issue in this regard that warrants consideration, namely the mother’s claims that she was exposed to coercive and controlling conduct, including “gaslighting”, by the father. Whilst, as he correctly acknowledges, that is a disputed matter of fact, for determination by the Court, he opines at [39] that:
From a clinical perspective, however, claims of coercive control made by [Ms Medved] impresses tenuous. The examples she used to justify allegations of controlling behaviour, and psychological manipulation, were modest at best. There [sic] are also entirely explicable in a benign way … The use of the term “gaslighting” is inappropriate (and inflammatory) even if her own account of interactions with [Mr Scrivens] were to be accepted. I do believe it is likely that [Ms Medved] increasingly struggled with anxiety in the later stages of the relationship, which was amplified when [Mr Scrivens] progressively made decisions without mollifying her concerns and consternation. Again, however, this is not tantamount to some form of non-physical domestic abuse. In absolute terms, I would not consider [Ms Medved], nor the children, being at any significant ongoing risk of coercive controlling conduct by the respondent father. In absolute terms, there is no unacceptable risk to the mother or children in this matter.
(Emphasis added)
In relation to the psychological concerns raised by each of the parties against the other, Dr C concludes at [42] that, having reviewed those issues, he had “not formed the opinion that any of the issues raised by either [Ms Medved] or [Mr Scrivens] should be foundational in the court’s determination about the children’s living arrangements”. He notes that their concerns largely arose from issues at or about the time of separation, which was highly stressful, when the situation was clearly strained. He sees fit to:
…reiterate to the court that [X] and [Y] have never come to harm while in the care of either parent, and questions of mental health should not determine the court’s decision regarding the children’s living arrangements when there is a demonstrably high level of care offered in both environments.
(Emphasis added)
In relation to the final living arrangements for the children, Dr C opines at [43] that “[c]entral to this question are issues such as the children’s relationship with each parent, there care history, the co-parenting situation, and their age and developmental capacity to live substantively across two different environments”.
In this regard, Dr C reports at [44] - [45]:
44.There are different views about how well the children have acclimated to the current care arrangements, available clinical data suggests that they have adjusted as well as can be expected. There are limited behavioural markers to suggest that these children are fundamentally not coping with spending time away from their mother. Assuredly, they miss her, and they may present with some low-level distress in the lead up to parting from her. This is entirely normal. I would add that they also miss their father when they are separated from him. This is a natural artefact of two parents living in separate households. I do not believe it will eventually be in their best interest to see less of their father than they currently do. By winding back the current arrangements it will, in my own experience, exacerbate the process of the children spending significant and substantial time living across two homes. It will also set up a dynamic in which their mother is firmly placed as the children’s predominant care figure, and their father is a distant second in terms of their day-to-day life.
45.On the other hand, developmentally, [Y] is at the younger end of the continuum where a week-about type arrangement is likely to serve him well. He is not yet of an age where he can hold a mental calendar. He is not yet at school where there is a weekly routine that is predictable for him. There is also the issue that he continues to co-sleep with his mother, which as discussed earlier, should be addressed as soon as possible, and exacerbates the sense of change/adjustment for him. In absolute terms, I do not believe it would be in [Y’s] best interests to immediately transition to a week-about living arrangement. This course of action may well engender a sense of dislocation, displacement, and yearning for each of his parents during the extended block away from them. It would also be undesirable for the two children to have differing living arrangements, given that [X] is developmentally better able to accommodate a more shared living arrangement.
(Emphasis added)
In relation to the latter paragraph, I note that opinion was proffered more than 21 months ago. Y will now commence school in about six weeks’ time when, as Dr C reports, there will be a weekly routine that is predictable for him. Insofar as he opined it would not be in Y’s best interests to immediately transition to a week about arrangement, that must be read in the context of when it was written. He made it abundantly clear in cross-examination that is no longer his view at the current time.
Taking those matters, as they stood in March 2021, into account, Dr C suggested at [46]:
Perhaps the best way to proceed at this point would be to retain the current arrangement for the remainder of 2021, before extending the children’s time at the beginning of next year. This will allow the children to continue to adjust to living between two households, by that point, [Y] will be nearly 5 years of age, and developmentally more able to accommodate increased time with his father. As of the beginning of 2022, it would be my recommendation that the children live with their father three nights one week (e.g., Friday to Monday), and two nights the next (e.g., Wednesday/Thursday). At the point that [Y] commences in prep, it would be appropriate to consider an equal shared care arrangement, and even a week about configuration. These children have two loving and involved parents, and the aspirational goal should be that they live with their mother and father evenly. The clinical contraindication revolves around their age and developmental stage, particularly for [Y], who is still a young child and not able to fully verbally communicate his own emotional needs. The above schedule balances the children’s developmental requirements, with an iterative increase in the time they spend across each household, in a graduated manner proportionate with their age.
In conclusion, Dr C submitted several outcomes/recommendations at [47], including that there is no compelling argument for either of the parents to assume sole parental responsibility for the children; that the parents would benefit from professional input about how they could better communicate and coordinate around their children; that the children are not at any unacceptable risk in the care of either parent; that reversing the current 10/4 living arrangement (as the mother then sought) was “likely to exacerbate the process of these children spending significant and substantial time between each of their parents”; and that it was likely to serve the children well (as at the time of the family report) to remain living in the then-current arrangement for the remainder of 2021, before increasing the number of nights they spend with the father, “with an aspirational goal of equal shared care by the time these children are both enrolled primary school”.
In cross-examination, Dr C confirmed that when he undertook the assessment for his family report, in February 2021, the level of dysfunction and enmity between the parents was not at the point where he thought that they were fundamentally unable to make decisions in the best interests of their children; rather, their parenting styles were divergent. They had disagreed on several issues and he thought there was significant room for improvement which, he said, clearly had not transpired in the intervening period.
When asked whether, based on what he had read in the parties’ subsequent trial affidavits and the mother’s proof of evidence, he had changed his opinion that there was no unacceptable risk to the mother or the children of coercive controlling conduct by the father, Dr C responded:
… I hadn’t formed the view that there was a coercive control dynamic within the relationship. Assuredly there were many points of disagreement. I’m not convinced that the situation had escalated now to a point that would be rightly characterised as a family violence situation.
Further, he said that if the mother’s complaints about the father’s conduct since the family report was prepared were “essentially … more of the same”, which I find to be the case, his conclusion that there is no unacceptable risk to the mother or the children of coercive controlling conduct by the father would remain unchanged.
When asked about the mother’s perception of coercive control by the father, Dr C helpfully explained as follows:
My experience is that there are a significant quantum of people who come and see me who reflect very differently on their marital relationship once the marital relationship has come to an end. And interactions and practices and apportionment of household tasks can be retrofit to align with a certain definition of behaviour and interaction. And I’ve had - I’ve had parents say to me things like, for example, I was the victim of family violence because I was financially abused. But when you start to pull that thread a little bit and unpack that, and forensically deconstruct the interplay, it might be as simple as, well, one parent administered the finances when it comes to the mortgage repayments. And so, yes, the question from counsel is correct that some people are not aware of a process where they are very subtly and insidiously controlled and contorted and manipulated, and - but I also see this phenomena all the time where people retrospectively look back at a failed marriage and draw different conclusion.
In the course of cross-examination by counsel for the mother, I asked Dr C whether a discussion over a minor issue for two to three hours, in the course of which the mother says the father berated her, was an example of coercion and control. He disagreed, saying:
… I think the assertion … that a conversation that extends for a couple of hours between a couple … in the context of a failing marriage in and of itself does not qualify for a definition of domestic abuse.
Further, Dr C said (and I agree) that to level allegations of domestic abuse, family violence or coercive control are “strong terms in the society in which we live”. When I asked him to explain the term “gaslighting”, he said:
It is a deliberate and pernicious campaign of attempting to confuse, undermine, and basically make someone feel like they’re going mad. It comes from - the term comes from a movie where the example in the movie was that the father would go down and turn up the gas to make it hotter and hotter in the house and wouldn’t tell the wife, and the wife thought she was losing contact with reality because he was manipulating the environment and it is a - it is a deliberate, knowing, purposeful campaign to try and shake someone’s sense of confidence and contact with reality so that they are more malleable and more easily manipulated. Broadly, that’s the definition.
Dr C stressed that the “important data point” for the Court to consider when determining whether such conduct has occurred is “purposefulness”, namely:
… the court would need to presuppose that there was a purpose - a purposefulness and an intention to deliberately erode the security, confidence, contact with reality that the mother would otherwise have for his own gain. And so that’s - that’s really the threshold test for the court, in my view. Certainly, I think that we don’t want to rely on individual examples. We want to look at the totality of interactions. And there is accumulative component to that. But I think the court would be well-placed to consider whether - even if the behaviours have occurred in the way there described, whether there was a purposeful malfeasance to them.
In relation to the orders made in November 2020, for the father to spend a total of four nights per fortnight with the children, and his recommended increase thereto, Dr C said:
[Ms Medved] wanted to reverse that. She wanted to scale back. And I said that that would make the process of these two small children living between two households more compromised if we went backwards at this point. I didn’t believe that they were fundamentally unable to cope with that time away from her at that point, and I suggested that they should be spending a bit more time with their dad. A 9-5 split week configuration, a couple nights one week, three nights the next, and that - at that point, I suggested it would be an aspiration for these children. Once they’re both primary school, their living arrangements can be scaffolded around the normal school routine and where they know that they’re going to be at school between 8.35 and 3.15, give or take. Their ability to hold a mental calendar is far more intact. I suggested that these parents should have that conversation about moving to equal shared care once both the kids have started school.
Further in this regard, Dr C said:
…these children have been living in a 10-4 arrangement for a protracted period. They will have acclimated to that. My recommendation 18 months ago was to consider probably fulltime in the care of their father, because it can unfold that children acclimate to a certain living arrangement, and therefore it becomes increasingly difficult to move to something different. So I was of the view that we - lets continue to let them to adjust to the spending time between two homes, and then start to you know, very gently draw that out for them a little bit, particularly allowing little [Y] a bit more developmental time as well. So you know, all of those practical issues, I certainly see in my work but I - they’re all reconcilable, in my view. Good organisation, decent communication. Those are not things that should define whether a child has one house and visits another, or whether they live broadly with half the time with their mum, and half the time with their dad.
In relation to the inability, asserted by the mother, of the parents to communicate and work together in the best interests of their children, Dr C sensibly conceded that:
… given the ages of these kids, there is some requirement for these parents to communicate fairly effectively around sleep-wake cycle, diet, behaviour, medical issues, educational requirements, all of those things. Kids can’t communicate that themselves as they transition between the two homes. So there is some basic requirement for these two people to be able to talk to each other, even if it’s via Our Family Wizard or an email or whatever format they use.
Whilst Dr C agreed with counsel for the mother that it is “really concerning that there are now so many instances where these parents have diverged in their thinking about what should happen” for the children, he continued: “I think that represents some of the content of my report … they’ve got very different approaches … they have different assessments and appraisals of their children, and they have a different parenting mindset. And that’s always going to create points of tension when it comes to making decisions … There are many, many, many decisions that are going to be required for these two kids, about travel and sports and activities and schools and tests”. However, notwithstanding the efforts of counsel for the mother, Dr C did not resile from his recommendation of equal shared care of the children between the parents. I accept that there have been, and there may well continue to be, difficulties in the parents’ communications but that will be so whether the children live with the father five nights per fortnight (as the mother ultimately proposes) or seven nights per fortnight (as the father seeks and Dr C recommends). Dr C referred to some means by which those difficulties in communication could be alleviated, namely, “even if it’s via Our Family Wizard or an email or whatever format they use”.
The mother is critical of the father for not taking the children to certain extra-curricular activities, including play dates. Dr C opined that may be “entirely explicable in a benign way. He may well have taken the view that because his time with the children is configured in a certain way that he may view it as diluting his time and quality of time with his kids if there’s other kids there and they’re off not spending time with him”.
In relation to the father’s failure to notify the mother that he had called for an ambulance for Y, when he was suffering from croup whilst in his care in mid-2022, Dr C said:
I think at a very basic level, if an ambulance is called to a house, common courtesy would dictate that you inform the other parent. So at a very basic level, if that unfolded in the way in which it has been described, that’s far from optimal. And - but, you know, again, I guess where I would take the court’s reasoning is around is this symptomatic of an entrenched, repeated pattern of behaviour where decisions are made for the children that are actually contrary to their best interests or is it a self-limiting, isolated example which is not part of a broader tapestry of compromised and flawed decision-making.
Having considered all the evidence in this case, I am satisfied that the father’s failure to notify the mother, whilst not reflecting well on him, is not symptomatic of the behaviour to which Dr C referred or generally contrary to Y’s (and X’s) best interests or part of a broader tapestry of compromised and flawed decision-making. Importantly, and consistent with my observations during the hearing and in these reasons for judgment, Dr C said in cross‑examination by counsel for the father:
There are clearly problems. There is obviously a paucitive [sic] communication and a degree of distrust, and all of this has occurred against the backdrop of expensive, protracted, stressful litigation. … [B]ut I would posit that if the children are ready spending four nights a fortnight with their father and these issues exist, there’s [sic] going to continue to exist whether it’s four nights, five nights, six nights or seven nights. …
Further, in relation to the difference between 9/5, 8/6 and 7/7 nights, Dr C said that his “frame of reference was around the ages and developmental stages of the children and how long they can accommodate being away from either of their parents over what period of time before it starts to become destabilising and displacing for them. … [I]n ordinary circumstances, a child who’s living six nights with one parent, eight nights with the other, the net difference for that child as opposed to living equal exactly shared care is minimal”. He continued by confirming that “realistically there wouldn’t be any difference whatsoever in the scheme of things between 8/6 and 7/7” and that “[t]his is one of those instances where a day or two each fortnight is probably not going to be significant in terms of the experience … of the child”.
In relation to the arrangement that is, and since November 2020 has been, in place, Dr C described it as “a very conservative type of arrangement, albeit that he acknowledged that at the time it commenced Y was a very little boy. Referring to the time at which he prepared his family report, Dr C said:
… at that time I thought that - given there were some concerns from the applicant mother about the children’s adjustment to that situation, it was my reasoning that, well, if they have slightly more time to sit with that arrangement and get used to it and acclimate to the post-separation environment, let that remain in place and it stand for a period of time, and then introduce another night with the longer-term view that eventually everyone is pulling in the direction for a shared care type arrangement.
When it was put to Dr C by counsel for the father that “it’s only a 10/4 when [[Y]] commences school, so the mother hasn’t agreed to a 9/5 arrangement being put in place immediately”, he responded: “that’s not commensurate with my view about what would work well for these children”. When it was further put to him that, on the mother’s case, a 9/5 arrangement could only commence in term three of 2023, he responded: “I can only repeat that I think that that’s probably an excessively conservative approach”.
When asked by counsel for the father whether the parties’ different parenting styles detracted from the concept of an order for equal shared care on an alternating weekly basis, Dr C said that they did not. Further, when asked what I should consider when considering the 9/5, 8/6 or 7/7 arrangement, he responded:
Well, I … was of the view that this was a matter that was a strong candidate for an equal shared care parenting arrangement at a point when the children were developmentally able to accommodate that. And as I’ve stated previously, my own experience is that when children are settled into primary school, they’ve got their normal routine and there’s often some activities, that’s generally a good point to start to really consider how an equal shared care living arrangement would be. And I acknowledge the difficulty in communicating, and I acknowledge that there have been several points of disagreement and some commentary around how certain issues were managed and handled but … I’m not necessarily persuaded that those issues exist or are frequent enough that it would fundamentally compromise that aspirational goal for the children to live half the time with their mum and half the time with their dad.
In relation to whether a week-about arrangement might be introduced at the commencement of the 2023 academic year, when Y commences school, Dr C said that, whilst he did not “see any bar” on doing so, nevertheless:
… my view is that a change in living arrangements once the children start school probably should happen in term 2. Term one is a bit overwhelming, there’s lots going on, so it’s better not to overwhelm children with … multiple changes to their life circumstances because they’re often tired term 1 [sic], they’re getting sick all the time, there’s lots happening for them are ready, so … my general advice to parents is that they defer that until somewhere into term 2.
Lastly, when asked what the impact on the children would be of such an arrangement, Dr C said:
It’s difficult for me to offer an opinion because …[t]hey were [sic] 18 months ago and one of the children was three. 18 months in the course of that child’s life is actually a big developmental step. The children when I saw them, they seemed fine with spending time with both of their parents. At that point they weren’t aware of the difficulties between their mum and dad. All things being equal, and I would obviously have to caution [sic], but I would be of the view that that sort of arrangement would probably work extremely well for them because they’ve got … two competent, loving, invested parents, and they get different benefits from their mum and from their dad, and I think that all things being equal, that should remain a goal for these children.
(Emphasis added)
In cross-examination, the mother confirmed that, notwithstanding the passage of time since Dr C’s report and the children being some 18 months older, she still disagreed with his recommendations, explaining that in her opinion, he “missed some of the nuances” of the case. I disagree. From the evidence of the parties that I read and heard, as well as from my observations of them in the course of cross-examination, I am satisfied that the nuances of the case did not elude Dr C and that his evidence, both in his family report and in cross-examination, was itself nuanced. The mother, in her professional life, may be a health professional, and an apparently successful one at that. However, in this case, she is a lay litigant and not an expert witness, let alone an independent witness. Dr C said, in this regard:
As a general rule, I would suggest that someone who is [tertiary qualified] should have a greater than lay person’s awareness and understanding of these sorts of issues. I think equally it’s true that when you’re amidst something your ability to objectively assess it can be compromised because you are enveloped in the situation yourself.
RELEVANT LEGAL PRINCIPLES
Taking into account the evidence, as I have accepted it or found it to be, I turn to consider it within the legislative framework for determining parenting orders set out in Part VII of the Family Law Act 1975 (Cth) ( “Act “).
Objects of Part VII and principles underlying it
Section 60B(1) sets out objects of Part VII, which are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying these objects, which are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Children’s best interests - paramount consideration
Section 60CA provides that, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. Section 60CC, the provisions of which I address below, sets out the matters the Court must considering in determining what is in the best interests of the child.
Presumption of equal shared parental responsibility
Section 61DA(1) requires the Court, when making a parenting order in relation to a child, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, pursuant to s 61DA(2), the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in (a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or (b) family violence.
In this case, notwithstanding the mother’s allegations of family violence by the father, she concedes that an order should be made for them to have equal shared parental responsibility for the children. Accordingly, I find that the exception set out in s 61DA(2) is not engaged. Given the mother’s concession, as in Scott & Scott, the resolution of contested allegations of family violence, in the circumstances, would not affect the nature of the order to be made for parental responsibility. Further, in relation to those allegations, I am not satisfied, to the requisite standard, that they have been made out by the mother. I accept Dr D’s unchallenged diagnosis of the mother as having an unspecified stressor-related disorder such that, by reason of her anxiety, she may have experienced the father as controlling and intervening. Whilst I accept that may have been her subjective experience, I do not accept that the father’s conduct was objectively so, such as to amount to family violence. That term is defined in s 4AB (1) of the Act as meaning “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful”. Examples of behaviour that may constitute family violence are set out in s 4AB(2), but are not limited thereto. I accept Dr C’s evidence that, whilst the mother characterised the father as controlling and domineering, she did not express any concerns about her safety in interacting with him, and that when he pressed about her allegations of the father “gaslighting” her, she talked mostly about how she felt unheard, rather than a deliberate campaign of psychological manipulation on the part of the father. Taking into account the expert evidence of Dr C, as well as the evidence of both of the parents, I agree that the mother’s claims of coercive control impress as tenuous. I agree that not only were they modest, but I also agree with and accept his opinion that the examples she used to justify her allegations are entirely explicable in a benign way and that the use of the term “gaslighting” was inappropriate and inflammatory (especially in circumstances where the father is a practising psychologist), even if her own account of interactions with the father were to be accepted. I repeat, that is not to minimise her subjective perception, however, that is not the test. In the circumstances of this case, I unreservedly accept Dr C’s opinion, which accords with mine, that neither the children nor the mother are at any significant ongoing risk of coercive or controlling conduct by the father or, put another way, that there is any unacceptable risk to them of such conduct.
Consideration of children spending equal time with each parent
In circumstances where an order will be made for the parents (as they both seek) to have equal shared parental responsibility, s 65DAA requires me to:
(a)consider whether the children spending equal time with each of the parents would be in the best interests of the children;
(b)consider whether the children spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide for the children to spend equal time with each of the parents.
If I were not to make an order for the children to spend equal time with each of the parents, s 65DAA(2) would require me to consider whether the children spending substantial and significant time with each of the parents would be in the best interests of the children and reasonably practicable and, if so, to consider making an order to provide for the children to spend such time with each of them.
However, for the reasons which follow, I am satisfied that the children spending equal time with each of the parents would be in their best interests and reasonably practicable, and I shall make such an order, as the father seeks and Dr C recommends.
Turning first to the latter of those issues, namely, whether the children spending time with each of the parents is reasonably practicable, s 65DAA(5) requires me to have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
I note, for the purposes of s 65DAA(5)(a), that the mother lives in Suburb B, the father lives in Suburb B and the children attend H School. Therefore, the parents’ homes and the children’s school are all in close proximity to one another and there is no issue in this regard.
In relation to the matters in paragraphs (b) - (d) of s 65DAA(5), I note as follows. Dr C’s evidence, both in his report and in cross-examination, was unshaken by counsel for the mother, who opposes an order for the children to spend equal time with each of the parents. That evidence, which I accept, is that notwithstanding relations between the parents are clearly strained and that, beyond some degree of basic communication between them, there is very little in terms of co-parenting, the children do not seem mindful of the disunity that exists between them, they have two loving and involved parents and a high level of care in both parental environments, and the parents’ different parenting styles do not detract from an order for the children to spend equal time equal with each of them on an alternating weekly basis. He confirmed this is so, notwithstanding it being “really concerning” that, since the time of his family report, in March 2021, there have been so many instances where the parents have diverged in their thinking about what should happen for the children. I agree that the difficulties in the parents’ communications will remain, whether the children live with the father for five or seven nights per fortnight. Whilst the father may not have taken the children to certain extracurricular activities, including play dates, I agree with Dr C that this may be, and I find it is, explicable in a benign way, namely, because he has been spending limited time with them since November 2021 and all the more so in circumstances where Dr C recommended and he sought, but the wife would not agree, that the children’s time with him be increased from four to five nights per fortnight at the commencement of 2022.
Further, whilst the parents’ current and future capacity to implement an arrangement for the children spending equal time with each of them and to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind is an issue, it must be recalled that they each seek (and I shall make) an order for them to have equal shared parental responsibility for the children. In the circumstances of this case, it is difficult to reconcile the mother’s approbation for the purposes of s 61DA(1)-(2) with her reprobation for the purposes of s 65DAA(5)(b)-(c).
Moreover, for the purposes of s 65DAA(5)(d), I find, assisted by the evidence of Dr C, that an arrangement whereby the children spend equal time with each of their parents will not have any adverse impact on the children. On the contrary, for the reasons which follow, I am comfortably satisfied that it is in their best interests to do so.
In Wordsworth & Wordsworth [2021] FedCFamC1A 28 at [40], the Full Court said:
Once the primary judge affirmatively answered the two questions posed by s 65DAA(1)(a) and s 65DAA(1)(b), as was open, then orders for the children to live with the parties for equal time was an entirely orthodox outcome pursuant to s 65DAA(1)(c) of the Act.
Further, as the High Court made plain in MRR v GR (2010) 240 CLR 461 at [13]-[14], those conditions are discrete and conjunctive.
Primary considerations
Turning, therefore, to my determination of what is in the children’s best interests, s 60CC(2) of the Act sets out the primary considerations I must consider, being:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The former requirement will often be subject to the latter (cf. Mallory & Mallory [2019] FamCAFC 221; M v M (1998) 166 CLR 69). From my assessment of the evidence of each of the parents and on the evidence of Dr C, which was again unshaken in this respect and which I accept, I find that the children are not at any risk of physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In this regard, I recall Dr C’s evidence that the children have two competent, loving, invested and involved parents, from whom they derive different benefits, and that there is no such unacceptable risk to them.
Turning to the former of those two primary considerations, in Mazorski v Albright [2007] FamCA 520 at [26], Brown J held that “meaningful”, when used in the context of “meaningful relationship”, is synonymous “significant”, “important”, “of consequence” and “valuable to the child” and is a qualitative adjective, and not a strictly quantitative one.
In Goode v Goode [2006] FamCA 1346 at [44], the Full Court said:
The importance of s 61DA is that if the Court applies the presumption of equal shared parental responsibility when making parenting orders, then that presumption is the starting point for a consideration of the practicality of the child spending equal time with each of the parents and, if it is consistent with the best interests of the child and not impracticable, the Court must consider making an order that the child spend equal time with each of the parents. If the Court does not make such an order, it must consider whether making an order that the child spend substantial and significant time with each of the parents would be in the best interests of the child and not reasonably impracticable and, if so, must consider making such an order (see s 65DAA). Section 65DAA(3) explains the meaning of “substantial and significant time “.
The Full Court said at [72]:
In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
Having considered the evidence of each of the parents and that of Dr C, I have no doubt regarding the benefit to the children of having a meaningful relationship with both of their parents. In this regard, I note Dr C’s evidence that the father presented as considered, assured and child focused; that X told him she enjoys spending time with both of her parents; that she did not make any mention to him of any reluctance to transition into her father’s care, nor that she experienced a sense of displacement being separated from her mother; that although she told him that she sometimes misses her mother, she also said that she misses her father as well; that she would (I infer, happily) “go to Dad’s whenever I wanted, and I would go to Mum’s whenever I wanted”; that there is no evidence of any fundamental problems in the relationship between X and Y with their two primary care figures; that the children demonstrated a strong, secure attachment to both parents; that there is a demonstrably high level of care offered in both environments; that, at the point that Y commences school (namely, in 2023), it would be appropriate to consider an equal shared care arrangement and even a week about configuration; that they have two loving and involved parents and the aspirational goal should be that they live with their mother and father evenly; that the difficulties in the parents’ communications are going to exist whether they spend four, five, six or seven nights per fortnight with the father; that the parents’ different parenting styles do not detract from the concept of an order for equal shared care on an alternating weekly basis; and that such an arrangement “would probably work extremely well for them” because they have two competent, loving and invested parents, from whom they derive different benefits, such that “all things being equal, that should remain a goal for these children”.
Additional considerations
Having so found, I turn therefore to the additional considerations set out in s 60CC(3).
As to sub-paragraph (a), namely, any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views, the children are presently aged seven and five (nearly six) years respectively. Whilst there is no suggestion that their maturity or level of understanding is inappropriate for their ages, nevertheless, given their relatively young ages, limited weight should be given to their views. However, I take into account generally the evidence of Dr C that, at the time he saw the children, albeit nearly two years ago (neither party having sought an updated report prior to trial), X told him that she enjoys spending time with both of her parents; she did not make any mention to him of any reluctance to transition into her father’s care, nor that she experienced a sense of displacement being separated from her mother; she told him that she sometimes misses her mother, but also that she misses her father as well; that, in terms of her preferences regarding spending time with each of her parents, she did not know and that she would go to each of her parents whenever she wanted; and that there is no evidence of any fundamental problems in the relationship between the children and their parents, the children demonstrating a strong and secure attachment to both of them.
As to sub-paragraph (b), namely (and in particular), the nature of the relationship of the children with each of their parents, I note, in particular, in this regard, Dr C’s evidence that X told him that she enjoys spending time with both of her parents; that his observations of the two children with their mother were largely unremarkable and that their presentation differed little when observed with their father; that both parents were involved to a significant degree with the children’s care and upbringing prior to separation; that is no evidence of any fundamental problems in the relationship between X and Y with their two primary care figures; that the children demonstrate a strong, secure attachment to both parents; that, in March 2021 (when he prepared his family report), the children needed an opportunity to spend significant and substantial time with each of the parents “forthwith “, increasing to five nights per fortnight with the father in 2022 and then to alternate weeks with each of them in 2023; that there is a demonstrably high level of care offered in both parental environments; and that the children have two competent, loving, invested, and involved parents, from each of whom they derive different benefits.
As to sub-paragraph (c), namely, the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making to sessions about major long-term issues in relation to the children and to spend time and communicate with them, I find that both parents, albeit in somewhat difficult circumstances, have discharged themselves well in this regard, as regards themselves. However, I am somewhat concerned by the mother’s inability to fully appreciate the father’s fulsome role to play in the lives of their children, which has thereby deprived the father and the children of the opportunity for him to spend more time with them, certainly since the commencement of 2022. It will be recalled that orders were made, by the court and not by consent, in November 2020, for the children to spend four nights per fortnight with the father. When the mother attended upon Dr C in February 2021, she told him that such arrangement had not served the children well and she sought then to reduce such time. Dr C disagreed, opining that the children had acclimatised / adjusted to those arrangements as well as could be expected; that there were limited behavioural markers to suggest that they fundamentally were not coping with spending time away from their mother; that it would not be in their best interests to see less of their father than they then did; that winding back those arrangements would exacerbate the process of the children spending significant and substantial time living across to homes; that it would set up a dynamic in which their mother was firmly placed as their predominant care figure and their father was a distant second in terms of their day-to-day life; and that, whilst retaining the then-current arrangement for the remainder of 2021 was “[p]erhaps the best way to proceed” at that point, the children’s time should be extended at the beginning of 2022 to five nights per fortnight with the father and, in 2023, to an equal shared care arrangement, in a week-about configuration. Notwithstanding that professional opinion, from which Dr C did not depart in cross-examination, and which I have no reason not to accept, the mother refused to increase the father’s time in 2022 and, by the orders she seeks, wishes to retain the children continuing to spend only four nights per fortnight with the father until the commencement of term three in about mid-2023, whereupon she proposes that it increase only to five nights per fortnight, without any increase thereafter. A further, and possibly even better, example of the mother’s inability to fully appreciate the father’s fulsome role to play in the lives of their children, is evidenced by her (quite frankly, remarkable) proposal that the children should only commence to spend one half of the school summer holidays in a block with the father when Y commences secondary school, in the 2030/2031 school summer holidays.
As to sub-paragraph (ca), namely, the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child, there is no discernible issue in this regard.
As to sub-paragraph (d), namely, the likely effect of any changes in the children’s circumstances, including particularly the likely effect on them of any separation from either of their parents, I am comfortably satisfied, on the evidence, that a relatively swift progression from four to seven nights with the father will not have any deleterious effect on the children. Notwithstanding the difficulties in the parents’ communications, I agree with Dr C’s opinion that if the children are already spending four nights per fortnight with the father with such difficulties, they will continue to exist if they spend five, six or seven nights with him. It was asserted by the mother and submitted on her behalf that any increase in time beyond five nights per fortnight is contra-indicated by these difficulties between the father and her. However, it was not cogently explained, to my satisfaction, why this would be so. To the contrary of those assertions and submissions, I find that such an increase is in the children’s best interests given their relationship with him and his with them. However, taking into account Dr C’s evidence, as well as the fact that, due to the mother’s refusal, the children’s time with the father was not increased from four to five nights per fortnight at the commencement of 2022, I shall increase their time with him to five nights per fortnight at the commencement of term one in 2023, to six nights per fortnight at the commencement of term two in 2023 and thereafter to equal shared care, on an alternating weekly basis, at the commencement of term three in 2023.
As to sub-paragraph (e), namely, any practical difficulty and expense of the children spending time with and communicating with either parent and whether any such difficulty or expense will substantially affect the children’s rights to maintain personal relations and direct contact with both parents on a regular basis, there is no such difficulty or expense in this case.
As to sub-paragraph (f), namely, the capacity of (in particular) each of the parents to provide for the needs of the children, including emotional and intellectual needs, I accept the evidence of Dr C that the parents are both intelligent and considered care providers who can contribute meaningfully to decisions affecting their children and that they are both competent, loving, invested and involved parents, from whom the children derive different but equal benefits. However, I note again, but will not repeat, my modest concerns about the mother, to which I have referred in relation to sub-paragraph (c).
As to sub-paragraph (g), the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of their parents, and any other relevant characteristics of the children, there are no issues in this regard.
As to sub-paragraph (h), it is inapplicable in this case; the children are not Aboriginal or Torres Strait Islander children.
As to sub-paragraph (i), namely, the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents, I again find that both parents, albeit in somewhat difficult circumstances, have comported themselves well in this regard, as regards themselves. Again, I note, but will not repeat, my modest concerns about the mother, to which I have referred in relation to sub-paragraph (c).
As to sub-paragraph (j), namely, any family violence involving the children or a member of their family, I have already found, after considering the evidence of the parents and Dr C, that the claims of coercive control made by the mother impress as tenuous; the examples she used to justify her allegations of controlling behaviour and psychological manipulation are modest, at best; they are entirely explicable in a benign way (ie by reason of Dr D’s psychiatric assessment of the mother as suffering from an unspecified stressor-related disorder, including anxiety, that she may have experienced the father as controlling and intervening) and are not tantamount to some form of non-physical domestic abuse; and that neither the children, nor the mother, are at any unacceptable risk of coercive control in conduct by the father.
As to sub-paragraph (k), no family violence order applies, or has applied, to the children or a member of their family.
As to sub-paragraph (l), namely, 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 children, I am satisfied, on the evidence and for the reasons herein, that it would be preferable to make such an order and that the orders I propose to make, substantially in terms of the orders sought by the father, will most likely achieve that outcome.
As to sub-paragraph (m), there are no other relevant facts or circumstances in this case.
Orders to be made
As will be apparent from my reasons above, I shall order that, in respect of the children’s time with the father, it increase to five nights per fortnight at the commencement of term one in 2023, to six nights per fortnight at the commencement of term two in 2023 and thereafter to equal shared care, on an alternating weekly basis, at the commencement of term three in 2023.
Given my findings, particularly regarding a graduated increase in the children’s time with the father, there is little, if any, reason for them not to commence spending one half of the school term holidays with him from the first term holidays in 2023, as he proposes, rather than in 2024, as the mother proposes.
In relation to the school summer holidays, as referred to above, the mother proposes that the children should only commence to spend one half of such holidays in a block with the father when Y commences secondary school, in the 2030/2031 school summer holidays. The father proposes that in the current 2022/2023 holidays, the children spend alternating blocks of four nights with each of the parents and, commencing in the 2023/2024 holidays, they spend one half of such holidays in a block with each of them. The mother’s proposal is, in my view parsimonious. She proposes that, in the current 2022/2023 holidays, the children spend only three periods of five days with the father; in the 2023/2024 holidays, they spend only three periods of six days with him; and thereafter, until the 2030/2031 holidays, they spend half the holidays with each of the parents but in alternating weekly blocks. There was nothing in the evidence of either of the parents, or that of Dr C, to suggest that, in the 2023/2024 holidays, by which time the children will have been living equally with the parents, on an alternating weekly basis, for six months, it would in any way be inimical to their best interests to spend one half of such holidays in a block with each of the parents on an alternating annual basis.
In relation to the time to be spent by the children with each of the parents at Christmas, on the birthdays of each of the parents and each of the children and on Mothers’ Day and Fathers’ Day, the parents agree that time should be spent by the children with them on such occasions. They differ, however, as to the precise terms of such times. There is much to be said for the adage “keep it simple” and I am satisfied that the orders proposed by the father in this regard, and most other regards, subscribe to that adage which, I find, as a general proposition, to be least likely to lead to the institution of further proceedings in relation to the children. Further, it is not for the Court to patronise and micro-manage parents in every conceivable aspect of the parenting of their children.
Similar observations apply pertaining to the competing orders sought by each of the parents in relation to audio and video communication between the children and the parent with whom they are not living at any particular time. Save to include also video communication, as the mother seeks, I shall make orders to the effect sought by the father.
In relation to changeovers other than at the children’s school, the father proposes it occur at the service station at the corner of J Street and K Street, Suburb B, and the mother proposes it occur at the parties’ respective homes, with the party with whom the children are due to commence living/spending time to collect them from the other party’s home. There is no sufficient or adequate reason, on the evidence, for the father’s proposal and I find the proposal of the mother to be in the children’s best interests.
In relation to overseas travel by the children and their passports for such purposes, the proposals of each of the parties are, in my view, unnecessarily complicated. The 2022/2023 school summer holidays are already underway. By the next such holidays, the children will be spending one half thereof, in a block, with each of the parents, during which time each parent will be able to take the children overseas provided that, as the mother reasonably suggests, in the case of each of them, it only include the period from Christmas Eve to Boxing Day once in every four year period. As for custody of the children’s passports, there is no reason why a Solomonic approach should not be adopted, as the father proposes, and that each parent hold one of the children’s passports.
CONCLUSION
Orders will be made in accordance with these reasons.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 23 December 2022
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