Merritt and Bruckner

[2018] FamCA 903

FAMILY COURT OF AUSTRALIA

MERRITT & BRUCKNER [2018] FamCA 903

FAMILY LAW – CHILDREN – Interim Orders – With whom a child lives and spends time – Child’s views – Where a subject child has expressed a wish to spend equal time with both parties – Where the Independent Children’s Lawyer has expressed concern that the children may be at risk in the mother’s care – Where there have been significant days of non-attendance at school

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA

Dieter & Dieter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Marvel v Marvel [2010] FamCAFC 101
MRR v GR (2010) 240 CLR 461

APPLICANT: Mr Merritt

RESPONDENT: Ms Bruckner

INDEPENDENT CHILDREN’S LAWYER: Duncan Basheer Hannon

FILE NUMBER: ADC 1267 of 2016

DATE DELIVERED: 8 November 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 24 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Jacqui Ion Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT:	Mr McQuade
SOLICITOR FOR THE RESPONDENT:	All Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Duncan Basheer Hannon

UPON NOTING that the parties are to consider undertaking separate psychiatric assessment

Orders

1. That the parties have equal shared parental responsibility for X born … 2012 (“X”) and Y born … 2014 (“Y”) (collectively “the children”).

2. That the children live with the mother.

3. That the children spend time with the father as follows:-

   a)From the conclusion of school (or if not a school day then at 4 pm) on Friday to the commencement of school on the following Wednesday (or 9 am if not a school day) commencing 9 November 2018 and each alternate week thereafter;

   b)For one half of each school holiday period as may be agreed between the parties and in default as follows:-

   i)For the second half of the short end of school term holidays;

   ii)On a week about basis during the Christmas school holiday period;

   c)From 2 pm on 25 December 2018 to 4 pm on 26 December 2018 PROVIDED the children are with the mother from 4 pm on 24 December 2018 to 2 pm on 25 December 2018.

   d)Such further and other time as the parties may agree.

4. That the parties be restrained and an injunction is granted restraining each of them from changing Y’S kindergarten from the Early Learning Centre at B Primary School.

5. That Y be enrolled at B Primary School to commence school in the 2019 academic year.

6. That the parties be restrained and an injunction is granted restraining each of them from changing either X or Y’S enrolment from B Primary School.

7. That the parties be restrained from enrolling X or Y at any other school other than B Primary School unless agreed by the parties.

8. The mother be restrained and an injunction granted restraining her from taking the children or either of them for any consultation with Dr C of D Health or from authorising that either of the children undertake any surgical procedure without the express written consent of the father.

9. That should X and/or Y be unwell and require medical attention (save and except in the event of an emergency where they will attend the E Hospital or such other hospital as may be necessary) they shall only attend upon a medical practitioner at the D Health clinic as shall be agreed between the parties.

10. That the parties will each advise the other forthwith by text message or email the details of any medical appointment booked for the children sufficiently in advance of the appointment (save and except for an emergency) that will enable the other party to attend the appointment with the child or children.

11. That an injunction be made and the parties be restrained from attending within 50 metres of their separate workplace, place of employment or residential address.

12. That any purported ill health experienced by the children or either of them shall not be taken to suspend the operation of paragraph 3 of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1267 of 2016

Mr Merritt

Applicant

And

Ms Bruckner

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Merritt (“the father”) and Ms Bruckner (“the mother”) are the parents of X born in 2012 (“X”) and Y born in 2014 (“Y”) (collectively “the children”).

2. The parties remain in dispute as to the future parenting arrangements for the children.

3. By Amended Initiating Application filed 12 February 2018, the father seeks that the children live with him and spend time with the mother as may be ordered.

4. The mother opposes the orders sought by the father and in her Response filed 5 August 2016 seeks the sole parental responsibility for the children, that they live with her and spend time with the father as the Court may determine, subject to the father being restrained from:-

   (a)consuming alcohol to excess while the children are in his care;

   (b)leaving the children alone in the care of his father; and

   (c)abusing or denigrating the mother or allowing any other person to do so in the presence of the children.

5. The children currently live with the mother and spend time with the father as provided for in orders made 14 February 2018, 28 May 2018 and 16 July 2018.  The children spend time with the father from 9 am Sunday until 9 am on the following Tuesday in each alternate weekend and on the intervening Monday from 3.30 pm until 6.30 pm.  The children spend time with the father for one half of the July and October 2018 school holidays.  Handover occurs at a fast food restaurant and is sometimes facilitated by the mother’s sister.

6. By his Amended Application in a Case filed 2 August 2018, the father seeks that the children live with him and spend limited time with the mother each Saturday from 9 am to 5 pm, or in the alternative, that the care of the children is shared on a week about basis.

7. The father also seeks orders that ensure the children remain at B Primary School and he seeks to restrict the ability of the mother to unilaterally seek medical treatment for the children.

8. The father also seeks more detailed orders to restrain the mother from attending at his place of employment and place of residence.

9. The Amended Application is supported by the Affidavit filed 2 August 2018.

10. The mother no longer seeks the orders as set out in her Response filed 20 August 2018 and her position is now as set out at [40] of her Affidavit filed 16 October 2018.

11. She concedes that until further order the children shall continue to attend B Primary School and as such orders can be made in terms of the father’s application which will ensure that the children have stability of education pending the disposal of the proceedings.

12. The mother also undertakes not to take the children to see Dr C, but that the children continue to attend their current medical practice and if on any occasion the children are ill then the father is to be advised and invited to attend the appointment.

13. Each of the parties consider that the psychiatric presentation of the other may well adversely impact upon the children.  I have indicated that I do not consider I have jurisdiction to make a standalone order for the psychiatric assessment of the parties unless a parenting order is conditional upon such an assessment taking place.

14. I do not propose to make the order as sought by each of the parties for a comprehensive psychiatric assessment, but their preparedness to undertake such an assessment should be the subject of a notation to the order.  It is open to the parties to present evidence, including evidence of their mental health, if considered necessary to support the orders that the parties seek or in response to an allegation, made or anticipated, that a child may be at risk.

THE FATHER’S APPLICATION

1. The father argued that the children are at unacceptable risk of emotional abuse whilst remaining in the mother’s primary care.  The father asserts that his observations of the mother is that she is becoming “more dysregulated and was having a direct and negative effect on the children”.

2. A focus of the father has been the extent of time that X has been absent from school.

3. The Affidavit of the Independent Children’s Lawyer (“ICL”) filed 25 June 2018 provides a convenient summary of X’s attendance records as follows:-

   (a)Term 1 2017            – 17.5 days absent, 4 days late and 2 days early departure;

   (b)Term 2 2017 – 11 days absent, 7 days late and 2 days early departure;

   (c)Term 3 2017 – 17.5 days absent, 10 days late;

   (d)Term 4 2017 – 11 days absent, 2 days late and 2 days early departure;

   (e)Term 1 2018 – 14 days absent, 9 days late and 2 days early departure;

   (f)Term 2 2018 – 11 days absent, 5 days late and 1 day early departure.

4. The father further alleges that on 24 July 2018 the mother attended at X’s school and removed the child over the teacher’s protestations.  X did not attend school for the balance of the week and for the following week.

5. The mother forwarded a doctor’s certificate from Dr C in support of her contention that the child was unwell and not able to attend school.

6. The father holds the steadfast view that the mother exhibits high levels of anxiety demonstrated by the mother becoming hyper-vigilant in respect of the children’s health.

7. Orders were made on 16 July 2018 requiring the mother to take all steps necessary on each school/kindergarten day to ensure the children attend school and kindergarten.  The order reflects that there is a grave concern about their lack of attendance as at the date of the order.

8. The concern of Judge Cole as to X’s absence from school due to perceived ill-health is highlighted in paragraph 6 of the order:-

   In the event that either said child is unwell and has a certificate for non-attendance at school or kindergarten the mother communicate this to the father forthwith NOTING that in the event it is the father’s time then the mother shall deliver up the said children to the father to enable him to care for the said children.

9. The father’s concern in respect of the mother’s continued attendance with the children upon Dr C is heightened by communication apparently forwarded by the mother to the Associate to Judge Cole on 31 July 2018 suggesting that X requires surgery and refers to ongoing medical appointments having been made.

10. The father has caused X’s medical records from the D Health to be produced.  He highlights a reference made on 4 October 2016 that the mother “wishes to bring to see Dr DS on Monday mornings – so she can assess children behaviour and document for legal issues and court case”.

11. Further notes reveal that there may be a connection between some of the appointments and the litigation between the parties.

12. The father’s present circumstances is that he is a manager and works Tuesday to Saturday starting at 9 am or 10 am until 6 pm or 8 pm.  He does not have work obligations on Sunday or Monday.

13. He currently lives with his partner Ms F. They rent a property near the father’s place of employment.  His partner’s three children aged 10, 14 and 15 live with them about 60 percent of the time.  The father’s partner is in part-time employment from 7 am to 2.30 pm Wednesday to Friday of each week.

MOTHER’S RESPONSE

1. The mother denies that she has failed to comply with orders enabling the children to spend time with the father.  She contends that since February 2018 there have only been two occasions when X did not spend time with the father and they are explained by ill-health, supported by a medical certificate.  Y has only missed one occasion with his father and this was explained by ill-health, supported by a medical certificate.

2. The mother denies that she has a dysfunctional relationship with the children’s school and in particular the school principal and class teacher.

3. The mother denies that she is hyper-vigilant in respect of the children’s health and does not concede that the alleged ill-health of the children is either a concoction or a device to keep the children out of school.

4. She contends that the children have a history of reoccurring upper-respiratory tract infections and other common illnesses affecting children.

5. She denies that she considers the children are at risk of sexual abuse by the father and wholly supports the children’s relationship with him.  She summarises her position in [18] of her Affidavit filed 16 October 2018 as follows:-

   … That I would continue to see the parenting of the children between the father and I as a vested interest between us wanting the best possible outcome.

6. The mother has reflected on the content of the family assessment report and is prepared to accept that X likes spending time with the father and has a good relationship with his partner.  The mother now considers the possibility that X may say different things to each of the parties as an act of loyalty.

7. She nonetheless considers that the father is less diligent in terms of the health needs of the children and does not resile from her observation that when the children return from their time with the father they are tired and hungry.

8. She has reflected on her engagement with the school and has now reconsidered her position.  She does not pursue in a change in the children’s school and accepts that the children are likely to benefit from the stability of future education pending the disposal of the proceedings.

9. The mother’s counsel submits that the matters raised by the father would not warrant a dramatic change in the current parenting arrangements given the mother’s challenge to the proposition that she has unnecessarily kept the children from school, that she is hyper-vigilant concerning the children’s health without good reason and that she does not support the children’s ongoing relationship with the father.  They are matters that are likely to be resolved at a trial when the evidence can be tested.

THE POSITION OF THE ICL

1. The ICL supports the father’s application to change the children’s care from the mother to the father.  The ICL considers that the mother cannot properly justify the level of absenteeism by X and does not accept that the children suffer from poor health as alleged by the mother.

2. The ICL relies upon her Affidavits of 25 May 2018 and 2 July 2018.

3. Her earlier affidavit annexes a brief psychological report of X by Ms G, clinical psychologist.  Ms G reports that X attended three appointments on 7 February 2018, 28 February 2018 and 14 March 2018. The mother and father each attended an appointment separately prior to the three appointments.

4. Ms G formed the opinion that X did not require further therapeutic intervention or counselling.  She observed that the child was happy to spend time with the father and enjoyed the interaction.  It is reported that X was reluctant to separate from her father and was able to question why she had previously been troubled or worried about spending time with her father when her current experience is that the visits are enjoyable.  She is happy to sleep at her father’s home and did not report anything that she did not like.  She considered that she was happy with the arrangements.

5. The father expressed his desire to increase the time that he was spending with the child and was supportive of the sessions, but it was noted that the mother presented as “annoyed/frustrated to be attending”.

6. In her later affidavit, the ICL refers to a telephone conference with the principal of X’s school.  The conference occurred at the request of the principal and the focus was the extent that X had not been attending school.

7. The concern of the principal is highlighted by a management plan that has been put in place whereby when X is absent from school the father is now contacted and advised.  He had not been receiving the school-based text messages routinely sent to parents when a child is absent.

8. The extent of X’s absenteeism prompted the school to request a doctor’s certificate.

9. Correspondence had been forwarded to the mother highlighting the principal’s concern that the number of absences for X may well affect her socialisation with other students and her academic advancement.

10. If the ICL has accurately reported the conversation with the school principal, it appears that the principal may not accept that the explanation for the child’s absenteeism is adequately explained by ill-health.

11. The principal and X’s class teacher observes that when the father brings X to school she is always early and is “full of smiles and was hugging dad”.  The observation of the mother’s presentation with the child is different.  X appears to resume her normal happy demeanour only after the mother has left.

12. No disclosures have been made by X about any matter of concern in relation to either of the parties.

13. Difficulty has resulted from a dispute with X’s class teacher arising out of an allegation that the mother has been assaulted by her.

FAMILY ASSESSMENT REPORT

1. Ms H (“family consultant”) prepared a report dated 24 August 2018.  She recommends that if the Court accepts the father’s position then the children should live with him and spend time with the mother from Thursday to Saturday of each week.

2. The family consultant was concerned that the mother should ensure the children attend school and early learning as required each day and that if deemed too unwell to attend then they be returned immediately to the father’s care and attend school at his discretion.

3. The family consultant records the mother’s position in respect of the children’s absenteeism from school as follows:-

   22.The mother argues that the children’s absenteeism from school was justified and required given they were overly fatigued and/or unwell after spending time in their father’s care.  She argues that the father failed to provide the children with a suitable routine, home environment (i.e. shared bedroom) and that the children were left in the care of others given he failed to put the children’s needs before his work.  She also argues that the children were scared in the care of these people, including the father’s partner’s step-father.

4. The mother denied the wrongdoing in respect of the incident in July 2018 which occurred at the father’s place of employment and in particular does not concede that she was following the father or his partner.

5. The parties readily engaged in the interview process.  The father did not present as “malicious, manipulative or controlling in any way. Rather, he impressed as child focused and flexible in his thinking.  He also presented with genuine concern for the children’s development and wellbeing in their mother’s care.”

6. The mother also presented as being “genuinely concerned about the children’s wellbeing in their father’s care and firm in her view on matters before the Court.  Of concern, she appeared to minimise this issue of the children’s poor attendance at school and kindy, and lack insight into what role she had in this.”

7. The father reported that in his view the mother had exposed the children to “high conflict at handovers, including swearing and yelling at him and his partner”. 

8. The mother denied any responsibility for the children’s exposure to conflict and considered that the father was manipulating and dishonest.

9. Whilst not pressed by the mother during the hearing, at the time of the family assessment the mother had claimed that the father was the perpetrator of family violence.  The father considered that the mother’s behaviour was “abusive, malicious and with the sole intent of undermining his relationship with the children”.

1. The mother denied that she had made any false allegation in respect of family violence and considered that the children were at risk in the father’s care due to his short temper.

2. Whilst the subject of denial by the mother, her report as summarised in [44] of the report clearly suggests that she held a concern that X may have been the subject of abuse either by the father or possibly by his associates.  The mother has resiled from any assertion that the child may have been the subject of sexual assault or abuse and she concedes that X is well protected when with the father.

3. The family consultant was impressed with X’s presentation.  She was observed to be an “endearing, happy, active, friendly, assertive and confident child.  She presented in neat, stylish and age appropriate attire, and spoke with a sense of pride and love of her nail polish, lip gloss and shiny ring which she explained was a gift from her father”.

4. Her relationship with her father is adequately described in [78]:-

   In discussion about [X’s] time in her father’s care she reported to “love staying there” and in particular playing with her dolls set.  She spoke with a level of excitement and pride about her backyard area, which was filled with her “birdies cubby house, trampoline and grass”.  She stated that she lived in her dad’s home with “[Ms F], [J], [K], [L], my brother and me”.  Plus, a cat, two dogs and two budgies.  She spoke positively of [Ms F], describing her to be “nice” and noted that she liked spending time with [Ms F], but “sometimes I miss daddy”.  X explained that [J], [K] and [L] were [Ms F’s] children, with [J] aged 15 years, [K] aged 10 years and [L] aged 14 years.  She stated that they were all nice but [L] was the nicest, then [J], then [K].  She added that she felt safe in her father’s care and had no worries when in her father’s care.

5. At [85] X reported that her time with her father and at his home was a positive experience.  She instinctively understood that her mother didn’t like her going to her father’s home but she did not know why.  She reported that “dad doesn’t say anything bad” about the mother. At [86] X expressed that she would “like the same amount of time with mum and dad.”

6. The family consultant was concerned as to what she considered to be the mother’s “irrational behaviour”.  She considered that the mother’s behaviour may well have been consistent with stalking and aggressive presentation in front of the children.

7. A concern of the family consultant was that if the Court supported the position of the father the children may well be at risk in the mother’s care.

8. The presentation of the children raised no concerns as to the relationship with their father or their safety.  He was considered to “present as a loving, caring and capable father who had genuine concerns about their wellbeing, an understanding of their needs and a capability to meet those needs.  He did not present as being malicious or self-focused in any way”.

9. Whilst the first consideration of the family report would appear to support the father’s orders, that must be tempered by the caveat that the mother does not concede exposing the children to unnecessary and inappropriate medical treatment, nor that she has interfered with the children’s attendance at school and early learning.

INTERIM PARENTING

1. In Marvel v Marvel [2010] FamCAFC 101 the Full Court considered the approach to be adopted when presented with contested evidence:-

   120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   …

   122.In SS & AH [2010] FamCAFC 13 the majority (Boland & Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

2. In Dieter & Dieter [2011] FamCAFC 82 the Court was concerned where the contested facts related to an assessment of risk and it was said at [61]:-

   … Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending upon the evidence that is before the court.

3. The Full Court in Goode & Goode (2006) FLC 93-286 considered the principles applicable to parenting at an interim proceeding now affirmed by the High Court in MRR v GR (2010) 240 CLR 461.

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the principles underlying Part VII of the Act.

5. Section 60CA requires that in deciding whether to make a particular parenting order the best interests of the children are the paramount consideration.

6. The Court is then obliged to consider the provisions of s 60CC as to the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3).

7. In particular, and relevant to the current proceedings, when applying considerations as set out in s 60CC(2), taking into account the s 60CC(2A), the Court is to give greater weight to the need to protect a child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

8. Section 61DA of the Act provides that when making a parenting order the Court must apply the presumption that is in the best interests of the child for the child’s parents to have equal shared parental responsibility but that the presumption does not apply where:-

   (a)There are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence;

   (b)In interim proceedings if the Court considered it would not be appropriate in the circumstances for the presumption to be applied when making the order; and

   (c)The Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

PARENTING CONSIDERATIONS

1. The father presses for an order that the children live with him and spend limited time with the mother.  In the alternative, the father seeks that the care of the children be shared equally between the parties.

2. Section 60CC(2) provides that:-

   The primary considerations are:

   (a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)The need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence.

3. There is a concession by the mother that it is in the interests of the children to have a meaningful relationship with the father.  She contends that she actively supports the relationship and believes that it is integral to their future development.  Importantly, the mother does not contend that the father presents as a risk to the children.  The observations of the family consultant would dispel any lingering doubt that the father’s home is an environment in which the children are scared, upset or worried.  The evidence of interaction between X and the family consultant resulted in a report that the child enjoys her time with the father, has a good relationship with the father’s partner and looks forward to spending time with her three children.  X’s happy description of her room, toys and household pets readily supports a finding that the children would benefit from an ongoing relationship with their father and their interests are likely to be advanced by them spending more time with him.

4. X has expressed a wish to spend equal time with each of the parties.  At this stage, I am not satisfied that the child’s wishes should be determinative of the interim proceedings.  That is not to suggest that significant weight should not be given to her views.  It strongly supports the likely benefit to the child of an enhanced relationship with the father promoted by an increase in time.  I do not consider that it supports the child transitioning into the father’s primary care or that the arrangements going forward should be equal time.

5. I am concerned to minimise any dramatic change to X’s environment in circumstances where the mother has foreshadowed her intention to challenge the evidence to be presented by the father and the ICL suggests the children may be at risk in her care.

6. I am not able to decide on the evidence whether the father’s allegation that X’s absenteeism from school is unacceptable and is as a result of the mother’s hyper-vigilance and anxiety.  What is clear is that it has been an issue for some time and was recognised in previous orders as a factor to be considered.  It may well be that there has been some abatement of the extent of the children’s absenteeism and the concession by the mother that the children should remain at their current school until further order may well be a positive indicator.

7. The report of the school principal is that when in the father’s care, X attends school 10 to 15 minutes early and presents with a positive outlook and happy disposition.

8. There may well be some added advantage to extending the time the children spend with their father to ensure that any disruption to their education is minimised.

9. The father’s employment is flexible and he is able to arrange his employment to ensure that the children can be taken to school and collected either by him or his partner.

10. There is no evidence to support any misgivings by the mother as to the continued and beneficial involvement of the father’s partner in his household or in his management of the children.

11. The ICL is supportive of the father’s relationship with the children and the ongoing involvement of his partner.

12. I propose to order that the parties have equal shared parental responsibility.  Whilst I accept that there is a high level of dysfunction and mistrust as between the parties, nonetheless and on an interim basis there is benefit to the children that the parties are required to communicate, at least in respect of important issues such as the children’s education and health.

13. Further evidence of significant absenteeism may promote a consideration of whether one party should have sole parental responsibility for the children’s health and education.

14. The mother concedes that the children should attend a different medical practitioner and there is good sense in orders being made that would ensure the father is actively involved with any health management issues.

15. I have carefully considered the circumstances in which the children find themselves and I am of the view that notwithstanding I propose to make an order for equal shared parental responsibility, the order as sought by the father for equal time is likely to result in heightened anxiety by the mother and an exacerbation of the extent to which the children are involved in the conflict.  Such an outcome would be detrimental to their best interests.

16. I propose to order that the children will spend five nights a fortnight with the father and live with the mother for the balance.  There is no reason why the parties should not each enjoy one half of the school holidays and I will make orders as sought by each of them in relation to the children remaining at their current school, orders that restrain each of the parties from attending the place of employment or the residence of the other party and provide for some better clarity to the mother’s ability to unilaterally seek medical attention for the children.

I certify that the preceding ninety one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 8 November 2018.

Associate: 

Date:  8 November 2018