Mercer and Mercer - [2018] FCCA 2575

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERCER & MERCER

[2018] FCCA 2575

Catchwords:
FAMILY LAW – Parenting – dispute over where youngest child should live – poor parenting decisions – facebook and text messages – exposure to conflict – attitude to relationship with other parent – sibling relationship – strength of relationship with each parent – evidence of report writer – position of Independent Children’s Lawyer – children’s best interests.

Legislation:

Family Law Act 1975

Telecommunications (Interception and Access) Act 1979 (Cth)
Evidence Act 1995 (Cth)

Cases cited:
Lackey & Mae [2013] FMCAfam 284
Hall & Hall (1979) FLC 90-713
Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461
Baghti & Baghti and Ors [2015] FamCAFC 71
Penski v Kocher [2013] FamCA 255
Pruchnik & Pruchnik (No.2) [2018] FamCA 226
Chappell & Chappell [2008] FamCAFC 143
Newlands & Newlands [2007] FamCA 168
Doherty & Doherty [2016] FamCAFC 182

Applicant:

MR MERCER

Respondent:

MS MERCER

File Number:

DGC 1359 of 2017

Judgment of:

Judge O'Sullivan

Hearing dates:

9, 10 April & 18, 19, 20 July 2018

Date of Last Submission:

31 July 2018

Delivered at:

Dandenong

Delivered on:

12 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr O'Shannessy

Solicitors for the Applicant:

Berger Kordos Lawyers

Counsel for the Respondent:

Ms Elleray

Solicitors for the Respondent:

Julie Taylor

Counsel for the Independent Children’s Lawyer:

Mr Taghdir

Solicitor for the Independent Children's Lawyer:

Taft Lawyers

ORDERS

THE COURT ORDERS THAT:

The mother shall have sole parental responsibility for the child, [X] born 2009 (“[X]”) in relation to major long term issues about:
(a)education (both current and future);
(b)religious and cultural upbringing;
(c)health;
on the conditions that:
(i)the mother will contact the father in writing and provide her views about any such issue;
(ii)the mother shall consult with the father with regard to any such issue;
(iii)the mother and father will make a genuine effort to come to a joint decision about any such issue;
(iv)if no agreement is reached between the mother and father, then within 14 days the mother shall make the final decision and advise the father in writing (email or text message) of the decision about any such issue.
The father shall have sole parental responsibility for the child, [Y] born 2005 (“[Y]”) in relation to major long term issues about:
(a)education (both current and future);
(b)religious and cultural upbringing;
(c)health;
on the conditions that:
(i)the father will contact the mother in writing and provide her views about any such issue;
(ii)the father shall consult with the mother with regard to any such issue;
(iii)the father and mother will make a genuine effort to come to a joint decision about any such issue;
(iv)if no agreement is reached between the father and mother, then within 14 days the father shall make the final decision and advise the mother in writing (email or text message) of the decision about any such issue.
The mother and the father shall have equal shared parental responsibility for the children [Y] born 2005 (“[Y]”) and [X] born 2009 (“[X]”) (collectively “the children”) in relation to major long term issues about:
(a)the children’s name; and
(b)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the other parent.
[X] live with the mother.
[Y] live with the father.
[X] spend time and communicate with the father, unless otherwise agreed, as follows:-
During school terms
(a)each alternate weekend from 5:00pm on Friday until 5:00pm on Sunday or 5:00pm on Monday, if Monday is a public holiday;
(b)each Thursday from conclusion of school or 3:30 pm if a non-school day until 7:30 pm, on the basis that changeover when not at school, shall occur at the home of the paternal grandparents in Town A, with such time spent to be based in and around Town A;
(c)notwithstanding any period she is living with the mother:
(i)from 5:00pm on Father’s Day Eve until 5:00pm on Father’s Day;
(ii)on [Y]’s, the father’s and her birthday for 3 hours as agreed between the parties in writing and failing agreement, from the conclusion of school or 3:30 pm if a non-school day, on the basis that changeover when not at school, shall occur at the home of the paternal grandparents in Town A;
(iii) on Christmas and Boxing Days:
a)commencing in 2018 and each alternate year thereafter from 12:00pm on 24 December until 12:00pm 25 December;
b)commencing in 2019 and each alternate year thereafter from 12:00pm on 25 December until 12:00pm on 26 December;
(d)commencing from the third gazetted Victorian school term holiday in 2018 and each school term holiday thereafter for half of all said holidays as agreed between the parties in writing, and failing agreement:
(i)the first half in even numbered years from 5:00pm of the last day of school term until 5:00pm on the day calculated to be halfway through the said holiday; and
(ii)the second half in odd numbered years from 5:00pm on the day calculated to be halfway through the said holiday until the 5:00pm on the day before the commencement of the next school term;
Note: the total number of nights during the term holiday period shall be used to calculate one half of the holiday period. The total number of nights shall always include the night of the last day of school before the commencement of the term holiday.
(e)commencing from the gazetted Victorian summer school holiday in 2018 and each summer school holiday thereafter for half of such period as agreed between the parties in writing, and failing agreement:
(i)the first half in even numbered years from 5:00pm on the last day in term 4 until 5:00pm on the day calculated to be halfway through the said holiday;
(ii)the second half in odd numbered years from 5:00pm on the day calculated to be halfway through the said holidays until 5:00pm on the day before the commencement of term 1 of school the next school year;
Note: the total number of nights during the long summer holiday period shall be used to calculate one half of the holiday period. The total number of nights shall always include the night of the last day of school before the commencement of the long summer holidays.
Save and except for the time [X] spends with the Father pursuant to order 6(c) herein, her time with the Father pursuant to these Orders, as may be applicable, be suspended as follows:
(a)from 5:00pm on Mother’s Day Eve until 5:00pm on Mother’s Day;
(b)on the Mother’s and her birthday for 3 hours as agreed between the parties in writing and failing agreement from the conclusion of school or 3:30 pm if a non-school day;
(c)on Christmas and Boxing Days:
(i)commencing in 2018 and each alternate year thereafter from 12:00pm on 25 December until 12:00pm on 26 December;
(ii)commencing in 2019 and each alternate year thereafter from 12:00pm on 24 December until 12:00pm 25 December.
The time [X] spends with the Father pursuant to orders 6(a) and 6(b) herein shall be suspended during the school term and long summer school holiday periods and resume after each of the said holidays as if the holiday period had not intervened.
[Y] spend time and communicate with the mother, unless otherwise agreed, as follows:-
During school terms
(a)each alternate weekend (i.e. when [X] lives with the mother) from 5:00pm on Friday until 5.00pm on Sunday or 5.00pm on Monday if Monday is a public holiday, and for such purpose the Mother and Father will meet at Location B at the commencement and conclusion of time spent;
(b)notwithstanding any period he is living with the father:
(i)from 5:00pm on Mother’s Day Eve until 5:00pm on Mother’s Day;
(ii)on [X]’s, the mother’s and his birthday for 3 hours as agreed between the parties in writing and failing agreement from 3:30pm, and for purposes of changeover the parties meet at the home of the paternal grandparents in Town A at the commencement and conclusion of time spent;
(iii) on Christmas and Boxing Days:
a)commencing in 2018 and each alternate year thereafter from 12:00pm on 25 December until 12:00pm on 26 December;
b)commencing in 2019 and each alternate year thereafter from 12:00pm on 24 December until 12:00pm 25 December;
(c)commencing from the third gazetted Victorian school term holiday in 2018 and each school term holiday thereafter for half of all said holidays as agreed between the parties in writing, and failing agreement:
(i)the second half in even numbered years from 5:00pm on the day calculated to be halfway through the said holiday until 5:00pm on the day before the commencement of the next school term;
(ii)the first half in odd numbered years from the conclusion of the last day of school term until 5:00pm on the day calculated to be halfway through the said holiday;
Note: the total number of nights during the term holiday period shall be used to calculate one half of the holiday period. The total number of nights shall always include the night of the last day of school before the commencement of the term holiday.
(d)commencing from the gazetted Victorian summer school holiday in 2018 and each summer school holiday thereafter for half of such period as agreed between the parties in writing, and failing agreement:
(i)the second half in even numbered years from 5:00pm on the day calculated to be halfway through the said holidays until 5:00pm the day before the commencement of term 1 of school the next school year;
(ii)the first half in odd numbered years from the conclusion of school on the last day in term 4 until 5:00pm on the day calculated to be halfway through the said holiday;
Note: the total number of nights during the long summer holiday period shall be used to calculate one half of the holiday period. The total number of nights shall always include the night of the last day of school before the commencement of the long summer holiday.
Save and except for the time [Y] spends with the Mother pursuant to order 9(b) herein, his time with the Mother pursuant to these Orders, as may be applicable, be suspended as follows:
(a)from 5:00pm on Father’s Day Eve until 5:00pm of Father’s Day;
(b)on the Father’s and his birthday for 3 hours as agreed between the parties in writing and failing agreement from the conclusion of school or 3:30 pm if a non-school day;
(c)on Christmas and Boxing Days:
(i)commencing in 2018 and each alternate year thereafter from 12:00pm on 24 December until 12:00pm 25 December;
(ii)commencing in 2019 and each alternate year thereafter from 12:00pm on 25 December until 12:00pm on 26 December.
The time [Y] spends with the Mother pursuant to orders 9(a) herein shall be suspended during the school term and long summer school holiday periods and resume after each of the said holidays as if the holiday period had not intervened.
Save and except as provided for in orders 6(b) (c) (ii) & 9(b) (ii) herein, for purposes of all other changeovers to facilitate the children spending time with each of the mother and the father pursuant to orders 6, 7, 9 & 10 herein the mother and father shall meet at Location B at the commencement and conclusion of time spent.
The mother and father shall do all acts and things and sign all documents and authorities necessary to ensure that they each:
(a)have information and access to the children’s medical and dental records and any registered medical/health professional(s) upon whom any of the children may attend from time to time;
(b)receive from any school attended by the children, all notices, reports, photographs, invitations (including but not limited to parent teacher interviews, fetes, concerts, open days and special events) and other documentation provided to parents by schools and the expenses, if any, of such items received shall be borne by the receiving parent;
(c)are entitled to attend upon the children’s school upon any invitation issued on behalf of their school or otherwise for the bona fide purpose of enquiry as to the children’s welfare, including educational progress;
(d)be named as an emergency contact at the children’s school/sporting events.
The mother and father shall:
(a)inform each other by either telephone, text message or email of any serious illness or injury suffered or sustained by any of the children while in their care as soon as practicable following the onset of the said illness or occurrence of the said injury; and
(b)provide each other with the particulars of:
(i)any treatment required or received by any of the children; and
(ii)the name and address of any treating medical/health professional involved with any of the children; and
(c)ensure that any prescriptions or prescribed medications are provided for the children and accompany them at changeover as required.
The mother and father be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the children or the other party to or in the presence or hearing of the children or any of them, and from permitting any other person from doing so;
(b)discussing these proceedings with or in the presence or hearing of the child and from permitting any other person from doing so; and
(c)exposing the children to any form of violence, threats or intimidation and from permitting any other person from doing so.
All extant applications are otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1359 of 2017

MR MERCER

Applicant

And

MS MERCER

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern a dispute over parenting orders, as that term is defined in the Family Law Act 1975 (“the Act”) for [X] born 2009 and [Y] born 2005 (“the children”).
By application filed 5 May 2017, Mr Mercer (“the father”) sought parenting and property orders under the Act. In her response filed 30 May 2018, Ms Mercer (“the mother”) sought different parenting and property orders. Prior to the trial both the mother and the father filed an amended response and amended application respectively.
On the first day of trial held on 9 April 2018, the parties settled their property dispute, and final property orders were made by consent. The remaining dispute concerned what parenting orders should be made for the children.
A feature of the case conducted by the parties was the potential import, for determining the children’s best interests, of a congeries of social media and text messages. Putting to one side the forensic purpose for doing so, the exercise was unedifying for all involved.

Background

The father is 36 years of age and lives in Town C, Victoria. The father works as a (occupation omitted). The mother is 35 years of age, lives in Town D, Victoria and said she works as a (occupation omitted).
The parties commenced their relationship in 2002. The mother had a child from a previous relationship, [C] born 2001, who lived with the parties during their relationship (but was not the subject of any application in these proceedings). The parties married 2005 and separated 2016.
In May 2016, the mother vacated the former matrimonial home in Town C with [C] and [X] alleging abusive behaviour by the father towards [C].
By this time, the mother had commenced a new relationship and subsequently moved to Town D, with [X], to live with him. [Y] remained living with his father in Town C.
Following an incident at [Y]’s primary school there was an application for an intervention order on behalf of the father and [Y] against the mother’s partner. As a result there were intervention order proceedings in February 2017 at the (omitted) Court.
The father’s initiating application (which was filed when he was unrepresented) sought inter alia that the mother be restrained from removing [X] from the Town C area; that the parents have equal shared parental responsibility, and there be time spent between [X] and the other parent on certain (variable) terms.
In the response filed by her solicitors, the mother sought orders that she be at liberty to remain in Town D with [X] and for [Y] to spend time and communicate with her.
The father’s application came before the Court for a first return date on 31 May 2017. The father appeared in person and the mother was represented. There was order for a child inclusive conference pursuant to s11F of the Act on 9 June 2017, the appointment of an Independent Children’s Lawyer and the matter was adjourned to 22 June 2017.
On 9 June 2017, the parties and the children attended the child inclusive conference and the memorandum was released to the Court on 14 June 2017.
When the matter returned to Court on 22 June 2017 the father was unrepresented but had the assistance of duty lawyer, the mother was represented and the Independent Children’s Lawyer appeared. There were orders made for the preparation of a Family Report as well as directions for trial on 9 April 2018. There were also interim consent orders made (consistent with the recommendations made as a result of the child inclusive conference) that both children live with the mother, spend time with the father and that [Y] go school in Town D (where by this time [X] had been enrolled by the mother).
In September 2017 solicitors filed a notice of address for service on behalf of the father.
Despite the interim orders being agreed to it was uncontroversial that [Y] was not happy with those living arrangements and there was conflict between him and, inter alia, [C]. [Y] subsequently spent time staying with the paternal grandmother.
On 16 November 2017, the parties and the children attended interviews with, Ms D who had been tasked with the preparation of the family report ordered pursuant to s. 62G(2) of the Act.
In early December 2017, the mother and father agreed that, notwithstanding the existing interim orders, [Y] should live with his father in Town C and return to his previous school.
The family report was released in late December 2017 by which time the father’s solicitors had ceased to act.
In January 2018, the father sought an intervention order against his brother (who is known to the mother). It appears that the mother had invited the father’s brother (from whom he had been estranged for some time), to [X]’s birthday party which was to be held at the father’s home. The party went ahead but the estranged brother didn’t attend.
Also in January 2018 the father’s current solicitors filed a notice of address for service.

The trial

At the trial which began in April 2018, the father was represented by Mr O’Shannessey of Counsel, the mother by Ms Elleray of Counsel and Mr Taghdir appeared as the Independent Children’s Lawyer.
After the final property orders were made by consent, the parties identified the material that they relied on for the purposes of the parenting dispute. The father had filed a case outline which was marked as exhibit A1. Counsel for the father told the Court his client relied on the following material:
·the amended initiating application filed 14 March 2018;
·the father’s affidavits filed 14 & 27 March & 14 July 2018;
·the affidavits of Ms R Mercer (the paternal grandmother) filed 15 March & 19 July 2018;
·the identified annexures to the father’s affidavit filed 5 May 2017; and
·exhibits tendered during the course of the trial (marked A1-A13).

Counsel for the mother advised the Court her client relied on her outline of case marked as exhibit R1 and;
·the amended response filed 9 March 2018;
·the mother’s affidavits filed 29 May 2017, 9 March & 3 July 2018; and
·exhibits tendered during the course of the trial (marked R1-R5).
The Independent Children’s Lawyer told the Court he relied on his case outline marked ICL 1 and:
·the Family Report of Ms D released 19 December 2017 (“the Report”); and
·exhibits tendered during the course of the trial (marked ICL1-5).
Each of the parties referred the Court to the minute of the final parenting orders that they sought in their respective outlines. Neither party, led evidence from their current (or former) partners and this meant some of the claims they made concerning these people could not be made out.
It was the father’s position that [Y] had been unhappy living with the mother and he could provide better quality of parenting to both of the children. The father’s position was, as it would be impossible for the children to be together in the mother’s home, both the children should live with him.
Both the mother and the Independent Children’s Lawyer told the Court they opposed the father’s proposal in so far as it included that [X] live with him and believed that subject to the evidence, there should be final orders reflecting the recommendations in the Report.
The Court heard evidence from the father who was also cross examined. The Court was told the paternal grandmother was not required for cross examination. At the close of the father’s evidence the mother was called to give evidence. It became apparent during the course of the mother giving evidence that [Y] and the father had been seeing the same psychologist, Mr A It also became apparent that [X] had seen a (different) psychologist (Ms B) in the past. The Independent Children’s Lawyer had not been made aware that either child had been seeing a psychologist.
Given this, the parties agreed the trial should be adjourned part-heard, to allow the Independent Children’s Lawyer time to issue subpoenas to Mr A and Ms B.
Unfortunately, between the time the trial was adjourned part heard and its resumption in July 2018 at least one incident occurred which saw [C] in the middle of yet further conflict between the father and the mother. The fact that this incident occurred (rather than attributing blame to one side or the other) illustrates (consistent with the evidence as a whole to which I will turn) the inability of the parties to protect the children from the adverse impact of their ongoing conflict.
When the proceedings returned to Court on 18 July 2018 both the father and the mother were recalled to give evidence and were cross examined. Having inspected the subpoena material (produced as a result of those issued by the Independent Children’s Lawyer) none of the parties sought to lead any further evidence. At the conclusion of the parties’ evidence, the family report writer, was called and was cross examined.
At the close of evidence, the parties were directed to file written submissions in light of the evidence on what final parenting orders should be made. Those directions were formalised following a telephone mention on 20 July 2018 and the parties confirmed to the Court the final orders they sought were as contained their written submissions at a telephone mention on 5 September 2018.

Position of the parties

Initial Position

The final orders sought by the father in his case outline were:
“1. The [father] has sole parental responsibility for the children [Y] born 2005 and [X] born 2009 (“the children”).
2. The children live with the Father.
3. The children spend time with the Mother:
(a) each alternate weekend from the conclusion of school or 3:30 pm if a non-school day on Friday until the commencement of school or 3:30 pm if a non-school day on the following Monday;
(b) each Thursday from the conclusion of school or 3:30 pm if a non-school day until 7:30 pm;
(c) in addition to Order 3(a), from the conclusion of school on the Friday preceding Mother’s day until the commencement of school the following Monday;
(d) for one week in the school term holidays from the conclusion of school on the last day of term until 12:00 pm on the middle Sunday or such school holidays;
(e) on the children’s birthday for no less than 3 hours at times as agreed between the parties.
(f) for half of the long summer school holidays, with such half to be agreed and if there is no agreement at least one month prior to such holidays commencing, in the first half in even numbered years and in the second half in odd numbered years; and
(g) at such other times as agreed between the parties in writing.
4. For purposes of changeover, when not occurring at school then at Location B
5. That the children spend time during the Easter long weekend as follows:
(a) in 2018 and each alternating year:
i) with the Mother from the conclusion of school preceding Easter Friday until 5:00 pm Easter Saturday; and
ii) with the father from 5:00 pm Easter Saturday until the commencement of school or 9:00 am the following Tuesday.
(b) in 2019 and each alternating year:
i) with the father from the conclusion of school preceding Easter Friday until 5:00 pm Easter Saturday; and
ii) with the mother from 5:00 pm Easter Saturday until the commencement of school or 9:00 am the following Tuesday.
6. That the children spend time during Christmas as follows:
(a) in 2018 and each alternating year:
i) with the father from 12:00 pm Christmas Eve until 12:00 pm Christmas Day; and
ii) with the mother from 12:00 pm Christmas Eve until 12:00 pm Christmas Day;
(b) in 2019 and each alternating year:
i) with the mother from 12:00 pm Christmas Eve until 12:00 pm Christmas Day; and
ii) with the father from 12:00 pm Christmas Day until 12:00 pm Boxing Day.
7. That the mother’s time with the children be suspended:
(a) during the Father’s Day weekend, with the children to spend time with the father (if they would otherwise be spending time with the mother in accordance with these Orders) from the conclusion of school on Friday preceding Father’s Day until the commencement of school the following Monday;
(b) on the father’s birthday for no less than 3 hours at times to be agreed between the parties.
8. The mother and the father be restrained from:
(a) consuming or being under the influence of illicit substances (other than those prescribed by a medical practitioner) or from exposing the children to anyone affected by or using illicit substances whilst the children are in their respective care;
(b) denigrating the other in the presence of or hearing of the children or permitting any other person from doing so;
(c) discussing these Court proceedings with the children or showing them any documents related to or filed in these proceedings.
9. The mother continue to attend counselling and treatment for depression.”
The final orders sought by the mother in her case outline were:
“1. That the mother and the father have equal shared parental responsibility for the children [Y] born 2005 and [X] born 2009.
2. That [X] live with the mother.
3. That [Y] live with the father.
4. That [X] spend time and communicate with the father as follows:-
4.1. During school terms each alternate weekend:-
4.1.1 from conclusion of school or 3:30 pm if a non-school day on Friday until 7:30 pm on Sunday or 7:30 pm on Monday if Monday is a public holiday, provided that the father will collect [X] from school at commencement of time spent and the mother will deliver [X] to the father at Location B at conclusion of time spent;
4.1.2 Each Thursday from conclusion of school or 3.30 pm if a non-school day until 7.30pm, on the basis that handover when not at school shall occur at the home of the paternal grandparents in Town A, with such time to be based in and around Town A.
4.2. for one week in the school term holidays from 12 noon on the first Saturday until 12 noon on the following Saturday and for such purpose, alternate weekend time spent and Thursday evening time spent shall be suspended and resume after the holidays as if the holiday period had not intervened;
4.3. from 12 noon on Christmas Eve until 12 noon on Christmas Day for Christmas Day 2018 and likewise for each alternate year thereafter;
4.4. from 12 noon on Christmas Day until 12 noon on Boxing Day for Christmas Day 2019 and likewise for each alternate year thereafter;
4.5. in the event that Father’s Day should occur when the child is scheduled to be in the care of her mother, from 5:00 pm on the eve of Father’s Day until 5:00 pm on Father’s Day;
4.6. for half of each long Christmas vacation provided that the father is on leave from his employment, the father to provide the mother with at least two months’ notice as to whether or not he is able to obtain such leave, and if he cannot, alternate weekend time spent shall continue throughout such long Christmas vacation save that Thursday evening spend time periods will be suspended;
4.7. on the child’s birthday and the father’s birthday and on the birthday of the child [Y] born 2005, from 3:00 pm/conclusion of school until 7:30 pm, provided that the father will collect the child from school, and will deliver the child to the mother at the paternal grandparent’s home in Town A at the conclusion of that time spent period;
4.8. otherwise as mutually agreed.
5. That the father’s spend time periods with the child [X] be suspended at the following times:-
5.1. from 12 noon on Christmas Day until 12 noon on Boxing Day for Christmas Day, 2018 and likewise for each alternate year thereafter;
5.2. from 12 noon on Christmas Eve until 12 noon on Christmas Day for Christmas Day, 2019 and likewise for each alternate year thereafter;
5.3. in the event that Mother’s Day should occur when [X] is scheduled to be in the care of her father, from 5:00 pm on the eve of Mother’s Day;
5.4. on [X]’s birthday and the mother’s birthday from 3:00 pm until 7:30 pm.
6. That the child [Y] spend time and communicate with the mother at the following times:-
6.1. during school terms each alternate weekend from after school on Friday on the basis that the child shall utilise train transport to travel to the mother’s home on Friday evening, until 5:00 pm Sunday and continuing to 5:00 pm Monday should Monday be a public holiday, with the child to be returned to Location B by the mother provided such weekends shall occur on the weekends when [X] is in the mother’s care;
6.2. for half of each period of scheduled school term holidays and each long Christmas vacation to coincide with the periods when [X] is in the mother’s care;
6.3. from 12 noon on Christmas Day until 12 noon on Boxing Day for Christmas Day, 2018 and likewise for each alternate year thereafter;
6.4. from 12 noon on Christmas Eve until 12 noon on Christmas Day for Christmas Day, 2019 and likewise for each alternate year thereafter;
6.5. in the event that Mother’s Day should occur when [Y] is in the care of his father, from 5:00 pm on the eve of Mother’s Day until commencement of school the following Monday;
6.6. on the mother’s birthday, [X]’s birthday and [Y]’s birthday from 3:00 pm until 7:30 pm, provided that handover will occur at Location B.
7. That unless otherwise provided, that where handover does not occur at [X]’s school, it will occur at the home of the husband’s mother at Town A.
8. That each of the parties be at liberty to attend the children’s scheduled school, sporting and cultural activities being activities that parents would ordinarily attend even though they might be in the care of the other parent at the relevant time.
9. That the father be restrained by injunction from:-
9.1. denigrating the mother or her partner or family in the presence of or hearing of the children nor from allowing anyone else to do so;
9.2. from discussing these proceedings in the presence of or hearing of the children nor from allowing anyone else to do so.
10. That each party keep the other informed of any serious medical or dental treatment the children might be obliged to undergo, and will authorise treating practitioners to communicate with the other parent.
11. That each of the parties shall be named as an emergency contact at the children’s school/sporting events, and each of the parties shall be at liberty to receive copies of newsletters, order forms for photographs, and like documents ordinarily provided to parents.
12. That all extant parenting Applications be otherwise dismissed.”
The final orders sought by the Independent Children’s Lawyer in his case outline were:
“1. The mother and the father have equal shared parental responsibility for the children [Y] born 2005 (“[Y]”) and [X] born 2009 (“[X]”) (collectively “the children”).
2. [X] live with the mother.
3. [Y] live with the father.
4. [X] spend time and communicate with the father as follows:-
During school terms
(a) each alternate weekend from conclusion of school or 3:30 pm if a non-school day on Friday until 7:30 pm on Sunday or 7:30 pm on Monday if Monday is a public holiday, and for such purpose the father will collect [X] from her school at commencement of time spent and the mother will deliver [X] to the father at Location B at the conclusion of time spent;
(b)each Thursday from conclusion of school or 3.30pm if a non-school day until 7.30pm on the basis that changeover when not at school shall occur at the home of the paternal grandparents in Town A with such time spent to be based in and around Town A
(c) notwithstanding any period she is living with the mother:
i) from 5:00pm on Father’s Day Eve until 7.30pm on Father’s Day;
ii) on [Y]’s, the father’s and her birthday for 3 hours as agreed between the parties in writing and failing agreement from the conclusion of school or 3:30 pm if a non-school day until 7:30pm on the basis that changeover when not at school, shall occur at the home of the paternal grandparents in Town A.
iii) on Christmas and Boxing Days:
iv) commencing in 2018 and each alternate year thereafter from 12:00pm on 24 December until 12:00pm 25 December.
v) commencing in 2019 and each alternate year thereafter from 12:00pm on 25 December until 12:00pm on 26 December.
(d) commencing from the second gazetted Victorian school term holiday in 2018 (i.e. from 30.06.2018 until 15.07.2018) and each school term holiday thereafter for half of all said holidays as agreed between the parties in writing, and failing agreement:
i) the first half in even numbered years from the conclusion of the last day of school term (i.e. 29.06.2018) until 3.30pm on the day calculated to be halfway through the said holiday; and
ii) the second half in odd numbered years from 3.30pm on the day calculated to be halfway through the said holiday until the 3.30pm on the day before the commencement of the next school term.
Note: the total number of nights during the term holiday period shall be used to calculate one half of the holiday period. The total number of nights shall always include the night of the last day of school before the commencement of the term holiday (i.e. 29.06.2018).
(e) commencing from the gazetted Victorian summer school holiday in 2018 (i.e. from 22.12.2018 until 29.01.2019) and each summer school holiday thereafter for half of such period as agreed between the parties in writing, and failing agreement:
i) the first half in even numbered years from the conclusion of school on the last day in term 4 (i.e. 21.12.2018) until 3.30pm on the day calculated to be halfway through the said holiday;
ii) the second half in odd numbered years from 3:30pm on the day calculated to be halfway through the said holidays until the commencement of term 1 of school the next school year.
Note: the total number of nights during the long summer holiday period shall be used to calculate one half of the holiday period. The total number of nights shall always include the night of the last day of school before the commencement of the long summer holiday (i.e. 21.12.2018).
5. Save and except for the time [X] spends with the Father pursuant to order 4(c) herein, her time with the Father pursuant to these Orders, as may be applicable, be suspended as follows:
(a) from 5:00pm on Mother’s Day Eve until the commencement of school on Monday.
(b) on the Mother’s and her birthday for 3 hours as agreed between the parties in writing and failing agreement from the conclusion of school or 3:30 pm if a non-school day until 7:30pm;
(c) on Christmas and Boxing Days:
i) commencing in 2018 and each alternate year thereafter from 12:00pm on 25 December until 12:00pm on 26 December.
ii) commencing in 2019 and each alternate year thereafter from 12:00pm on 24 December until 12:00pm 25 December.
6. The time [X] spends with the Father pursuant to orders 4(a) & (b) herein shall be suspended during the school term and long summer school holiday periods and resume after each of the said holidays as if the holiday period had not intervened;
7. [Y] spend time and communicate with the mother as follows:-
During school terms
(a) each alternate weekend (i.e. when [X] lives with the mother) from 5:00pm on Friday until 5.00pm on Sunday or 5.00pm on Monday if Monday is a public holiday, and for such purpose the Mother and Father will meet at Location B at the commencement and conclusion of time spent.
(b) notwithstanding any period he is living with the father:
i) from 5:00pm on Mother’s Day Eve until 7.30pm on Mother’s Day
ii) on [X]’s, the mother’s and his birthday for 3 hours as agreed between the parties in writing and failing agreement from 5:00pm if a school day and 3.30pm if a non-school day until 7:30pm and for purposes of changeover the parties meet at Location B at the commencement and conclusion of time spent.
iii) on Christmas and Boxing Days:
iv) commencing in 2018 and each alternate year thereafter from 12:00pm on 25 December until 12:00pm on 26 December.
v) commencing in 2019 and each alternate year thereafter from 12:00pm on 24 December until 12:00pm 25 December.
(c) commencing from the second gazetted Victorian school term holiday in 2018 (i.e. from 30.06.2018 until 15.07.2018) and each school term holiday thereafter for half of all said holidays as agreed between the parties in writing, and failing agreement:
i) the second half in even numbered years from 3.30pm on the day calculated to be halfway through the said holiday until 3.30pm on the day before the commencement of the next school term.
ii) the first half in odd numbered years from the conclusion of the last day of school term (i.e. 05.04.2019) until 3.30pm on the day calculated to be halfway through the said holiday;.
Note: the total number of nights during the term holiday period shall be used to calculate one half of the holiday period. The total number of nights shall always include the night of the last day of school before the commencement of the term holiday (i.e. 05.04.2019).
(d) commencing from the gazetted Victorian summer school holiday in 2018 (i.e. from 22.12.2018 until 29.01.2019) and each summer school holiday thereafter for half of such period as agreed between the parties in writing, and failing agreement:
i) the second half in even numbered years from 3:30pm on the day calculated to be halfway through the said holidays until the commencement of term 1 of school the next school year.
ii) the first half in odd numbered years from the conclusion of school on the last day in term 4 (i.e. 20.12.2019) until 3.30pm on the day calculated to be halfway through the said holiday;
Note: the total number of nights during the long summer holiday period shall be used to calculate one half of the holiday period. The total number of nights shall always include the night of the last day of school before the commencement of the long summer holiday (i.e. 20.12.2019).
8. Save and except for the time [Y] spends with the Mother pursuant to order 7(b) herein, his time with the Mother pursuant to these Orders, as may be applicable, be suspended as follows:
(a) from 5:00pm on Father’s Day Eve until the commencement of school on Monday.
(b) on the Father’s and his birthday for 3 hours as agreed between the parties in writing and failing agreement from the conclusion of school or 3:30 pm if a non-school day until 7:30pm;
(c) on Christmas and Boxing Days:
i) commencing in 2018 and each alternate year thereafter from 12:00pm on 24 December until 12:00pm 25 December.
ii) commencing in 2019 and each alternate year thereafter from 12:00pm on 25 December until 12:00pm on 26 December.
9. The time [Y] spends with the Mother pursuant to orders 7(a) herein shall be suspended during the school term and long summer school holiday periods and resume after each of the said holidays as if the holiday period had not intervened;
10. Save and except as provided for in orders 4(a) &(b) and 7(a) herein, for purposes of all other changeovers to facilitate the children spending time with each of the mother and the father pursuant to orders 4, 5, 7 & 8 herein the mother and father shall meet at Location B at the commencement and conclusion of time spent.
11. The mother and father shall do all acts and things and sign all documents and authorities necessary to ensure that they each:
(a) have information and access to the children’s medical and dental records and any registered medical/health professional(s) upon whom any of the children may attend from time to time;
(b) receive from any school attended by the children, all notices , reports, photographs, invitations (including but not limited to parent teacher interviews, fetes, concerts, open days and special events) and other documentation provided to parents by schools and the expenses, if any, of such items received shall be borne by the receiving parent.
(c) are entitled to attend upon the children’s school upon any invitation issued on behalf of their school or otherwise for the bona fide purpose of enquiry as to the children’s welfare, including educational progress.
(d) be named as an emergency contact at the children’s school/sporting events
12. The mother and father shall:
(a) inform each other by either telephone, text message or email of any serious illness or injury suffered or sustained by any of the children while in their care as soon as practicable following the onset of the said illness or occurrence of the said injury; and
(b) provide each other with the particulars of:
i) any treatment required or received by any of the children; and
ii) the name and address of any treating medical/health professional involved with any of the children; and
(c) ensure that any prescriptions or prescribed medications are provided for the children and accompany them at changeover as required.
13. The Mother and Father be and are hereby restrained by injunction from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the children or the other party to or in the presence or hearing of the children or any of them, and from permitting any other person from doing so;
(b) discussing these proceedings with or in the presence or hearing of the child and from permitting any other person from doing so; and
(c) exposing the children to any form of violence, threats or intimidation and from permitting any other person from doing so
14. Orders to be discussed with the parties concerning support and counselling for the parties and [Y].”

The Report

Ms D (the “report writer”) prepared the family report pursuant to orders dated 22 June 2017. The family report was released to the parties in late December 2017 (“the Report”).
The Report set out the “Background” to the dispute (paragraphs 1-8) before turning to the “Current arrangements for the children” (paragraphs 9-13) and then identified the parties’ “Applications and proposals” as they were at the time of the interviews in late 2017 (paragraphs 14-15). The Report then turned to identify the “Issues in dispute” as follows:
“16. At the commencement of these proceedings, [Y] was living with his father and had not spent time with his mother for an extended period of time. [X] was living in the predominant care of her mother and spending time with her father for 5 nights a fortnight. The issues in dispute before the Court were in relation to [Y]’s spend time arrangements with his mother. Both parents were seeking primary residence of [X]. If not successful in obtaining primary residence of [X], Mr Mercer sought an equal time arrangement for her. His proposals were silent on the spend time proposals between [Y] and his mother.
17. Ms Mercer filed a Notice of Risk alleging that Mr Mercer was abusive to her and [C] during her relationship with him and that he continues to denigrate her to the children. She complained that he failed to facilitate a relationship between [Y] and her and alienated [Y] from her following separation. She complained that Mr Mercer implemented a spend time arrangement between [X] and him which was disruptive and exhausting for [X] and sought to vary the arrangements. She alleged that surrounding Mother’s Day 2017, Mr Mercer withheld [X] from her and made threats that [X] would never see her again, which was traumatic for [X].
18. Mr Mercer denied the allegations made against him in respect to [Y]. He reported that the reason [Y] stopped spending time with his mother was because she was disinterested in spending time with him. He also alleged that Mr P (Ms Mercer’s boyfriend) had been aggressive towards him and [Y] in the past, which resulted in an Intervention Order being obtained against Mr P, to protect him and [Y]. That Order expires in February 2018. He explained that this was another reason for [Y] not visiting his mother due.
19. A Department of Health & Human Services (DHHS) letter dated 17 June 2017 advised that they have chosen not to be involved.
20. Following the Court’s involvement both children lived with Ms Mercer and spent time arrangements with Mr Mercer as provided in the orders.
21.Mr Mercer complained that both [Y]’s and [X]’s school attendance dropped significantly after they changed schools. Ms Mercer acknowledged that there were some school absences initially while the children were getting adjusted to their new school and home. Further, she stated that [X] was initially reluctant to attend school due to worry that her father may take her from school and she may never see her mother again.
22. Following their early December 2017, [Y] returned to live with Mr Mercer and commence Secondary School in Town C next year. Ms Mercer explained that after speaking with [Y], she formed the view that he would be happier to commence Secondary School in Town C next year with his school friends from his former school.
23. Whilst equal shared parental responsibility is agreed, both parties reported difficulties with their communication and co-parenting relationship. They have had disputes over changeover venues.
24. Mr Mercer reported that the current orders provides for him to have holiday time with the children over the Christmas holidays from 12.00 pm Saturday 23 December 2017 to 12.00 pm Saturday 30 December 2017 but there is no provision for time between the children and mother at Christmas. He offered Christmas time to Ms Mercer from the conclusion of school on Friday 22 December 2017 until the morning of Christmas Day but Ms Mercer told him she only wants [X] from 22 December 2017, not [Y]. Ms Mercer said she agreed to pick [Y] from Location B at 11.00 am on Saturday 23 December 2017 and return both children to Mr Mercer at 11.00 am on Christmas morning. She reported that Mr Mercer had not confirmed if pick-up will occur from his mother’s home or Location B.
25. Current orders provide for the parties to enrol themselves and the children for the (omitted parenting program) nominated by the Independent Children’s Lawyer (ICL). Mr Mercer said he has completed a Stand By Me program. Ms Mercer said she was unable to attend the program because the program overlaps with the children’s changeover times on Thursdays. She tried to swap the spend time arrangements for a different day but Mr Mercer refused. She plans to attend the program next year. The parties and children have not engaged with a (omitted parenting program) counsellor and both parents stated that they were not advised to attend counselling.”
After setting out the presentation and interviews with the parties and the children (paragraphs 26-65) the Report contained the following “Conclusions and recommendations”:
“66. At the commencement of these proceedings, [Y] was living with his father and was not spending any time with his mother. [X] was living with her mother and spending significant and substantial time with her father. The parties offered divergent perspectives on why [Y] was not spending time with his mother. It does appear that [Y] is strongly aligned with his father and mirrors some of his father’s views of his mother.
67. A 11F report raised concern about the disruption of the relationship between [Y] and his mother. The Family Consultant assessed that between the two parents, Ms Mercer is more likely to encourage and promote a relationship between the children and other parent. The parties made Consent Orders for both children to live with Ms Mercer and she was permitted to enrol the children at a school in Town D.
68. Since living with his mother, [Y] has consistently stated that he is unhappy about the change of school and residence. On a positive note, [Y]’s relationship with his mother has improved [Y]’s relationship with his mother has improved since he began living with her. Before this family report was completed, Ms Mercer took a decisive step to place [Y] back in the care of his father in Town C after [Y] informed her that he would be happier if he returned to live with his father in Town C and commenced Secondary School in Town C next year. This decision by Ms Mercer demonstrates that she is able to prioritise [Y]’s happiness in her decision making. The writer supports her decision for [Y] to live with his father in Town C conditional upon him spending time with his mother on alternate weekends, half school holidays and special days. It is important that the father fosters a regular and positive relationship between [Y] and his mother.
69. Whilst the splitting of siblings is not ideal, in this matter the writer supports [X] remaining primarily in the care of her mother as she has a more secure relationship with her mother and would be happier living with her mother. The writer supports time between [X] and her father on alternate weekends. The relationship between the siblings can be maintained when they spend time together during weekends with each parent and during school holiday periods.
70. The writer recommends some variations to the current spend time arrangements. The current orders provides for Mr Mercer’s time with the children to conclude on Monday mornings. As Mr Mercer commences work early, he has been placing the children in the care of their paternal grandmother at Town A on Sunday nights. The paternal grandmother or paternal aunt transports them to school on Monday mornings. It is recommended that [X]’s weekend time with her father concludes at 7.30 pm Sunday (or 7.30 pm on Monday if Monday is a Public Holiday) during his weekends with the children to minimise the disruptive experience for the [X]. She would be more settled in the care of her mother on Sunday nights.
71. Disputes have arisen between the parties over the Thursday spend time arrangements between the children and father in relation to collection point at the conclusion of time. The current orders provides for Mr Mercer to spend time with the children from 3.30 pm to 7.30 pm on Thursdays. Mr Mercer reported that he spends time with the children in Location B (more than an hour away during this spend time period) because they can engage in more activities at that location. The writer is concerned that there is a lot of travelling being undertaken by the children undertaking during the 4 hours they spend time with their father on Thursdays. Unless the Thursday spend time occurs at the home of the maternal (sic) grandmother in Town A (15 minutes from Town D), the Thursday arrangements may be disruptive and likely to generate ongoing conflicts between the parents. If Thursday time continues, it is recommended that changeover at the conclusion of time occurs at Town A.
72. Christmas arrangements between the children and mother have not been stipulated in the current orders. It is important that orders stipulate time at Christmas and Easter to avoid disputes between the parties over these arrangements.
73. Mr Mercer raised concerns about the children’s school attendance whilst in their mother’s care. It is important that Ms Mercer ensures regular school attendance by [X] and assists her to complete her homework regularly.
74. The writer is concerned that the co-parenting relationship between the parents continues to be acrimonious. Mr Mercer does not appear to have resolved the loss of his marriage with Ms Mercer. His unresolved hurt appears to translate to conflicts and a tendency to perceive situations in an alarmist fashion and to engage in controlling behaviours. He also appears to prioritise his parental rights to as much time as he can have with the children ahead of their needs. He may benefit from ongoing individual counselling to help him heal from the breakdown of his marriage.
75. [Y] has clearly been triangulated in the mistrustful and conflicted relationship between his parents and has survived by aligning with his father’s views. It is important that he has a counsellor that he can speak to about issues that impact him emotionally.
76. Equal shared parental responsibility may prove challenging unless these parents engage in counselling through the (omitted parenting program) to improve their parental communication and obtain counselling for the children as required from time to time.”
The details of the report writer’s qualifications and experience were annexed to the Report and no one challenged her qualifications or her ability to offer an opinion on what was in the children’s best interests. The Report was taken into evidence and the report writer was cross examined.

Evidence at the trial

During the course of the evidence, a question arose as to whether social media material (and other documents which included messages between inter alia the mother and [C], and separately [C] and [Y]) that was put to the mother and on which the father sought to rely as exhibits, had been obtained in contravention of the Telecommunications (Interception and Access) Act 1979 (Cth). To address this, the father sought leave to file a further affidavit from the paternal grandmother, which explained how that material had come into his possession.
Although s69ZT of the Act excludes certain parts of Chapter 3 of the Evidence Act 1995 (Cth) in the child related proceedings Part 3.11 of Chapter 3, which deals with discretionary and mandatory exclusions is not excluded by the operation of s69ZT. The question of admissibility is determined by the relevant provisions in the Evidence Act 1995 (Cth) and relevantly for present purposes ss.135-138. A number of decisions regarding the admissibility of the above material were referred to in submissions before the Court.[1]
[1] see Weston v Bell [2011] FamCA 199 at [46] to [49], Kawada and Ors [2011] FamCA 659 and Russell & Russell [2012] FamCA 99 at [397] to [426].
Ultimately, having regard to the relevant provisions of the Evidence Act 1995 (Cth) and that such evidence would otherwise be relevant as rationally affecting the assessment of the probability of the existence of facts in issue and that the desirability of their admission outweighed their exclusion Counsel for the father was permitted to continue questioning the mother about the content of same (and ultimately tendered as exhibits many of those social media and text messages).
In Lackey & Mae [2013] FMCAfam 284, Neville FM (as His Honour then was) noted at paragraph [9] that:
“an unfortunate and increasing feature of modern litigation, particularly but not exclusively in family law, is the use of ‘social media’.”
The “feature” referred to by His Honour was on display is this case. Indeed, subject to what is set out below, it is trite to observe that the disruption caused to home life by access to and inappropriate use of mobile phones and other electronic devices is something that all families struggle with. As the evidence in this case demonstrates, that disruption (and potential for adverse impacts on children exposed to it) is magnified many times over when adults are unable to restrain either themselves or others (over whom they have parental authority) from inappropriate conduct on such platforms.

The father’s evidence

The father gave evidence and was cross examined. The father adopted his affidavits filed 14 March 2018 and 27 March 2018 respectively.
The father was asked questions in cross examination about text messages between [C] and [Y] by Counsel for the mother. The father acknowledged his relationship with [C] was now estranged but denied being rejecting or cruel to him. Counsel for the mother put her client’s case to the father that he had been lazy, controlling and cruel during their relationship (including to [C]) all of which he denied. The father also denied being embittered as a result of the mother calling off their relationship because of inter alia his behaviour towards [C]. The father agreed it had been at his instigation that following separation [Y] had lived with him and [X] lived with the mother.
The father agreed that whilst his case before the Court was now different to what it had been when it was filed, at that time there was no provision in the orders he sought for [Y].
When asked about the interim orders made in June 2017 the father’s answers made plain he harboured misgivings about the events leading up to the making of those orders and was “thrilled” when following the family report interviews, [Y] returned to his care.
Despite being pressed by Counsel for the mother the father appeared to find it difficult to give the mother any credit for recognising that this is what [Y] wanted. The father agreed with the proposition put to him that he considered himself to be the superior parent to the mother and said this was because of his “involvement” with the children.
Counsel for the mother took the father to [X]’s school attendance records up to mid-March 2018 and his response was damning with faint praise. The father’s response, delivered rather acerbically, was that the mother had done a good job for 5 weeks. The father agreed with the proposition put to him that the mother had never lived up to his standard. When asked why [Y] appeared to “mirror” his complaints about the mother to the report writer, the father said [Y] must have “just put 2 and 2 together”.
When questioned by the Independent Children’s Lawyer the father agreed he had initially been okay, for [X] to live with the mother. However, the father’s evidence was this had since changed for the reasons referred to earlier.
The father agreed with the Independent Children’s Lawyer that [X] liked her current school, had worked hard there and wanted to stay there, but he still maintained his position that she should live with him (and go back to her old school). The father believed this would work as “it was easy to appeal to girls”. The father argued his proposal was “the lesser of two evils” and said whilst he agreed [X] was more comfortable in the mother’s home he wanted different arrangements for the children than those sought by the Independent Children’s Lawyer.
When asked about his availability to facilitate changeovers on a Friday at Location B, as sought by the Independent Children’s Lawyer, the father said that would cause him trouble as he helped his partner at that time.
As indicated earlier, that trial was adjourned from 10 April 2018 to 18 July 2018 to allow the Independent Children’s Lawyer to obtain the records of the psychologists who saw the children. When the matter returned to Court the father was recalled, by agreement, and asked questions in cross examination about inter alia events in late April 2018 by Counsel for the mother.
The father denied being aggressive to [C] and denied any knowledge of whether there was to be any charges brought against him arising from the incident.
In relation to the attendance of the Mr A at his home, the father agreed both children had been there at the time of the appointments.
The father was asked about events at changeovers between April 2018 and July 2018 and said he believed the mother showed no interest in spending time with [Y] and had focussed her attention on [X].
When asked about his position if the report writer, in her evidence before the Court, maintained her recommendation that [X] should continue to live with her mother, the father’s conceded that although he “would not like it”, if all the evidence had been looked at he would then accept the decision.

The paternal grandmother’s evidence

Ms R Mercer swore two affidavits filed 14 March 2018 and 19 July 2018. Ms R Mercer was not required for cross examination. Her affidavits detailed her involvement with the children and how she came to provide the father with certain social media and text messages (which were before the Court by way of exhibits).

The mother’s evidence

The mother was called to give evidence and was cross examined. The mother adopted her affidavits filed 29 May 2017, 9 March 2018 & 3 July 2018.
During the course of the mother’s evidence on 10 April 2018 it became clear for the first time to the Court that the children had attended upon psychologists arranged separately by the parties. As there had been no material adduced from these health professionals it was agreed the matter needed to be adjourned.
When the trial resumed on 18 July 2018, the mother was recalled and asked questions about inter alia the incident in late April 2018 and what had happened since the matter had last been in Court.
The mother was cross examined in some considerable detail about various social media exchanges (which were subsequently tendered) including between herself and [C] or between [C] and [Y]. Not only did the mother’s answers lead me conclude she knew more than she let on but that these exchanges were unedifying and were the result of poor parenting decisions made by her. It is only necessary to rehearse a few of those exchanges to illustrate why this is so.
Exhibit ICL 2 contained text messages between [C] and [Y] which were redolent with vituperative and wild language and threats from [C] towards [Y]. Exhibit A8 set out exchanges between the mother and [C] (apparently at the time the child inclusive conference was being conducted). Exhibit A9 included exchanges between the mother and [C] containing disparaging references to the father and [Y].
When challenged as to whether what was said in some of the messages was indicative of her attitude to [Y] and the relationship with the father, tellingly instead of squarely denying this was the case, the mother’s repeated response was to say she had been hacked.
The mother was questioned by Counsel for the father about her motive for, and involvement with, the father’s brother. The mother said plainly that she had known the father’s brother most of her life thereby implicitly rejecting the father’s allegation she had done so to torment or threaten him.

The mother was asked about her claims as to why she had been unable to collect [Y] to spend time with him but her evidence did not result in any telling admissions. The mother agreed with the proposition put to her by Counsel for the father that his client had consistently enabled and facilitated time between [Y] and [X].
In response to questions from the Independent Children’s Lawyer the mother agreed that (save for spending time together on Mother’s Day which was arranged by [Y]) she had not spent time with [Y] since before the last Court date. The mother was also questioned about her proposal that [Y] travel by train for spend time arrangements and eventually accepted that instead of this, it was possible for her to effect changeover at Location B.

The report writer’s evidence

The report writer was called to give evidence and was cross examined. In her evidence before the Court, the report writer confirmed she had been provided with the most recent proposals of each of the parties and was aware that the ‘major’ issues between the parties had come down to where [X] would live and the arrangements to facilitate time between the children and the other parent.
In response to questions from the Independent Children’s Lawyer the report writer maintained that notwithstanding the evidence before the Court of the mother’s knowledge of and involvement in the exchanges on social media, it remained in her view (consistent with what was set out in the Report) that it was in [X]’s best interests that she live with the mother.
The report writer made clear in her evidence that there were different strengths to the children’s relationships with each of their parents. The report writer was unequivocal in her evidence when she said that [X] felt safe and secure in the care of the mother. Importantly, the report writer explained that [X] had a real fear that if she were to live with her father she would never see her mother again.
The report writer’s evidence made clear that when considering her recommendations, she had balanced the importance of the siblings’ relationship, the identified quality of parenting in both homes, the understanding of parental responsibilities exhibited by each parent, and the opportunity for both children to have the chance to have a meaningful relationship with their parents.
Ultimately, the report writer maintained it would not be in [X]’s best interests to change her living arrangements. The report writer’s evidence was that both children’s well-being would be “enhanced” by being with the parent who they felt closest to and [X] was “better off” living with the mother. When questioned by Counsel for the mother, the report writer gave evidence that [X] would be “emotionally harmed” if she lived with her father.
The report writer rejected the suggestion put to her by Counsel for the father that her “approach” was informed by the s11F memorandum and made clear, as was set out in the Report, her recommendations were arrived at in light of all of the material referred to in the Report.
The report writer acknowledged that she had assumed there was a “neutral” view of each parent, in the other’s home. When the evidence of the social media exchanges between the mother and [C] were put to the report writer she commented that it was “troubling”. However, notwithstanding this, she did not resile from her opinion as to what was in the child, [X]’s best interests.
The Full Court in Hall & Hall [1979] FLC 90-713 made certain observations about the general nature of the role of family reports and the evidence of report writers such as that given in this case. I also bear in mind what the Full Court in Friscioni & Friscioni [2010] FamCAFC 108 had to say about the role of family reports and the weight the Court can and should place on any recommendation such as those made by the report writer in this case.[2]
[2] see also Reeves v Grinter [2017] FamCAFC 19 at para [15] to [16] and authorities referred to
Moreover and consistent with the approach of the Full Court in Bass & Bass [2008] FamCAFC 67, the father had every opportunity to pursue the report writer in cross-examination. On the basis of the evidence before the Court, and as I was given no reason not to do so, I accept the report writer’s evidence. I am satisfied her recommendations should be given substantial weight.

Final submissions

The Independent Children’s Lawyer’s position

The Independent Children’s Lawyer’s final submissions were to the effect that in light of the evidence at trial the presumption of equal shared parental responsibility was rebutted and it was not in the children’s best interests for there to be an order for equal shared parental responsibility.
In final submissions, the Independent Children’s Lawyer maintained, subject to that qualification, that Court should make the final orders (as referred to at paragraph [36]) above) set out in his case outline.
The Independent Children’s Lawyer’s final submissions referred to the decision of Cronin J in Penski v Kocher [2013] FamCA 255 at [72], where it was said:
“…until such time as the parents can have a modicum of respect for each other and make decisions in a consultative way, the person who has the major responsibility for the daily activities including giving the child a home base, should be the person who has the responsibilities for making those long term decisions…”.
It was submitted that given the evidence in this case of inter alia the parties’ acrimony and their inability to communicate or co-operate that decision was “illuminating”.
The Independent Children’s Lawyer’s final submissions noted that since separation [X] had lived with the mother and spent time with the father whilst [Y] had (save for a period of months last year) lived with the father and spent (albeit interrupted) time with the mother. The Independent Children’s Lawyer noted a continuation of these living and spend time arrangements was consistent with the children’s views.
The Independent Children’s Lawyer relied on the evidence given by the report writer and in particular that part of that evidence as to the importance for her best interests of [X]’s relationship with her mother. Given the matters referred to above it was maintained that it was not in their best interests to change the children’s living arrangements.
The Independent Children’s Lawyer’s final submissions, which took into account the background to these proceedings, balanced the competing s.60CC considerations and the opportunity for the children to continue to spend regular time with both their parents and each other were to the effect that given the importance of [X]’s relationship with her mother it was more likely to be in her best interests for orders to be made for her to live with her mother.
For those reasons and as was elaborated on in final submissions, it was submitted that the final orders that were being sought were as in the Independent Children’s Lawyer’s case outline but that these should be amended by inserting new Orders 1 to 3 as follows:
“1. The mother shall have sole parental responsibility for the child [X] born 2009 (“[X]”) in relation to major long term issues about:
(a)     education (both current and future);
(b)     religious and cultural upbringing;
(c)      health;
on the conditions that:
(d)the mother will contact the father in writing and provide her views about any such issue;
(e)the mother shall consult with the father with regard to any such issue;
(f)the mother and father will make a genuine effort to come to a joint decision about any such issue;
(g)if no agreement is reached between the mother and father, then within 14 days the mother shall make the final decision and advise the father in writing (email or text message) of the decision about any such issue.
(2) The father shall have sole parental responsibility for the child [Y] born 2005 (“[Y]”) in relation to major long term issues about:
(a)     education (both current and future);
(b)     religious and cultural upbringing;
(c)      health;
on the conditions that:
(d)the father will contact the mother in writing and provide her views about any such issue;
(e)the father shall consult with the mother with regard to any such issue;
(g)the father and mother will make a genuine effort to come to a joint decision about any such issue;
(h)if no agreement is reached between the father and mother, then within 14 days the father shall make the final decision and advise the mother in writing (email or text message) of the decision about any such issue.
(3)The mother and the father shall have equal shared parental responsibility for the children [Y] born 2005 (“[Y]”) and [X] born 2009 (“[X]”) (collectively “the children”) in relation to major long term issues about:
(a)     the children’s name; and
(b)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the other parent.
and for Orders 2 to 13 of the Final Orders to be renumbered and read accordingly.”

The mother’s position

In final submissions, the mother conceded that the presumption of equal shared parental responsibility should be rebutted and concurred with the final submissions and orders sought by the Independent Children’s Lawyer on the issue of sole parental responsibility (subject to the exception referred to) being allocated to the parent with whom the children were living.
The mother’s final submissions also agreed with the Independent Children’s Lawyer’s final submissions (and largely the time spent orders sought by the latter) for the reasons elaborated on in the Independent Children’s Lawyer’s submissions. However the mother sought there be no Thursday time for [X] with the father and minor changes to start and finish times.
The mother’s final submissions were critical of the father given what was said to be the evidence regarding the Mr A and the “father’s use of social media platforms against” the mother.
In final submissions Counsel for the mother sought to downplay the import of and deflect responsibility for her client’s facebook posts and involvement in or awareness of the other electronic communication (which were described as “extraneous matters”). In those submissions the mother’s position was the Court must still view the father’s capacity to foster a regular and positive relationship between her and [Y] as “questionable”.

Father’s position

In final submissions on behalf of his client Counsel for the father epigrammatically referred to Tolstoy’s observation that each unhappy family is unhappy in its own way.
The father’s final submissions conceded the force and logic of the Independent Children’s Lawyer’s position in relation to the presumption of equal shared responsibility being rebutted. The father’s final submissions also agreed with the orders sought by the Independent Children’s Lawyer on the issue of sole parental responsibility (subject to the exception referred to) save for one issue. It was the father’s position that the parties must have equal shared parental responsibility for education.
The high point of the father’s position in final submissions, in support of an order for [X] to live with him, appeared to be there was no equivalence in the attitude to the other parent and their relationship with the children and the responsibilities of parenthood as between him and the mother. The rhetorical point being made in those submissions, which was by reference to the social media material before the Court, was that if that is how the mother behaves what faith could the Court have she would promote the children’s relationship with the father.
Pointing to the “unseemly and distasteful” evidence (i.e. the exhibits of the social media and other electronic communication) the father’s final submissions sought to construct reasons why the Court should reject the report writer’s recommendation as to with whom [X] should live.
As beguiling as those submissions were, the difficulty they faced and failed to confront was that those very issues had been put to the report writer who as the Independent Children’s Lawyer’s submissions noted, considered them but remained “resolute” and “unequivocal” about what arrangements were more likely to promote [X]’s best interests.
The father’s final submissions understandably rehearsed those parts of the evidence that illuminated the mother’s manifest failings. However, missing from the father’s submissions was what appeared to be of some not inconsiderable importance to the report writer, a focus on [X]’s needs as an individual.
The father’s final submissions properly noted that [Y] was not “irrelevant” because there was no dispute that he would live with the father. However, those submissions failed to grapple with the report writer’s evidence before the Court which made clear she had considered arrangements that best suited both children, including maximising the opportunity for both children to be together and (even give the “concerning” evidence in the exhibits of the mother’s attitudes) she made the recommendations she did.
Lastly, and subject to the concurrence with the Independent Children’s Lawyer’s position on sole parental responsibility (and with the caveat noted earlier), the father’s final submissions maintained that the Court should make the parenting orders he sought in his case outline. Alternatively it was requested that the spend time arrangements “remain as they are” (though what he said they were was not particularised).

Approach to parenting orders

Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
“1.    The objects of this Part are to ensure that the best Error! Hyperlink reference not valid. of Error! Hyperlink reference not valid. are met by:
(a)     ensuring that Error! Hyperlink reference not valid. have the benefit of both of their Error! Hyperlink reference not valid. having a meaningful involvement in their lives, to the maximum extent consistent with the best Error! Hyperlink reference not valid. of the Error! Hyperlink reference not valid.; and
(b)     protecting Error! Hyperlink reference not valid. from physical or psychological harm from being subjected to, or exposed to, Error! Hyperlink reference not valid., neglect or Error! Hyperlink reference not valid.; and
(c) ensuring that Error! Hyperlink reference not valid. receive adequate and proper Error! Hyperlink reference not valid. to help them achieve their full potential; and
(d)     ensuring that Error! Hyperlink reference not valid. fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their Error! Hyperlink reference not valid..
2. The principles underlying these objects are that (except when it is or would be contrary to a Error! Hyperlink reference not valid.’s best Error! Hyperlink reference not valid.):
(a)     Error! Hyperlink reference not valid. have the Error! Hyperlink reference not valid. to know and be cared for by both their Error! Hyperlink reference not valid., regardless of whether their Error! Hyperlink reference not valid. are married, separated, have never married or have never lived together; and
(b)     Error! Hyperlink reference not valid. have a Error! Hyperlink reference not valid. to spend time on a regular basis with, and communicate on a regular basis with, both their Error! Hyperlink reference not valid. and other people significant to their care, welfare and development (such as grandparents and other Error! Hyperlink reference not valid.); and
(c) Error! Hyperlink reference not valid. jointly share duties and responsibilities concerning the care, welfare and development of their Error! Hyperlink reference not valid.; and
(d)     Error! Hyperlink reference not valid. should agree about the future Error! Hyperlink reference not valid. of their Error! Hyperlink reference not valid.; and
(e)….”
Section 64C of the Act provides that a parenting order may be made in favour of a parent of the child or some other person. Section 60CA of the Act provides that:
“In deciding whether to make a particular Error! Hyperlink reference not valid. in relation to a Error! Hyperlink reference not valid., a Error! Hyperlink reference not valid. must regard the best Error! Hyperlink reference not valid. of the Error! Hyperlink reference not valid. as the paramount consideration.”
Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility for the child until such time as the child attains the age of 18 years unless the Court makes an order which alters that parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must 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.
Section 61DA(2) of the Act provides in effect that 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 abuse of the child or another child member of the parent’s family or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable.
This is provided by s.65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s.65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable. Section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonable practicality’.
These principles have been examined in Goode & Goode (2006) FLC 93-286 and in MRR v GR (2010) 240 CLR 461. Importantly, for the purposes of determining what parenting orders are in the children’s best interests the Court is not required to make findings of fact on every factual dispute raised by the parties[3].
[3] see Baghti & Baghti and Ors [2015] FamCAFC 71
The parties’ competing proposals, set out above, identifies the issues in dispute. Given this, it is now necessary to turn to the consideration of the relevant section 60CC factors, given the evidence in these proceedings in the context of the principles outlined above. In doing so, it’s important to note that I have considered all of the evidence and the parties’ submissions, all of which, for the sake of brevity, won’t be rehearsed.

Consideration of factors

In determining the best interests of the children there are two primary considerations and several additional considerations to take into account. Having done so, the Court will consider the issue of parental responsibility in light of the foregoing discussion, and the principles set out above to determine what parenting orders should be made.

The benefit to the children in having a meaningful relationship with both of the children’s parents

On paper at least it is agreed by all parties that there is a benefit to both children having a meaningful relationship with both parents. It is also agreed, the level of acrimony between them is inhibiting this.

The father alleges that the mother has a propensity to involve the children in parental conflict. He supports this assertion with evidence of text messages between the mother and her son, [C]. The mother argues that the father“… prioritise(s) his parental rights to spend as much time as he can have with the children ahead of their [the children’s] needs”.
While it is well accepted by the case law that ‘meaningful’ does not mean ‘optimal’, the provision is not simply focused upon the question of whether or not there should be a meaningful relationship, but rather the benefit that the children may derive from it.
The work of the provision is not ended by answering the question “will there be a meaningful relationship under this particular arrangement?” Rather, the provision requires an assessment of the relationship and a consideration, in the context of how that relationship is to be exercised, of the benefits that will accrue.
Whilst in their submissions both parties professed to understand the importance of the children’s relationship with the other parent, their evidence left the impression (though each for different reasons) that these were merely words. Nonetheless, those submissions even if contrived for forensic purposes must be given some weight.

The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

In the past, the father has obtained an intervention order against the mother’s partner for threatening both the father and [Y]. However, [Y] made no disclosures to the report writer.
The mother alleges that the father was abusive towards her and [C], during the marriage, and has expressed concern that the father continues to denigrate her to the children. The father says the same about the mother.
The Independent Children’s Lawyer submits that there are no findings of fact in relation to such concerns between the parents and by each of them towards the children. Any previous reported concerns have been investigated and assessed by the Department of Health and Human Services as not requiring their involvement.
For the purposes of s60CC(2)(b) the evidence did not prove either child is at risk of harm in either party’s household by reason of subjection or exposure to neglect, abuse or family violence. However I accept the Independent Children’s Lawyer’s submission that orders should be made with appropriate restraints on each of the parents to ensure the children’s physical and emotional well-being is not compromised when living and spending time with each parent.

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 Full Court in R & R: Children’s Wishes (2000) FLC 93-000 at 87, 071, said the wishes of the child are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child. Importantly, it was made clear the overall welfare of the child is the determining factor.
The father submitted that [X] is still under 10 years old and as such, her views ought to not be considered paramount particularly where there are concerns about the mother’s potential for embroiling the children in parental conflict. The mother’s outline of case acknowledges that [Y] is happiest living with the father. The mother relied on [X]’s views as conveyed to the report writer.
The children have expressed strong views. [Y] wants to live with the father which the parties both agree should continue. [X] wants to live with the mother and as the report writer’s evidence makes clear those views must be given some weight.
[Y]’s views (as to his living arrangements) are supported by both parents. The Report noted that [X] said she wished to remain living with her mother and to continue with the current arrangements. The Independent Children’s Lawyer noted that the children’s views as expressed in the Report were consistent with their expressed views when meeting with him. I accept the submission that the children were aware of their family dynamic and that they were ‘happy with the way things are’.

The nature of the relationship of the children with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the children)

All parties recognised and respected the importance of [Y]’s relationship with the father and his living arrangements were not contentious. The father disputed that “[Y]’s relationship with his mother has improved” (as was set out in the Report) when the mother had spent minimal time with [Y] (since the beginning of the year) and this appeared to be due to the mother being unwilling to change other commitments. The mother made what appeared to be only half-hearted attempts to deny this.
On the evidence before the Court, I accept as more likely, the observation made by the report writer that [Y] has survived by aligning with his father’s views and this may have had an impact on his relationship with the mother. I also accept the Independent Children’s Lawyer’s submission that this should be supported by him have the opportunity of spending regular time with the mother during school term and on school holidays.
[X] has consistently spent regular time with the father since separation (and [Y] since he returned to live with the father) though each parent seeks to claim credit for this. [X] has a close and well-formed bond with the mother. As the Independent Children’s Lawyer noted the evidence of the report writer was that [X]’s relationship with her mother was of vital importance for her emotional well-being.
Even allowing for the mother’s demonstrated propensity to allow her poor opinion of the father to prevail in her household there is balanced against this, the history that since separation [X] has continued to enjoy spend time with the father and that her relationship with the father appears unaffected.
Whilst acknowledging it was not “ideal” the report writer recommends (and the Independent Children’s Lawyer supports) a continuation of the current (separate) living arrangements for the children provided that they see each other during weekends and school holidays.
The presence of the half sibling [C] in the mother’s home, was of historical significance. This is so because of the import of the text messages between [Y] and [C] that appeared to have been sent with the tacit acceptance of the mother. Whilst the father was concerned about the potential for the mother to engage in or allow further such behaviour and its impact on [X] (and her relationship with the father) no one suggested this half sibling relationship was of significance beyond this.
Finally, neither party suggested their particular proposals would be more likely to promote the children’s best interests because of their relationship with other persons.

Extent to which the parents have taken opportunity to participate in decisions – spend time and communicate

The father’s case was critical of the mother for several reasons. Firstly, for failing to take steps to spend time with [Y] since he returned to live with him (despite his regular proposals for [Y] to spend time together with the mother). Secondly, what he said was [X]’s poor school attendance record. The father has complied with the interim orders and it is not disputed he has ensured that [X] is able to spend time with him in accordance with those orders. The father asserts that if orders are made for both children to reside with him he would facilitate and encourage both children to have a relationship with the mother, on the basis that the father and mother share travel duties for changeovers.
In contrast, it is the mother’s case that the father has not been encouraging a relationship between her and [Y] since late 2017 when [Y] resumed living with the father. The mother lives in Town D and the father lives in Location B, and travel has been an issue between the parties and necessarily a factor that has and will impact on the practicability of the parenting arrangements.
Whilst the mother is open to a measure of criticism under this factor neither parent is blameless and the evidence demonstrated both parents at times had engaged in unilateral decision making due, in most cases, to poor communication.

The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from: either of his or her parents; or any other child, or other person (including any grandparent or other relative), with whom he or she has been living

This is a decisive factor in this case, at least in so far as it concerns the resolution of the dispute between the parties over where [X] should live. The report writer’s evidence which was interrogated by all parties, was definitive on this issue for the reasons referred to earlier.
The father asserted in his case outline that the report writer did not make a finding that separating [X] from the mother would be “traumatic” or “destructive” as asserted by the mother in her outline of case. The father in his case outline, said that the “suggestion” in the Report that [X] reside with the mother appeared to be solely based on [X]’s views and wishes, rather than the concern that any harm would come to [X] if orders were made for her to reside with the father. The father’s case outline then went on to take issue with the Report’s recommendations on two grounds.
However, those grounds were put to the report writer in her evidence before the Court and were rejected for the reasons referred to earlier. The father’s submissions failed to overcome the evidence of the report writer and her assessment that [X]’s relationship with the mother (and its importance to her emotional and psychological welfare) was that it was qualitatively different to that with the father which could continue to be fostered by regular spend time.
The mother in her case outline, submitted that it would be traumatic and destructive for [X] to be removed from the care of her mother, as proposed by the father. It was also submitted that the father’s application for both children to live with him demonstrated a significant lack of insight in particular in respect to [X]’s needs and views.
The Independent Children Lawyer’s position in light of the evidence was that the children’s living arrangements should remain as they are and subject to minor variations in spend time these were more likely to preserve the opportunity for a meaningful relationship between both the children and their parents.
I have been given no proper reason not to accept the evidence of the report writer on this issue and I accept the submissions of the Independent Children’s Lawyer that it would not be in [X]’s best interests to change her living arrangements.

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

Given their respective applications, the Court has not been asked to consider equal time which would, in any event, not be in the children’s best interests or reasonably practicable.
The Report identified, and the parties’ evidence before the Court corroborated this, that there were practical issues with the current interim arrangements. Between April and July 2018 it appears the parties’ commitments changed again and their stated reasons for being unable to effect changeover at various times fell away. Given the need to minimise further conflict and provide certainty for the children, orders should be preferred that do just that.
The father’s case was that practical difficulties were caused because the mother had moved to Town D from Town C and even though he had continued to make himself (and [Y]) available to attend changeover the mother had failed to do so on most occasions this year.
The capacity of the parents to spend regular time with the children when not in their respective care, was impacted upon by the distance between their respective residences. The evidence before the Court, despite some half-hearted attempts to do so, did not however demonstrate this was not practicable (provided there were minor changes to start/finish times).
The Independent Children’s Lawyer’s final submissions maintained (and I accept) that the parties should share responsibility for changeovers (and meet at Location B for weekend time changeover) as this was more likely to promote the ability of [Y] and [X] to maintain their relationship and that with both of their parents.

The capacity of each of the children’s parents; and any other person (any grandparent or others) to provide for needs of children, including emotional and intellectual needs.

The father asserted in his case outline that although both the father and mother were capable of caring for the needs of the children, he was the more appropriate choice for both children, on the basis that the mother has involved the children in parental disputes (as she did with [C]). The mother asserted in her case outline that she was the appropriate primary carer for [X], having always been her primary carer and that this accorded with [X]’s wishes. The mother claimed she had demonstrated her capacity to care for [Y]’s needs by agreeing to his wish to return to Town C to live with his father and attend his previous school in Town C. The mother said she was concerned however, that the father would not facilitate [Y]’s relationship with her, whilst he blamed the mother for failing to do so. The father pointed to his willingness to do so by saying he had brought [Y] to changeover.
Unfortunately the evidence of the social media and text messages makes clear that the importance placed on the children’s relationship with the father in the mother’s household is limited. Against this there is the fact that the mother has agreed to [Y] living with the father and there is no evidence she has stood in the way of [X] continuing to spend regular time with or not encouraging her relationship (at least) with the father.
Although criticism could be made of the both parents and their understanding of their parental responsibilities, there was no real criticism of the day to day care of each of the children. However, each of the parents demonstrates deficiencies in their ability to provide for certainly [Y]’s emotional needs although for different reasons. The end result is both the children are aware of their family dynamic because of the actions of both parents (and despite his claims to be blameless in this regard the father’s evidence did not demonstrate otherwise).
I have already squarely identified the mother’s failings in relation to social media and text message material in exhibits before the Court. The father did not directly challenge the report writer’s view that [Y] mirrored some of the father’s views of the mother.
Moreover, whilst the mother’s poor choices and behaviour was more clearly on display (thanks to the veritable ‘Alladdin’s Cave’ of social media and text message material Counsel for the father so carefully mined) [4] there was a basis to be circumspect about the father. The report writer’s concerns that the father “did not appear to have moved on” from the relationship were congruent with his affect and attitude when giving evidence before the Court.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children

[4] see Lackey v Mae [2013] FMCAfam 284 at [9]

Each of the parties addressed this factor in their respective case outlines but didn’t return to this factor specifically as being relevant in light of the evidence.
The evidence did not cast either parents in a favourable light although again, for different reasons. Ultimately, both parties struck me as being somewhat immature and certainly their willingness to expose the children to their conflict leaves much to be desired.

The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents

Although this is plainly a relevant matter it has been canvassed already. The mother can fairly be criticised for failing to shield the children from the conflict with the father and for the failure to properly address the dispute between [C] and [Y].
The father in his case outline rejected the suggestion that he places his own needs above those of the children, and pointed to his consent to the interim orders (in line with the recommendations of the 11F Report) in June 2017 as support for this.
The mother in her case outline repeated her concern that the father did not and would not facilitate a relationship between her and [Y]. The mother pointed to paragraphs 74 & 75 of the Report as support for her concerns in relation to this factor.
The mother demonstrated an indulgent attitude to [C]’s behaviour towards inter alia [Y] and this can perhaps be explained (but not excused) by her readiness to listen to and accept criticisms of the father. However, her failure to exercise her parental authority to stop inappropriate behaviour by [C] which included making threats towards [Y], is something of which she should reflect on.
The father, on the other hand, appeared emotionally dependant on and certainly overly keen to expose [Y] to adult issues, all the while portraying himself as a victim of the mother’s campaign to marginalise him. The father, I am satisfied, left [Y] under no misapprehension he held the mother responsible for property disappearing from the former matrimonial home after she left. In doing so, the father did [Y] no favours and simply served to further divide the family.
Both parties blame the other for their conflict and in particular [Y]’s emotional tumult (albeit for different reasons). So much was evident from the way in which they instructed their lawyers to conduct the trial.

Any family violence involving the children or a member of the children’s family

Both parties make historical allegations in this regard against the other and those connected with the other party. All allegations of family violence are denied.
Whilst the behaviour of both parties certainly at the incident in April 2018, should be condemned as variously selfish, thoughtless, juvenile and anti-social there are no findings in relation to allegations of family violence between the parties and between the parties and the children.
Accordingly, no factual findings are made in respect of the contested evidence about family violence. None are required to determine the dispute given the parameters of the issues constructed by the parties.

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

Both the mother and the father make no submissions in relation to this issue. The Independent Children’s Lawyer submitted that his proposed orders would minimise the necessity for the parties to issue further proceedings regarding parenting arrangements as they are supported by the report and consistent with the practical reality of the children’s past and present living circumstances.
The orders that are least likely to lead to the institution of further proceedings are of course to be preferred, and in that regard, I accept the submissions of the Independent Children’s Lawyer that the orders he proposed were consistent with the report writer’s recommendations and the children’s past and present living arrangements.

Parental Responsibility

The Independent Children’s Lawyer’s submissions as to why the presumption should be rebutted and the evidence of the parties’ acrimony and lack of ability to co-operate is noted. Neither of the other parties gainsaid those submissions nor the proposed solution to that dilemma offered by the Independent Children’s Lawyer.

It was clear from the evidence the parties have different parenting styles, have a track record of being unable to make decisions together, and have each made decisions unilaterally about long term issues that have caused difficulties for the children. Moreover, there is no trust and little or no respect evidenced by one parent for the other either as a person or as a parent. When the position of the parties and the evidence of their poor record in communication is added to this ledger the requisite satisfaction is reached that it is not in the children’s’ best interests for the presumption to be applied.
Whilst all parties concurred with the Independent Children’s Lawyer’s position on this issue and that the Court should make the orders sought by the Independent Children’s Lawyer on that matter, the father’s agreement was subject to one reservation.
The father’s final submissions sought that there be an order for equal shared parental responsibility for education. The stated reason for doing so was “otherwise there is a substantial risk that the parent with whom the child is not living will be shut out of information from the child’s school about basic matters like attendance and progress”. There was also the concern for the parents to be able to communicate with the school.
In Pruchnik & Pruchnik(No.2) [2018] FamCA 226 at [33] to [57] the Full Court of the Family Court discussed the situation where a Court makes an order for parents to have equal shared parental responsibility in relation to an aspect but not necessarily every aspect of parental responsibility and referred to the earlier decisions of Newlands v Newlands (2007) 37 FamLR 103; Chappell & Chappell (2008) FLC 93-382 and Doherty & Doherty [2016] FamCAFC 182.
The father’s proposal with respect to education requires the Court to consider the allocation of parental responsibility about that matter even though for the purposes of parental responsibility it was conceded that the other longer term issues should be reposed solely in the parent with whom the child is living
To determine that issue, best interests must be considered and in light of the discussion of the relevant factors set out earlier that requires focus on the capacity of the parties to communicate.
Both parties evidence makes clear sharing of responsibility for decisions about each child has been unworkable and there is nothing to suggest requiring the parties to make these types of long term decisions would lead to any different outcome.
It would not be in the best interests of either [X] or [Y] for there to be continuing conflict over a long term issue such as education and no way of resolving it. Moreover, arrangements to address the stated reasons put forward by the father in final submissions for such an order are all addressed in the Independent Children’s Lawyer’s proposed orders.
Given the demonstrated propensity of the parties to resort to conflict there needs to be a circuit breaker by having one parent making the decision. For the children’s sake, given the above, whichever parent they are to live with should have the final say on long term issues and sole parental responsibility (subject to the exceptions they agreed to).

What parenting orders should be made

In final submissions all parties conceded that the evidence before the Court compelled a finding that the presumption of equal shared parental responsibility should not apply. The parties accepted that the parent with whom the children would be living with should have sole parental responsibility (subject to the father saying the parties should share responsibility for education).
Given the findings made in relation to parental responsibility generally and the resolution of the issue raised by the father, it is not strictly necessary to consider the requirement for equal or substantial and significant time pursuant to the provisions in s.65DAA and the Court should then make parenting orders consistent with the findings made in relation to s.60CC, having regard to s.60CA and s.60B.[5]
[5] see Heath & Hemming (No 2) [2011] FamCA 749,
Neither of the parties suggested it was in the children’s best interest to spend equal time with both parents. As identified earlier in these reasons, the parties were agreed [Y] should continue to live with the father and spend time with the mother though they disagreed on the arrangements for this.
Neither parent is proposing a shared care arrangement for [X]. Given the level of antipathy between the parents that, in any event would not be an appropriate order to make. Whichever of the child’s parents has [X]’s primary care, the other is making proposals for her to spend time with the other parent that is close to substantial and significant as defined by the Act.
What occupied the Court’s time was whether it was in [X]’s best interests to remain living with her mother and spend time with the father, as opposed to the orders sought by the father which were that [X] live with him and spend time with mother. For the Court to take the drastic step to change a child’s primary carer, particularly where there has been a longstanding arrangement for that child to be in the care of his or her parents, there must be very compelling reasons which in light of my consideration of the evidence and the relevant s.60CC factors are absent in this case.
In that event the father’s submissions were that the existing “time arrangements” should “remain as they are” whilst the mother proposed minor changes to start and finish time/s and removing the Thursday after school time for [X] with the father. The Independent Children’s Lawyers proposed orders (with minor amendments to the start/finish times provided therein, which given the evidence, are necessary to accommodate travel for both parents to most of the changeovers in Packenham) were consistent the report writer’s evidence.
Subject to this, in light of my consideration of the above s.60CC factors and the accepted evidence of the report writer, I am satisfied it will be more likely than not in [X]’s best interests for her to live with the mother and spend time with the father (and for [Y] to live with the father and spend time with the mother) in accordance with arrangements proposed by the Independent Children’s Lawyer.

Conclusion

For these reasons I will make orders as set out at the beginning of these reasons for decision as I am satisfied in light of all of the evidence and having considered the submissions made by the parties that they are in the children’s best interests. The subpoena material obtained from Mr A and Ms B will be returned to the Independent Children’s Lawyer for destruction.

I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan

Associate:

Date: 12 September 2018