Mestronov and Mestronov

FAMILY COURT OF AUSTRALIA

MESTRONOV & MESTRONOV

[2007] FamCA 1627

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of children – Relevant principles – Independent children’s lawyer to liaise with children’s schools

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

D & D [2005] FamCA 356
R & R: Children's Wishes (2000) FLC 93-000
H & W (1995) FLC 92-598

APPLICANT:

Ms Mestronov

RESPONDENT:

Mr Mestronov

INDEPENDENT CHILDREN’S LAWYER:

T J Mulvany

FILE NUMBER:

MLF

1475

2003

DATE DELIVERED:

10 October 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

8 & 9 October 2007

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr T. Mulvany

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

TJ Mulvany & Co

Orders

That the Order made by me on 8 October 2007 be, and is hereby, a final order.
That in addition to the time which child S born … February 1998 spends with the mother pursuant to paragraph 9 of the Order made on 8 October 2007, the mother be entitled to spend time with S each alternate weekend during school term as follows:-
(a)From after school care at 5:30pm on Friday to the commencement of school on Monday;
(b)If the Monday of any such alternate weekend is a non-school day for S, the weekend time be extended to the commencement of school on Tuesday;
(c)The alternate weekend time commence on the first weekend following the commencement of each school term AND IT IS NOTED that the next such weekend commences on 12 October 2007;
(d)For the purpose of this Order, school terms are a reference to the holidays applicable to the school attended by S.
That the mother and Mr Mulvany, in his capacity as independent children’s lawyer for the children D born … February 1995 and S, do all acts and things necessary to attend upon the Principal of C School, Mr B (“the principal”) and, at the discretion of the Principal, the school counsellor, Ms L, for the purpose of the mother familiarising herself with the school and to ensure that the said principal and the school recognise the equivalency of the responsibilities of the mother with the responsibilities of the father in relation to the child D, D’s school life and D’s education generally and, in the sole discretion of Mr Mulvany, Mr Mulvany report back to the father and/or D the outcome of those discussions.
IT IS REQUESTED that the Director of Victoria Legal Aid grant an extension of assistance to the independent children’s lawyer which will enable him to comply with his obligations under of this Order.
That the mother and the father each do all acts and things necessary to ensure that their joint parental responsibility in matters relevant to D’s education be exercised with the express written consent of both of them in the case of:-
(a)Work experience for D;
(b)Overseas travel or excursions outside Australia for D;
(c)D undertaking a Certificate of Applied Learning as an alternative to VCE.
That for the purpose of implementation of the previous paragraph requiring that the consent of each parent be obtained in relation to certain matters:-
(a)Mr Mulvany be responsible for service of a sealed copy of this Order on the Principal of C School;
(b)The mother write to the said Principal in the first quarter of 2010 confirming that her consent is required in relation to work experience and overseas travel to be undertaken by D and him entering into any alternative educational course.
That Mr Mulvany, in his capacity as independent children’s lawyer for the children D and S, do all acts and things necessary to advise the Principal or other proper officer of Y Primary School (“the principal”) of:-
(a)the equivalency of the responsibilities of the mother with the responsibilities of the father in relation to the child S, S’ school life and S’ education generally;
(b)
the living and spending time arrangements pertaining to S during school terms pursuant to this Order and the Order made on 8 October

2007 -
and, in the sole discretion of Mr Mulvany, Mr Mulvany provide a copy of any correspondence sent to the school in this regard.
That for the avoidance of doubt, where a document or information is required by this Order or the Order made on 8 October 2007 to be sent to or served on a the Principal or proper officer of a school attended by either of the children:-
(a)It is sufficient for such service to be effected by prepaid post;
(b)The recipient may, in his or her absolute discretion, provide the document or information to any member of staff of the school;
(c)It is not required that any such information or documentation or the provision of it be discussed with or come to the attention of D and/or S.
That all exhibits and subpoenaed documents tendered in these proceedings be returned (to the party on whose behalf the exhibit was tendered) at the expiration of one calendar month unless an appeal is lodged.
That all extant applications be removed from the pending list of cases maintained by the Court.
That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1475 of 2003

MS MESTRONOV

Applicant

And

MR MESTRONOV

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

These proceedings concern the children D born in February 1995 and S born

in February 1998 and were heard in the less adversarial trial process with a final defended hearing conducted on 8 and 9 October 2007. On 10 October 2007 I pronounced final orders and said that I would deliver my reasons for decision subsequently. These are those reasons.
The applicant mother is Ms Mestronov and the respondent father is Mr Mestronov. Both parents represented themselves in these proceedings.
Pursuant to an order made on 14 June 2005, Mr Timothy Mulvany, solicitor was appointed as the independent children’s lawyer for D and S within the meaning of Division 10 of Part VII of the Act. The father has been critical of the involvement of Mr Mulvany and as recently as the week prior to the final hearing wrote a three page letter, addressed to me, in which he asserts that Mr Mulvany has favoured the mother in his dealings and indicated to him (the father) that the father could lose primary care of the children.
I will leave to one side the inappropriateness of the father endeavouring to communicate directly with the court. Fortunately, no harm was done in this case. I do wish to make it clear, however, that as the independent children’s lawyer, Mr Mulvany’s role is to form an independent view, based on available evidence, of what is in S and D’s best interests and then act in these proceedings in what he believes to be the best interests of the children.[1]

Mr Mulvany is not a legal representative retained by the children and he is not bound by any instructions from D & S.[2] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the court, to analyse documentary evidence, expert evidence and reports and to distil from all of that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings[3]. Finally the independent children’s lawyer should, if feasible, facilitate an agreed resolution of matters to the extent that it is in the best interests of the children (or either of them) to do so.[4]
[1] s 68LA(2) Family Law Act 1975 (Cth).
[2] s 68LA(4) Family Law Act 1975 (Cth).
[3] s 68LA(5)(d) Family Law Act 1975 (Cth).
[4] s 68LA(5)(e) Family Law Act 1975 (Cth).
Having now heard the case in its entirety, I reject the father’s criticism of the independent children’s lawyer. I am satisfied that the independent children’s lawyer discharged his responsibilities to the children and the court in a thorough and professional manner. I was significantly assisted by his participation. The interests of D and S have been well represented.
These parenting proceedings were initiated by the mother on 7 February 2003. Since the parties filed their applications the Family Law Act 1975 (Cth) (“the Act”) has been significantly amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”), the provisions of which came into operation on 1 July 2006. The procedural elements of the amending legislation, such as the less adversarial trial process, apply to this case by virtue of the parties having consented to same on 20 October 2006. The pre-trial hearing was before me on 24 November 2006.
Many of the matters which were in issue between the parents in October 2006 have been resolved. In discussion which occurred immediately prior to the trial, more issues were resolved. There are in fact only two matters for me to determine in these proceedings. They are:-
a)the duration of alternate weekend time to be spent by S with the mother; and
b)how the children’s schools are to be appraised of the fact that the mother has equivalent parental responsibility for the children notwithstanding that she does not spend any time with D and that the parents lack the ability to discuss anything about the children.
The balance of issues were agreed to by the parties and made in the terms of minutes prepared by the parties and sought by consent on 8 October 2007. Those orders provide as follows:-.
[1]. That henceforth the husband be referred to as the father and the wife be referred to as the mother and the head note in these proceedings be altered accordingly.
UPON THE COURT ACCEPTING THE UNDERTAKING of [the paternal uncle] given personally that he will hold the current passports of his nephew [D] born […] February 1995 and niece [S] born […] February 1998 strictly on the following conditions:-
[A]. I will not release either or both passports for the purposes of international travel or otherwise without receiving written consent from my brother [the father] and his former wife [the mother];
[B]. Otherwise pursuant to any order of a court exercising jurisdiction under the Family Law Act 1975.
I further undertake that I shall collect the passports from [D] and/or [S] or the person with whom they are travelling on return and continue to hold them pursuant to this undertaking -
IT IS FURTHER ORDERED BY CONSENT:
[2]. That all previous parenting orders be discharged.
[3]. That the father and the mother exercise shared parental responsibility for all long term issues relating to the children [D] born […] February 1995 (“[D]”) and [S] born […] February 1998 (“[S]”).
[4]. That without limiting the shared parental responsibility referred to in a paragraph 2 hereof the father is specifically directed to inform the mother in writing by prepaid post at such address as the mother shall from time to time be resident any decisions required to be made by both the father and the mother in relation to any health issues, educational issues and/or travelling matters relevant to either or both of [D] and [S] including but not limited to elective surgery and/or elective health treatment, any alteration of the schools attended by [D] and [S], any proposed interstate or international travel, school sponsored or otherwise, involving either [D] or [S], any work experience and/or part time employment obtained by or for [D].
[5]. That the father exercise sole day to day responsibility for the care, welfare and development of [D].
[6]. That each of the father and the mother exercise day to day parental responsibility for the care, welfare and development of [S] during the respective periods that [S] is living with the father and spending time with the mother.
[7]. That [D] and [S] live with the father.
[8]. That the mother spend time and communicate with [D] in accordance with any wishes expressed by [D] to the father and/or to the mother by [D] directly or to any servant and/or agent of [D] including but not limited to any educational professional, health professional and/or allied health professional who informs either the father or the mother of [D]’s wish to so spend time with the mother and for the purposes of this order the father is hereby directed that in the event of [D] expressing such a wish directly to the father or the father being informed of [D] expressing such a wish to any third party the father shall forthwith facilitate such spending of time and communication.
[9]. That [S] spend time and communicate with the mother:
a)During school term from 5.30pm on each Tuesday until 8.30am on each Wednesday in each school term and for the purposes of facilitating the midweek time provided for herein the mother collect [S] from after school care at 5.30pm on Tuesday evening and deliver [S] to before school care at 8.30am on Wednesday morning and the mother be solely responsible for the cost of after school and before school care and further that the mother ensure that [S] completes all homework tasks which she takes with her to the mother’s home on a Tuesday.
b)For one half of each term school vacations, and any Easter period not forming part of the first term school vacation by written agreement between the father and the mother and failing agreement to be the first half commencing 9:00am on the day following cessation of term.
c) For fifteen consecutive days (fourteen nights) during the long summer vacation of [S] commencing at 10am on 26th of December in each year.
d) In 2007 and each alternate year thereafter from 12 noon Christmas Day until 10am Boxing Day or the commencement of any time to be spent by [S] with the mother pursuant to paragraph 8(c) of this Order.
e) In 2008 and each alternate year thereafter from 4.00pm Christmas Eve until 12 noon Christmas Day.
f) Each Mother’s Day from 6.00pm on the eve of Mother’s Day until 6.00pm Mother’s Day.
g) Any time to be spent by [S] with the mother on the weekend of Father’s Day shall cease at 6pm on the Saturday of that weekend.
h) Such further or other times as the father and the mother shall by exchange of correspondence agree.
[10]. The father and the mother be are hereby restrained from altering his or her place of principal private residence outside of a radius of 30 kilometres of his existing address without furnishing to the other not less than 120 days notice in writing of his or her intention to relocate including in such notice the following details:
a) His or her proposed new address.
b) Any proposals of the father for alteration of schools attended by either [D] or [S].
c) Any proposals for any variations to these orders.
d) Details of the general amenities at such household and of any persons other than the father, [D] and [S] that the father intends to reside at the home.
however in the event that the parent proposing to change address is residing in rented premises then the period of prior notice is reduced to 40 days.
[11]. The father and the mother shall ensure that each informs the other in writing of all their contact details including but not limited to residential addresses, and landline number and any mobile phone number.
[12]. Each of the father and the mother shall subject to all appropriate and reasonable parenting standards, ensure that:
a) [D] and [S] are able to telephone each of their parents at all reasonable times.
b) That [S] is able to receive telephone calls from the mother on one weekday each week and either a Saturday or a Sunday of a weekend during which [S] is not spending time with the mother and the mother do all acts and things necessary to ensure that [S] places a telephone call to the father for the purpose of speaking to the father on two (2) occasions during each week of all vacation periods.
c)The mother at her discretion facilitate telephone communication between [D] and [S] and [S] and the father if so requested by [S] during times that [S] is spending with the mother.
[13]. The mother shall be at liberty to request of the Principal or delegate of the Principal of any school or schools attended by either [D] or [S] to be provided independently of the father with any one or more of the following:
a) Copy reports of either child.
b) Copies of school newsletters, information sheets, invitations and like matters concerning either [D] or [S].
c) Without binding the said Principal or delegate, to request separate parent teacher interviews to that of the father
d) To make arrangements to receive school photographs.
[14]. Subject to any direction of the Principal or delegate of the Principal of any school attended by [D] or [S] and the Manager or like person in charge of any extra curricular activity each of the parents and any relative and/or partner of the parent shall be at liberty to attend any school function or extra curricular functions, regardless of whether [D] or [S] are present, to which parents are customarily invited to attend.
[15]. That the Independent Children’s Lawyer be at liberty to provide a copy of the report of [Ms W] dated 9 July 2007, a copy of this order and a copy of the Reasons for Judgement of Justice Bennett to the Principal of the schools attended by [D] and [S].
[16]. That during the time spent by [S] with the mother in the middle of the school week, the mother do all acts and things necessary to ensure that [S] does a reasonable proportion of homework, including assignments, as is set for her.
[17]. That the father advise the mother in writing and keep the mother advised in writing of all arrangements for tutoring for [S] and for the avoidance of doubt there is no restriction on the mother discussing [S]’ work and progress with the tutor and the father direct the tutor to cooperate with any such discussions.
[18]. That the appointment of the Independent Children’s Lawyer be discharged following compliance by him with any obligations imposed upon him by virtue of this Order.
[19]. That the father forthwith deposit the current passports for both children with his brother [the paternal uncle] who is to hold the passports pursuant to the terms of the undertaking given this day to the Court.
[20]. That following the discharge of the appointment of the Independent Children’s Lawyer the father for himself, his servants and agents be and is hereby restrained from communicating and/or attempting to communicate with the Independent Children’s Lawyer save and except for communication by prepaid post.
[21]. I DIRECT that the undertaking given by [the paternal uncle] and certified by Mr Mulvany, the independent children’s lawyer in his capacity as a solicitor, be marked exhibit “a” and remain on the Court file.
[22]. That the independent children’s lawyer be given leave to adduce evidence from the Principal of [C School] and to do so by telephone.
[23]. That the further hearing of this matter be adjourned until 10am tomorrow, Tuesday 9 October 2007.
[24]. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

Returning to the matters which do require determination, it was agreed that S spend each alternate weekend with the mother commencing from the conclusion of her school day on Friday. The parties cannot agree on whether that time ends at 6pm on Sunday or the commencement of school on Monday morning.
For the last 12 months or so the mother’s time with S has concluded on Monday morning when the mother drives her to Y Primary School.
The applicant mother’s position is that alternate weekend time conclude at the commencement of school on Monday or, if Monday is a non school day for S, the commencement of school on Tuesday. In relation to her involvement in the children’s education she seeks an opportunity to meet with the Principal of D’s school, Mr B of C School, together with the school counsellor and Mr Mulvany to make clear to the school that she wishes to remain involved in and informed of D’s progress at school notwithstanding that D refuses to spend time with her.
The respondent father proposes that the alternate weekend time between S and the mother conclude at 6pm on Sunday evening. In the event that Monday is a non school day, it should still conclude at 6pm on Sunday. I did not understand the father to oppose an arrangement whereby the mother and

Mr Mulvany would visit C School providing that D’s school day was not interrupted. Accordingly evidence in relation to the school issue was directed to ascertaining that the school was prepared to facilitate such a meeting.
The position of the independent children’s lawyer was that the alternate weekend time should conclude at 6pm on Sunday. He said that he would abide any orders that I made requiring him to attend with the mother at C School or indeed at S’ school or otherwise communicating with the educational institutions. Mr Mulvany did not mention the issue of funding to enable him to do so, however I do not propose that he make the attendance for no remuneration. By the time Mr Mulvany sees the school officers (if he has not already done so), these proceedings will be well and truly over. Notwithstanding, Mr Mulvany’s attendance will be in the nature of implementation of the orders and, I am satisfied, very much to the benefit of the children whose interests he has been appointed to represent.

Background

The father and the mother commenced cohabitation in November 1992 and married in October 1994. That marriage no longer subsists. As indicated D was born in February 1995 and S in February 1998.
On 1 January 2003 the parties separated when the mother left the former matrimonial home at Y and went to live with Mr H in Melbourne’s inner suburbs. Then she and Mr H resided in other areas of Melbourne’s inner suburbs and for the last month they have resided at her current address.
Initially the mother spent time with the children at the family home.
Proceedings were initiated by the mother on 7 February 2004. At that time she sought that the children reside with her each alternate weekend and for an extended period mid-week. The father sought that the children live with him and spend time with the mother each Tuesday from after school until 8pm. There was allowance for some hours on special days but no weekends or holidays.
Pursuant to various orders, the children have continued to live with the father. The mother has spent time with S regularly since separation. D has been opposed to spending any time with the mother since 2005 or earlier. Effectively, since 2005 the mother has not spent any significant time with D. This has been in spite of a number of orders framed so as to encourage him to do so. Some of those orders were made by me. None worked or brought about any significant improvement.
The mother no longer seeks orders entitling her to spend time with D. She says that she recognises that to do so is a hopeless cause, at this stage. She says, and I accept, that it would very likely be counter productive for the mother to press on with any proceedings relating to D. The independent children’s lawyer concurs with the mother’s assessment of the situation as it pertains to D as does Ms W. I accept that all initiatives that could have been taken by the mother to see D have been taken and that all have failed.

Evidence

Neither parent prepared or filed affidavit material in anticipation of the final hearing. They were only required to give oral evidence on the discrete issues that remained unresolved.
The applicant mother gave oral evidence and was cross examined.
The respondent father gave oral evidence and was cross examined.
Neither parent relied on the evidence of any other deponents although various documents were tendered and marked as exhibits. The father, for instance, relied on approximately 50 pages of references dating back to 2003 in relation to his fitness for employment, his character and observations by various people of his behaviour as a father. None of the referees were called to give evidence or to be cross examined. Looking through the references I was unable to identify material which was relevant to the limited matters which I am required to determine. Accordingly I advised the father early on in the proceedings that, whereas I would admit the material into evidence, I was unable to accord it much weight.
The independent children’s lawyer was given leave to adduce evidence from the Principal of C School, Mr B. There was no objection to that evidence being adduced by telephone.
In the course of this matter being prepared for trial, the Child Dispute Service of the Court provided three reports by Ms W, family consultant.
I treated Ms W as a witness of the Court and permitted the independent children’s lawyer to cross examine her. Ms W’s expertise was not in issue. Her reports are thorough and provide insight into the lives of the children and the capacities of the parents at the following intervals:-
a)In July 2004, about six months after separation, when D was nine years old and S was six years old[5];
b)In July 2005, about 18 months after separation, when D was ten years old and S was eight years old[6];
c)In June 2007 which is reasonably recent and which I regard as current[7].
[5] Family Report of Ms W dated 5 August 2004.
[6] Family Report of Ms W dated 15 August 2005.
[7] Family Report of Ms W dated 9 July 2007.
Ms W was cross examined. Her evidence was thoughtful, helpful to me and reflective of her considerable expertise of more than 20 years in this Court (cumulatively) as well as with other organisations concerned with child protection, child psychiatric care and marriage and family counselling. As will become apparent, I accord her opinion considerable weight.
The independent children’s lawyer also relied on a number of exhibits.

Witnesses

The mother is 36 years of age having been born in May 1971. She is employed as a representative and in the last financial year earned approximately $45,000. She resides at P with her partner Mr H. That residence is about 17 kilometres from S’ school at Y.
Mr H has been the mother’s partner since she departed the family home

5 years ago. He is a sales professional with two daughters, K aged 9 years and T aged 13 years. Mr H sees his daughters once a fortnight from Saturday afternoon until Monday morning and each Wednesday night until the commencement of school on Thursday. Mr H was not called as a witness in these proceedings. I infer that any evidence by Mr H would not have assisted the mother’s case.
The mother and Mr H reside in a four bedroom home which they rent. The mother’s evidence was that each of them do separate things with the children on the weekends. In the last holiday prior to the final hearing,

Mr H took his daughters to Tasmania without the mother and the mother took S on a separate holiday.
I observed her to have quiet and controlled demeanour. The independent children’s lawyer described the mother as a truthful witness, who delivered her evidence with an air of practicality balanced by a sense of resignation and loss at having been unable to secure any face to face time with D.
The assessment of the independent children’s lawyer of the mother as a truthful witness accords with my assessment of the mother.
The father was 42 years old at the time of the final hearing having been born in November 1964. He deposes that he is trying to establish his own business and last year had a taxable income of about $14,000. He has two friends who visit, M and a fellow called N but he and the children are the only occupants of the house which is the former matrimonial home.
The father was somewhat argumentative and unwilling or unable to listen to questions. My assessment was that he was anxious about giving evidence and

I am not critical of him to that extent, that is for being anxious. However, when asked questions by the mother, his demeanour was abrupt and he appeared extremely uncomfortable.
Some evidence which the father gave was incorrect. In particular as to the dates that he and the children had recently travelled to the United States of America for the wedding of one of his brothers. He insisted that they travelled from 5 to 21 September 2007 whereas the mother put to him that the trip was from 5 or 7 to 21 August 2007. I asked for the children’s passports. He said that they were held by his other brother in rural Victoria. He would not concede that the mother was correct. Eventually his brother, who was the groom, communicated from the body of the court that the wedding was in August 2007. The father did not retract his earlier evidence. His response was to say that the alternate weekends could conclude on Monday mornings’ “if that is what [the mother] wants”.
Had the husband been correct and the trip to America concluded on

21 September 2007
, he and the boys would only have arrived back from America within the last two to three weeks before the final hearing. It should have been easy enough for him to know whether he and the children arrived back in Australia 3 weeks ago or 7 weeks ago.
The independent children’s lawyer described the father’s evidence as indicative of impetuosity. He did not change his evidence. He was being cross examined by the mother who is softly spoken and demure. It would have been simple for him to say that he had been confused or was mistaken. Instead, he went straight to the issue of Sunday night as opposed to Monday morning and said that the mother could have it anyway she liked. I accept that the father was impetuous. My assessment of the father as a witness is that he also displayed rigidity and, I am satisfied, has a real inability to be able deal with the mother even in the controlled environment of the courtroom.
The father also gave evidence that the lives of the children and his own have been constantly disrupted by changes to orders of the Court and changes in arrangements. He testified that “there has been so much on in the last three months”. I asked the father to particularise what out-of-the-ordinary events had occurred since July 2007. The father’s evidence was that he had had to attend court. However, it transpired that he was mistaken and that he last attended court in March 2007 (the final hearing commenced on 8 October 2007). He could not think of anything else other than the trip to America which had been a pleasant experience for himself and the children.
As a witness the father was very easily rattled and unable to cope with the pressure of questions. I make allowance for the anxiety of giving evidence and for the father’s genuine (but misguided) perception that the independent children’s lawyer was against him. However, I doubt that the father’s rigidity and lack of perspective is confined to his presentation in court. His abrupt demeanour and inability to think things through and respond reasonably is,

I am satisfied, widespread and likely to manifest itself when anything arises to do with the mother or the failure of their marriage.
I should mention that, after the father’s cross examination was concluded and he had returned to sit at the bar table, he retracted any concession about S’ time with the mother concluding on Monday morning.
Mr B, school principal, gave evidence by telephone. He has no personal knowledge of D. D’s school counsellor is Ms L and she has had only limited contact with D. The form coordinator for D’s year is Mr J. There are 100 students and four classes in year 7.
Mr B gave evidence that he was happy to meet with the mother and Mr Mulvany and to involve the school counsellor in that meeting.
Mr B’s evidence was to the effect that work experience is a significant event in D’s life which occurs in Year 10, with arrangements being made in the first half of 2010. Otherwise, the school undertakes travel for some students to Japan and Italy. Other significant educational opportunities or events include a Certificate in Applied Learning which is offered as an alternative to VCE as well as the ability for the year 12 boys be educated with girls from the sister school in year 12.
I accept all of Mr B’s evidence.

Findings of fact

In assessing the evidence, I apply the balance of probabilities as the standard of proof. In the unreported decision of Justice Carmody in D & D [2005] FamCA 356 delivered in Brisbane on 11 May 2005, his Honour analysed comprehensively the ‘standard of proof’ applicable in family law proceedings and made the following observations:-
[140] The relevant test is found in s 140 of the Evidence Act, 1995 (Cth). Sub-section (1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities. Sub-section (2) introduces notions of weight and variability into the forensic process.
…
[145] Lord Nicholls discussed the relevant standard of proof to be applied in non-criminal proceedings in his judgment in Re: H & Ors[8] in the context of a wardship application. His Lordship relevantly stated:
"Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established".
[8] (1996) 1 All ER 1, 16.

Relevant law – parenting issues

These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to S and/or D,

I must regard the best interests of the child in respect of whom the order is sought as the paramount consideration.
Subject to the best interests of the child being the paramount consideration,

s 60B sets out the aims and principles of Part VII. The section provides the context within which the relevant best interests factors listed in s 60CC are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case. Where there are no countervailing factors or considerations, the s 60B objects and underlying principles may be decisive.
Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the children are met’ by:-
(a)      ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)      protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)      ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)      ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The objects may be regarded as the core values of the legislation. Sub-section 60B(1)(a) of the Act has particular relevance in these proceedings. It emphasises that the involvement of both parents in the child’s life should be meaningful as to its quality and to the maximum regularity and frequency permitted by the child’s best interests.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:-
(a)       children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)      children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)      parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)      parents should agree about the future parenting of their children; and
(e)      children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration.

Determining the child’s best interests

In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in

s 60CC of the Act. In the present case I have to consider the best interests of S vis a vis whether the time she spends with the mother each alternate weekend concludes on Sunday or on Monday and the best interests of D vis a vis the mother’s desire to be informed of his educational progress and to take as active a part in his academic future as she can.
The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:-
(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.
I interpret s 60CC(2)(a) of the Act as requiring an evaluation of the nature and quality of the relationship between the parent and child by reference to additional considerations. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of the child’s parents is going to be beneficial and of advantage to the child or children into the future.
In this case, all parties concede that the children have a meaningful relationship with the father. It is also conceded that it would be beneficial for each child to have a meaningful relationship with the mother. However, at this stage, it is not feasible for the mother and D to have such a relationship because D is steadfastly opposed to it and he has rejected the mother. The most that can be achieved at this stage is, as the independent children’s lawyer puts it, to “put in place safety nets and the mechanics so that hopefully one day the mother’s relationship with D will be meaningful.” It is in this respect that the independent children’s lawyer supports the mother having familiarity with and some input into D’s education notwithstanding that there is no personal interchange between them.

The independent children’s lawyer contends, and I accept, that S is emotionally burdened by the conflict between her parents and her brother and her mother to a degree which is unacceptable and unhealthy for her. Protection of the children from physical or psychological harm, abuse, neglect or family violence[9] has no significant bearing on this case, at the moment.
[9] The term, ‘abuse’ is narrowly defined in s 4 of the Act as ‘an assault, including a sexual assault, of the child’ or as the involvement of the child in a sexual activity by a person, where the child is used either directly or indirectly as a sexual object and where there is an unequal balance of power between the child and that person.

The additional considerations

The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. It is only necessary to consider those which are relevant to this case. Where an additional consideration is relevant it may either alone or cumulatively with other considerations outweigh the applicable primary considerations. I therefore propose to have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, securing for S and for D the benefit that may flow from having a meaningful relationship with both parents.
Finally, s 60CC(3)(m) of the Act requires me to take into account ‘any other fact or circumstance that the court thinks is relevant’. This ensures that the infinite variety of individual children’s circumstances can be addressed.[10]
[10] B and B: Family Law Reform Act (1997) FLC 92-755.

The views of the children

In determining what is in the child’s best interests the Court must consider, amongst other factors, any views[11] expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views. Previously there was a similar provision,[12] which required the Court to take into account the child’s ‘wishes’. There is significant jurisprudence from this Court in relation to children’s wishes which, as will become apparent,

I consider relevant and helpful in relation to the Court’s assessment of, and weight to be accorded to, children’s views in the context of s 60CC(3)(a) of the Act.
[11] s 60CC(3)(a) Family Law Act 1975 (Cth).
[12] The repealed s 68F(2) Family Law Act 1975 (Cth).
The Full Court of the Family Court considered children’s wishes in

R & R: Children's Wishes
(2000) FLC 93-000. The Court, there comprising Nicholson CJ, Finn and Guest JJ, cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H & W (1995) FLC 92-598 at 81,944:
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.
There is a distinction between the concept of children’s wishes and children’s views. ‘Views’ will capture a child’s perceptions, inclinations and feelings but not necessarily involve an aspiration or conclusion. ‘Wishes’ are the result of perceptions, inclinations and feelings coalescing into a specific desire or ambition in the child’s mind. The requirement to focus on the child’s views, as opposed to wishes, means that I may have regard to the child’s perceptions and inclinations without requiring the family consultant or independent children’s lawyer to make enquiries or elicit the child’s ultimate preference or wish.

I agree with the reference in the Revised Explanatory Memorandum[13] that consideration of the children’s views will:-
… allow for a decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live or spend time with.[14]
Consideration of a child’s views does not exclude consideration of a child’s wishes.
[13] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).
[14] Ibid paragraph 56.
Once a child's views are ascertained, the next step in interpretation and assessment of these views requires a balancing of the views against the applicable primary and additional considerations which are relevant to the child's welfare. This process was is described by the Full Court in R & R , in relation to children’s wishes, as follows:-
42. […] the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.
[…]
54. […] There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best interests.
I consider that in the discussion by the Full Court in R & R, reference to ‘wishes’ may be read interchangeably for ‘views’.
The court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[15] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer.[16]
[15] ss 60CD(2)(a), 62G(2) and 62G(3A) Family Law Act 1975 (Cth), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.
[16] ss 60CD(2)(b), 62G(2) and 68LA(5)(b) Family Law Act 1975 (Cth), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.
Ms W’s evidence was that D’s views and feelings have been accommodated by his mother’s discontinuance of her application for orders to spend time with him. On the other hand, Ms W found that S was not forthright in expressing a view and that, even if she had been, S’ views should not be accorded particular weight. Ms W’s evidence was that it would be contrary to S’ best interests to put her in a position where she, or either of her parents or her brother, could think that her views were or had been determinative. Ms W’s evidence was that S diplomatically refrained from expressing any preference to Ms W. She said that S expressed interest in all of the suggestions and that she is basically a child who wants to please everybody.
Ms W’s view was that it is very important that S’ views are not perceived by her as determining what happens. Ms W testified that S’ feelings need to be heard and “there is no doubt about that and her feelings are that she loves both mum and dad and that should be the simple sum of it”. Ms W’s concern was that early on in the proceedings in relation to D, too much emphasis had been given to his views and wishes that his views became elevated and determinative of the result in relation to him. Ms W is concerned that S not be placed in the same, untenable and inappropriate, situation. I accept Ms W’s evidence in that regard.

The nature of the children’s relationships

I consider the nature of the children’s relationship[17] with each of the parents and other persons inclusive of grandparents and other relatives.
[17] s 60CC(3)(b) Family Law Act 1975 (Cth).
There is no issue that the children have a close and loving relationship with the father. It is common ground that S has a strong relationship with the mother although not as her primary caregiver. She clearly has a close and loving relationship with the father. However, the relationships of the children are not without complications and negative aspects. Ms W’s evidence was that both children feel a huge sense of responsibility to do what they think is right for their parents. Her considered opinion is that D has resolved his responsibility by cutting the mother out if his life. He goes to the front door when the mother drives up, looks at her but does not talk to her and rebuffs any advance she makes towards him. Ms W says that D’s response is tragic but represents his only available coping mechanism at the moment. In relation to S, Ms W expresses the following opinion[18]:-
[43] [S], whilst there appears to be no other resolution to the issue of [D], aged 12, and his relationship with his mother at this point, than to step out of his life for now. Whilst the reasons that mother and son have come to this impasse are disputed, the reality that [D] has needed to exclude [the mother] from his life is expected to have major implications in regard to how he forms loving relationships in the future.
[18] Family Report of Ms W dated 9 July 2007, paragraph 43
It is conceded by all parties that S and D have a very close relationship. The father’s evidence is that D pines for his sister when she leaves the home and that S says that she misses D and the father. As indicated, the family consultant has observed the children on three occasions over the last three or four years. The father’s evidence is that S is as dependent on D as D is on her. That was not supported by Ms W’s observations which were:-
What I saw was [S] doing the comforting of [D], not the other way around. I have seen them on a number of occasions and it has always been [S] parenting [D] as I see it.
She is the more protective one. She perceives her role in the absence of her mother, I think as doing some of the mothering, she sees the mothering, a sexist term I realise, and I don’t mean it in that way but you [the husband] do a lot of the parenting and the nurturing but she sees that as part of her female role.
I accept Ms W’s assessment over the father’s assessment and do so by reason of her independence and expertise. Also because, on the basis of evidence which I will discuss below, I am satisfied that the father has no insight into how his attitudes impact on the children.
The father gave evidence that he reassures S “that we still love her and will be there for her”. This expression was used by the father on numerous occasions throughout the trial. His delivery left me with the distinct impression that, far from assuaging any anxiety S may feel about leaving her brother and father, the father’s expressions are likely to place an emotional burden on S and result in her feeling guilty about leaving the father and D. This is consistent with the evidence of Ms W to the effect that S is likely to feel as though she needs to compensate her brother and father for leaving them to spend time with the mother. That is a wholly inappropriate burden for such a young child.
Likewise, the father said numerous times during the trial that he “is there to pick up the pieces”. This strikes me as a turn of phrase which is likely to leave the children with a perception of themselves as damaged. I am satisfied that the children would perceive the father as having been broken by the failure of the marriage. The father gave evidence that he never referred to himself as being “there to pick up the pieces”. However, when I asked him to recall the words and phrases he used in a recent 45 minute talk to S, he could not recall what he said although it was a very important talk. I am unable to accept that the father does not say expressly, or at the very least imply, to the children that the mother shattered their life when she left in January 2004. The proceedings came before me for interim determinations in November 2006 and on 1 March 2007. The father presents as someone who has been wronged by the mother and whose efforts since separation have been directed to repairing the damage perpetrated by the mother since separation to the children and to himself.
The father and the independent children’s lawyer both seek that S’ time with the mother conclude on the Sunday evening of each alternate weekend. They say that a return to the father’s household on Sunday evening will enable S to discuss her weekend with D and the father and visa versa and that it is preferable that she do so then rather than have to wait until after the conclusion of her school day on Monday, when she and D and the father are weary from school and work and will have less time or inclination to “download” (the term used by Mr Mulvany).
I accept that S is likely to recount her weekend to the father and to D if she returns home on Sunday evening. However, I am not satisfied that this downloading process is necessarily one which will benefit S or that it is in her best interests for that to happen directly on a cessation of the time with her mother.
Under cross examination by the father, Ms W’s evidence was as follows:-
S finds it very hard to cope either way [whether it is Sunday or Monday that time with her mother concludes] I have said in my report

I find it hard to understand what the difference is between 2 and 3 nights for her or the mid week night.
To me it is still all about this little child saying “I find it so hard going backwards and forwards”. That’s my concern about the Sunday night too. In some ways she might benefit from seeing her brother or seeing her dad, knowing that they are all ok, they managed without her on the other hand if she can just slot in and go to school and unwind and return home she could be more relaxed.
As a counsellor which is my trade, we look at our feelings when we are involved in a situation, say look if I am feeling that way I wonder if the child is feeling that way. Having both parents question me and cross examine me I am very conscious that these parents both love their children and don’t want to upset them. I don’t have the right or wrong answer. If

I am feeling that way this is what your daughter and son are feeling. There is no simple answer to this I can’t give it to you. Your daughter can’t give it to you either. However, what she needs is for the strain taken off her by everyone.
I accept Ms W’s evidence. I am also satisfied that S feels pressure from all quarters. I note, and accept as sound, the observations and opinions of Ms W in her most recent report, expressed as follows[19]:-
[39] The pressures on [S] include her loyalty to her father, her brother’s reliance on her for emotional support, her mother’s need to have time with the only child who will see her, and the compromises involved in having to spend time with her mother’s partner and his children. Thus, it was not surprising when asked how she felt about current arrangements for seeing her mother, that [S] expressed ambivalence about the Tuesday nights. When offered a compromise, whereby she might still see her mother on each Tuesday night but not sleep over, or that she only does this once a fortnight, [S] expressed interest in both options. [S] indicated that she had difficulty sleeping at her mother’s house, however the Family Consultant was at a loss to understand how she coped with this on weekends, and school holidays, both of which she was happy to continue with, but found sleeping there more difficult midweek.
[40]. The Family Consultant finds it significant that despite the strength of opposition displayed to her mother by her father and brother, [S] continues to retain the relationship with her mother. The conclusion which must be drawn from this is, that despite criticisms about [the mother]’s parenting skills, [S]’ need to have an ongoing relationship with her supersedes all these pressures.
[19] Family Report of Ms W dated 9 July 2007, paragraphs 39 and 40
The independent children’s lawyer and the father each assert that concluding the alternate weekend time will allow the father’s household to better ready itself for the week ahead. Mr Mulvany submitted that, as primary care giver of the children, the father would benefit from being able to organise his week in a more orderly way which must be of indirect benefit to the children including S. I accept that an orderly household presents less stressors for children but in this case that comes with the consequence of S moving directly between her two homes. In this case, I am satisfied that concluding S’ time with the mother at the commencement of a school day affords S a physical and emotional buffer between her homes. It means that the mother and father do not have to come into contact with one another which is likely to be beneficial to S because of what I am satisfied is the inability of the father to deal with the mother on any level. Emotionally, I am satisfied that all members of the father’s household having the experiences of their weekend diluted by the events of work and school on Monday is a positive outcome. The willingness and ability of each parent to facilitate and encourage the children’s relationship with others.[20]
[20] s 60CC(3)(c) Family Law Act 1975 (Cth)
I am required to consider the ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent. It is also necessary for me to assess the extent to which each of the parents has, to date fulfilled or failed to fulfil their obligations or frustrated the other parent’s participation in this regard.[21]
[21] s 60CC(4) Family Law Act 1975 (Cth)
I am satisfied that the father lacks the ability to facilitate a close and continuing relationship between either of the children and the mother. I do not regard his capacity as wilful. In fact, I think he genuinely believes that he has tried to do so. I am satisfied that the father’s unresolved feelings toward the mother in relation to the breakdown of the marriage have crippled his ability to see that the children can and should have a relationship with the mother. He lacks insight into this dynamic with the consequence that there is very little prospect of a change for the better.
It is important that the children and the father recognise that the level of involvement which the mother has in D’s school life and the conclusion of alternate weekend time, which are provided for in the orders which I have pronounced, is something which is imposed on them and not negotiable. It is not a matter of choice.

The likely effect of any changes in the children’s circumstances[22]

[22] s 60CC(3)(d) Family Law Act 1975 (Cth)

In determining what is in the best interests of the child I am required to consider the likely effect of any change in the circumstances of the children particularly in relation to separation from their parents, other children, wider family including grandparents and other persons with whom the children have a relationship.
At the time of the final hearing, S was spending time with the mother each alternate weekend concluding at the commencement of school on Monday. The mother’s proposal is that the arrangement continue. The father and the independent children’s lawyer contend that the time should conclude on Sunday.
The father’s evidence is that D pines for his sister and visa versa. He contends that it is preferable for them to have less time apart. I do not accept the contention. D and S reside primarily together. It is a normal part of their emotional development that they be physically separated from one another from time to time. I am not satisfied that one extra night away from each other each fortnight will harm their relationship or the relationship between the father and S.
There is no evidence before me to the effect that there have been difficulties with the current arrangement. That said, this is not a case where I am prepared to accord any weight to the continuation of the status quo.

D will be aware that the mother has been to his school and met the headmaster and perhaps had a tour of the school. To the extent that that represents a change of circumstances for him, I am satisfied that it is a change for the better. I accept that, if matters were left to him, he would exclude his mother from his school life completely. However, I consider it is both appropriate and necessary that he knows that his mother is aware of his progress at school.

Practical difficulties and expense associated with contact[23]

[23] s 60CC(3)(e) Family Law Act 1975 (Cth)

I consider the practical difficulty and expense of S spending time with and communicating with the mother. The benefit of the time which S spends with the mother concluding on Monday is that S will not have to deal with any conflict between her father and D on the one hand and her mother on the other. The downside is that in each alternate week, S returns to her father’s home after school on Monday and then goes again to the mother’s home on Tuesday evening for an overnight stay. That makes for a disrupted week.
Weighing the advantage against the disadvantage, I find that there are more benefits for S in a continuation of the weekend time with her mother to include Sunday night than there is in her returning home on Sunday evening to start the school week from her father’s home.
I note that Mr Mulvany confirmed that he would speak to S’ school about her weekly schedule to ensure that the mother and child will have adequate notice of homework tasks that have to be completed or undertaken during S’ time with the mother.

Capacity of the parents to meet the children’s needs[24]

[24] s 60CC(3)(f) Family Law Act 1975 (Cth)

In determining what is in the best interests of the children, I need to consider the capacity of the parent or of any other person to provide for the needs of the children, including emotional and intellectual needs.
The father is well able to care for the physical needs of the children and has done an excellent job in that regard. His ability to provide for their emotional needs is another matter.
I consider the father’s inability to deal with the mother and his inability to permit the children to have a relationship with the mother to be a serious incapacity. Fortunately, S has been able to maintain a positive relationship with the mother. However, it is a relationship which must be supported or else it could disintegrate or become devalued in her eyes or be too much of a struggle to maintain, just as has occurred between D and the mother.

The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents[25]

[25] s 60CC(3)(i) Family Law Act 1975 (Cth)

I must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil his/her responsibilities as a parent. This factor includes the extent to which each parent has taken or failed to take the opportunity to spend time[26] with and communicate with[27] the child and to participate about major long term issues concerning child[28]. It includes the extent to which the parent has fulfilled or failed to fulfil his/her obligations to support the child financially[29] or otherwise maintain the child. It also includes the extent to which each parent has facilitated, failed to facilitate or frustrated the other parent’s participation in the children’s’ long term welfare[30] and the other parent communicating with the children[31] or spending time with the children.[32].
[26] s 60CC(4)(a)(ii) Family Law Act 1975 (Cth).
[27] s 60CC(4)(a)(iii) Family Law Act 1975 (Cth).
[28] s 60CC(4)(a)(i) Family Law Act 1975 (Cth).
[29] s 60CC(4)(c) Family Law Act 1975 (Cth).
[30] s 60CC(4)(b)(i) Family Law Act 1975 (Cth).
[31] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).
[32] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).
I am required, and do, have particular regard to events which have happened, and circumstances which have existed, since the parties separated.[33]
[33] s 60CC(4A) Family Law Act 1975 (Cth).
The mother has been criticised for not participating more in the school life of the children, in particular, attending concerts and special events. On one occasion she prioritised her work over attending a significant school event of S’. I am satisfied that no matter what the mother did the father and D would find fault with her. In the circumstances of this case, I am not critical of the extent to which the mother has involved herself in the lives of the children.
I am critical of the father’s inability to permit the mother to be involved in the children’s school life and his failure to consult or even inform her of school selection for D. Obtained by the independent children’s lawyer and in evidence before me[34] is a copy of the student information form completed by the father in support of D’s application for enrolment at C School. When asked to provide “any special information the school should be aware of”, the father wrote:-
When his mother walked out, she didn’t want the children, and she was quite mean to [D]. All attention was on our daughter. [D]’s doing really well now.
[34] Exhibit “ICL2”
A supplementary enrolment form which required “parent/guardian details” was completed to show details in relation to himself as to what language he speaks at home, what was his highest completed year of schooling, what was his highest completed qualification and his occupation but the column attributable to the mother was not completed.
The father’s evidence was that he did not intend to make any personal attack on the mother, he just wrote down what he thought was accurate. I do not accept that submission.
The father’s failure to discuss D’s education with the mother and his statements and omissions in exhibit “ICL1” reflect poorly him. That is, specifically as to the extent to which he has failed to facilitate the mother’s participation in the long term welfare[35] of D as well as generally. I am satisfied that he intended to portray the mother as having abandoned the children, having been unkind and unloving to D and then preferred one child over the other. I am satisfied that the father’s assertions have no factual basis and that he made the statements knowing them to be false but wanting to portray the mother in a poor light to the school. In doing so, he prioritised his own feelings towards the mother over D’s needs.

Any family violence involving the children or any member of the children’s family and family violence orders[36]

[35] s 60CC(4)(b)(i) Family Law Act 1975 (Cth).

[36] ss 60CC(3)(j) and (k) Family Law Act (Cth)

As noted above, the definition of family violence provided in s 4 of the Act is broad and may include threatened or actual violence toward a person, members of their family or their property.
Family violence is not a relevant consideration in this case.

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[37]

[37] s 60CC(3)(l) Family Law Act (Cth)

Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes.
Ideally courts should make parenting orders that minimise the prospects of future litigation. Litigation is costly in emotional and financial terms and may well have the effect of standing in the way of parties parenting children effectively. Parents and children are readily distracted by litigation.
Parents are at liberty to modify court orders by subsequently entering into parenting plans, which have the effect of varying existing orders.
I am satisfied that final orders are appropriate in this case.

Any other fact or circumstance the Court thinks relevant[38]

[38] s 60CC(3)(m) Family Law Act (Cth)

There are no other circumstances which I consider are relevant.

Parental responsibility

Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[39] In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[40] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
[39] s 61B Family Law Act 1975 (Cth).
[40] s 61DA(1) Family Law Act 1975 (Cth).
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[41] The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[42] and to ‘make a genuine effort to come to a joint decision about that issue’.[43] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared.
[41] s 65DAC(2) Family Law Act 1975 (Cth).
[42] s 65DAC(3)(a) Family Law Act 1975 (Cth).
[43] s 65DAC(3)(b) Family Law Act 1975 (Cth).
In this case, the parties have agreed on shared parental responsibility. However, it is in the best interests of both children the agreement it be reflected in deeds as well as words.
When this matter first came before me on 24 November 2006, I made various orders including the following order:-
(2) That Mr Mulvany in his capacity as independent children’s lawyer for the children [D] born […] February 1995 and [S] born […] February 1998 do all acts and things necessary to conduct discussions with the principal or other proper officer of [C School] (“the principal”) to ensure that the said principal and the school recognises the equivalency of the responsibilities of the mother with the responsibilities of the father in relation to the child [D], [D]’s school life and [D]’s education generally and, in the sole discretion of Mr Mulvany, Mr Mulvany report back to each of the parents the outcome of those discussions and confirmation that those discussions have taken place.
Mr Mulvany duly complied with that order. I also made orders at that time for D to spend some time with the mother and some other orders to ensure as far as practicable that D would cooperate. Those orders were:-
(3)That until further order the children spend time with the mother as follows:-
(a) From 10am to 3pm on 26 December 2006 for the purpose of the mother and the children visiting the cinema complex and surrounding areas within […] Shopping Centre;
(b) As may otherwise be agreed between the parties from time to time.
[…]
(5)That the mother spend time with [D] as follows:-
(a) From 12 noon to 2pm on 30 December 2006 and 20 January 2007 for the purpose of the mother and [D] attending […] at […] Shopping Centre;
(b) From 3pm to 6pm on Thursday 18 January 2007 for the purpose of the mother purchasing [D]’s school uniform as necessary for him to commence at [C School] at the start of the academic year 2007;
(c) As may otherwise be agreed between the parties from time to time.
(6)That the father not take any steps or do any things to otherwise procure a summer school uniform for [D].
(7)That the mother be solely responsible for and attend promptly to having all items which she purchases for [D] appropriately named tagged and available to be returned to [D] at the conclusion of the time provided in these orders for the two to spend together on 20 January 2007.
At the conclusion of these proceedings it will be apparent to the school and to D that the mother decided not to continue with her application to spend time with D. I am satisfied that it would be contrary to D’s best interests and not otherwise justified for D or his school to be under the misapprehension that the mother has no interest in him or that, notwithstanding the order for shared parental responsibility, it is really only the father who will have any input into D’s education. Accordingly, I have ordered that the independent children’s lawyer and the mother attend upon the Principal of C School for the purpose of explaining the situation to him.

Consideration of equal time or substantial and significant time with both parents

Sub-section 65DAA(1) of the Act provides that in certain circumstances,

I should consider equal shared parental responsibility for children. In this case, the legislative provisions are overtaken by the agreement of the parties. Likewise, any consideration of substantial and significant time with each parent.[44] That said, I am satisfied that my determination of this matter is consistent with and involvement by the mother in aspects of S’ daily routine[45].
[44] s 65DAA(2)(c) Family Law Act 1975 (Cth).
[45] s 65DAA(3)(b)(i) Family Law Act 1975 (Cth).

Conclusion

The most significant feature of this case is the father’s inability to move on from the failure of the marriage and his separation from the mother and my satisfaction that it is in S’ best interests to be protected from that dynamic to the extent that it is possible to do so.
For the above reasons, I made the orders set out at the commencement of this judgement.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date: 29 January 2008

‘Family violence’, however, is given a broader definition as actual or threatened conduct toward another person, their family or their property, which causes reasonable fear or apprehension for their safety and wellbeing. A notation to the definition in the legislation adds that the standard for such reasonable fear or apprehension is that of the reasonable person in those same circumstances. ‘Neglect’ is not defined in the Act.

[2007] FamCA 1627

10 October 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Appeal

Remedies

Procedural Fairness