Milton and Milton

[2012] FamCA 202

FAMILY COURT OF AUSTRALIA

MILTON & MILTON [2012] FamCA 202

FAMILY LAW - CHILDREN - Spend time with - Best interests - Where the parties have difficulty cooperating and communicating - Where the children have a poor relationship with the father - Where the children are adolescents

Family Law Act 1975 (Cth)

MRR v GR (2010) 240 CLR 461
Cowley v Mendoza FamCA 597; (2010) 42 Fam LR 436
Goode and Goode (2006) FLC 93-286
Bostoi & Bostoi [2010] FamCA 992

APPLICANT: Mr Milton

RESPONDENT: Ms Milton

INDEPENDENT CHILDREN’S LAWYER: Delaney Lawyers

FILE NUMBER: SYC 2737 of 2010

DATE DELIVERED: 4 April 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 28 & 29 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Thomas

SOLICITOR FOR THE APPLICANT: Clinch Long Letherbarrow Pty Limited

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: McDonnell Milne Toltz Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boyle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Delaney Lawyers

Orders

1. That all existing parenting Orders in relation to the children:

   B born on … September 1998; and

   C born on … August 1999,

   are discharged.

2. That the children live with the mother.

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

   3.1.   from the conclusion of school on Thursday, or such other night as may be agreed, until 8.00pm commencing on 5 April 2012 and each alternate Thursday or other agreed night thereafter;

   3.2.   from 9.00am until 5.00pm on 15 April 2012 and each alternate Sunday thereafter;

   3.3.   that the time referred to herein shall occur in the absence of Ms A and K for a period of not less than six (6) weeks from 5 April 2012.

4. That the parties attend therapy with Ms M, clinical psychologist, at … R Street, Suburb N, and ensure that the children and any other persons such as Ms A attend as requested by Ms M.

5. That the children move to overnight time with the father subject only to the agreement of the parties, noting that they acknowledge that in providing their agreement to any progression of time, they will follow and accept the recommendations of Ms M.

6. That in the event of a disagreement as to the recommendation of Ms M the parties shall request that she provide a written opinion as to any times extension or progression of time.

7. That it be noted the parties agree that it is not necessary for Ms M to provide reasons for any recommendation made to the parties and that there shall be no request or subpoena addressed to Ms M in respect of notes or reports other than as set out in Order 6 hereof.

8. That if during any period when the children are spending time with the father he is unable to be with them for a period exceeding two (2) hours at any one time, then he shall arrange for the children to return to the care of the mother for the period during which he is unavailable, subject to her availability and the children’s wishes.

9. That for the purpose of implementing these orders, the mother is to deliver the children to the father’s residence at the commencement of time with the father and he is to return them to the mother’s residence at the completion thereof, other than on those occasions when the times commence immediately following school.

10. That at the time of changeover arrangements pursuant to Order 9, both parties shall remain in their respective vehicles, unless invited by the other party to alight, and shall refrain from communicating with or gesturing to the other, save in civil terms or means and, in particular, both parties shall refrain from discussing issues relevant to changeover arrangements in the presence or hearing of the children.

11. That either party be at liberty to contact the children by telephone and/or other electronic means at all reasonable times when the children are with the other parent.

12. That each party keep the other informed in relation to all medical, dental or other health related treatments being undertaken by the children and the identity of the treating professionals.

13. That both parents shall authorise any treating practitioner and/or medical specialist to provide all information which either of them may reasonably require concerning the welfare of the children.

14. That each party keep the other informed as to all sporting, religious, cultural and educational events in which the children are involved from time to time.

15. That each party is at liberty to attend all events at the children’s school to which parents are invited.

16. That neither party is to denigrate or permit any other person to denigrate the other or members of their extended family within the presence or the hearing of the children.

17. That each party is to advise the other of any change in their residential address, telephone number and/or other means of electronic communication within twenty-four (24) hours of such a change.

18. That each party do all acts and things and sign all such documents necessary to ensure that:

    18.1. each party is at liberty to communicate directly with the children’s school teachers as to the children’s educational progress;

    18.2. each party shall do all things necessary to ensure that the school records show each parent as an emergency contact and to place both on the mailing list for copies of school reports and circulars as to upcoming events; and

    18.3. each party is at liberty to communicate with any treating health care professional of the children, without necessarily first referring to the other parent.

19. That each party pay or cause to be paid one half of the Independent Children’s Lawyer’s costs and disbursements of and incidental to these proceedings (including Counsel’s fees) in accordance with the prevailing scale for Independent Children’s Lawyers, as determined by the Legal Aid Commission of New South Wales.

20. It is noted that the common intention of the parties is that therapy will lead to a reintroduction of the following:

    20.1. alternate weekend contact between the children and the father from the conclusion of school on Friday to the commencement of school on Monday;

    20.2. holiday contact;

    20.3. better communication between the parties regarding matters involving the children; and

    20.4. that therapy shall continue until such time as Ms M recommends that it is no longer beneficial for the children.

21. That the mother use her best endeavours to obtain a contribution from Medicare to the cost of therapy with Ms M and that, if she is unable to do so, the father will meet the whole of Ms M’s costs.

22. Pursuant to s.65DA(2) and s.62B, 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 the parties adjust to comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2737 of 2010

Mr Milton

Applicant

And

Ms Milton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. Ms Milton and Mr Milton are the parents of two children:

   B born in September 1998 (13); and

   C born in August 1999 (12).

   The children have lived with the mother since the parties separated in 2002.  These proceedings concerned the time which they should spend with the father.

2. The applicant father is a 44 year old business proprietor who lives at Suburb W.  In July 2011 he married his current wife, Ms A, who has a 10 year old daughter named K.  She lives with the father and her mother, who are expecting a son in April 2012. 

3. The mother and the children also live at Suburb W, where both boys attend the local high school.  The mother is 41 years old and works in client services. 

4. By an Initiating Application filed on 4 May 2010 the father sought orders that the children live with each parent on a week about basis.  He filed an amended application on 6 February 2012 in which he sought, inter alia, that the boys live with him each alternate weekend; for half of the terms one, two and three school holidays and for two week blocks during the Christmas vacation.  The father sought orders that the children spend time with him on special occasions and requested a number of specific issue orders.

5. The mother sought that the father’s application be dismissed and that he pay her costs of the proceedings.  The Independent Children’s Lawyer (“ICL”) proposed that the children spend time with the father from 9.00am until 5.00pm each alternate Sunday and from the conclusion of school until 8.00pm each other Thursday.

6. It was agreed that the trial proceed by way of cross examination of the single expert, Dr Y, and submissions only.  It seemed to me that counsel were correct in their view that little or nothing would be gained by cross examination of the parents or the father’s wife.

BACKGROUND

1. The parties were married in December 1995 and separated in August 2002, when B was almost four and C only three years old.  Litigation commenced soon after the separation and, in February 2003, the Court made interim parenting orders.  Final Orders made on 1 April 2004 provided that the children have reasonable contact with the father, including alternate weekends; every other Thursday night; on special occasions and for half of all school holidays. 

2. The parties agreed that the children spent time with the father essentially in accordance with these orders for several years.  The mother alleged that she has always experienced difficulty in communicating with the father and that he was inflexible and uncooperative in the implementation of the orders.  She maintained that the boys complained for a number of years that the father left them with the paternal grandmother while he played golf on weekends.  The mother suggested the children began to resist spending time with the father during 2010 and have refused to go to his home since February 2011. 

3. According to the father, the children expressed a wish to spend more time with him after he moved to Suburb W in December 2009.  He recounted this conversation in his affidavit:

   “12.  In about the summer of 2009 the children and I had a conversation to the following effect:

   Myself: What do you think about spending time more time with me?  I only live two minutes away from your mum’s house and close to your school, sport and friends. 

   [B]: Yes, we will love that dad.

   Myself: Okay, I will try and sort something out with your mum and see what she says.”

4. According to his affidavit the father attempted to discuss with the mother the issue of the children’s time with him.  He deposed that this conversation occurred:

   “13.  Myself: [The mother’s first name], the boys have expressed to me that they want to spend more time with me, what do you think?

   [The mother]: No, that won’t be happening”

5. The father filed a contravention application on 8 April 2011.  The application was withdrawn and dismissed by consent on 29 February 2012.

6. According to the father B telephoned him on 11 February 2011 and said that he and C would not come to his home that weekend.  They have since spent no time with the father, nor communicated with him by telephone or email. 

APPROACH TO THESE PROCEEDINGS

1. In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the children who are the subject of the proceedings.  Part VII of the Family Law Act1975 (Cth) sets out a number of mandatory considerations which prescribe the pathway to that decision.

2. Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests.  Section 60CC(4) requires the court to consider also the extent to which each of the child’s parents have fulfilled, or failed to fulfil his or her responsibilities as a parent.

3. The court must have regard to the objects of Part VII, as set out in section 60B(1) and the principles underlying those objects, as set out in section 60B(2).  Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child’s right to enjoy his or her culture.

4. Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.  This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence.  The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

5. If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)).  If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5).  There is no temporal definition of “substantial and significant time”. 

6. In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:

   “[8] Sub-section (1) of s 65DAA is headed “Equal time” and provides:

   ‘If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.’

   Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:

   ‘(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.’

   Sub-section (3) explains what is meant by the phrase “substantial and significant time.”

   [9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”

   …

   [13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”

   …

   [15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”…

7. In Cowley v Mendoza FamCA 597; (2010) 42 Fam LR 436 Murphy J set out a “summary of principles”, drawing together the relevant legislation, the decision of the Full Court in Goode and Goode (2006) FLC 93-286 and the judgment of the High Court in MRR v GR.  I extend my gratitude to his Honour for this analysis, which has figured heavily in the approach which I now set out to my determination of these proceedings.

8. When a court makes or contemplates making a parenting order, it must:

   ·       apply the presumption of equal shared parental responsibility;

   ·       determine whether there is abuse of a child or family violence, which means that the presumption does not apply;

   ·       determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility;

   ·       if the presumption applies:

   ¨determine whether it is in the child’s best interests for there to be an order for equal time with each parent;

   ¨make findings as to the matters set out in section 65DAA(5) which are:

   Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)how far apart the parents live from each other; and

   (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)the impact that an arrangement of that kind would have on the child; and

   (e)such other matters as the court considers relevant.

   ¨as a result of this enquiry, make findings as to whether an equal time order is reasonably practicable;

   ¨if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order;

   ·       if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests.

THE EVIDENCE AND WITNESSES

1. The father relied on his affidavit sworn on 31 January 2012 and that of his wife, Ms A, of 10 February 2012.  The mother relied on her affidavit sworn on 18 January 2012.  As noted, it was agreed that there would be no cross examination of the parties or the father’s wife.  I had the benefit of a Child Responsive Program Memorandum dated 27 July 2010 prepared by Family Consultant Ms S.  The Family Consultant was not required for cross examination.  I also had the considerable assistance of a report dated 9 December 2011 by a single expert, Dr Y.  As noted, Dr Y gave oral evidence.

CONSIDERATION

1. There was no suggestion that the children are in need of protection from abuse, neglect, or exposure to family violence in the care of either parent.  They obviously have a meaningful relationship with the mother, who has been the primary carer for the whole of their lives.  In my view they would benefit from a reinstatement of a meaningful relationship with the father, who has a great deal to offer them.  He is a successful businessman, a person who enjoys sport and a father who wants to have a strong involvement in their lives.

2. Both boys have expressed strongly worded opposition to spending time with their father.  Their views were more moderate on 27 July 2010, when interviewed by the Family Consultant, who reported:

   [B] said that he loves his father and wants to spend time with him but no more than he does now.  [B] described the current arrangement as difficult because of the arrangement of every second Thursday.  He described Thursday as “a killer” due to the amount of organisation that needs to go into ensuring that he has the correct outfit for football training and school.  [B] would prefer not to stay at his father’s home on Thursday nights and to just spend time with him every second weekend. 

   [B] does not appear to have developed a positive relationship with [the father’s] partner or with her daughter at this stage.  He described feeling less important to his father since [Ms A] and [K] came into his father’s life.  [B] believes also that [Ms A] has said derogatory things about his mother and has sworn at his mother over the telephone.  This makes him feel angry and sad. 

   [B] is very aware of the conflict between his parents.  He describes feeling sad and distracted by the ongoing conflict.  He smiled and said it would be ‘great’ if they stopped ‘fighting’.  [B] thinks that he would be ‘more pleasant’ towards his father and towards [Ms A] and [K] if the fighting stopped.  [B] appears to see his father as the instigator of the conflict.”

3. In relation to C the Family Consultant reported:

   “[C] said that he loves his father and would like to continue spending time with him but would not like the amount of time that he spends with his father to increase.  [C] described feeling burdened with the arrangements every second Thursday night and would prefer not to stay at his father’s home during the week. 

   [C] is well aware of the conflict between his parents and between his mother and [Ms A].  He said that he feels ‘very sad’ when they fight. 

   [C] describes feeling displaced by [Ms A] and [K].  He feels that the time he spends with his father has been compromised and that he does not want to share his father with anyone other than his brother.  [C] indicated that he was happy for his father to have a partner but would like that aspect of his father’s life to be separate from his time with [the father].  He described [the father’s] new relationship as becoming serious very quickly and indicated that he had not had sufficient time to adjust to the implications i.e. new home, new step-sister, new parent figure etc.”

4. By the time of Dr Y’s interviews on 28 November 2011, the boys’ position had hardened and they expressed clear wishes against spending time with their father.  Dr Y reported in relation to B:

   “80.  He commented about his parents relationship:

   ‘My mums been very nice to my dad.  She tried to make this work for us.  Trying to solve a way for us to get along.  She helped by making us go to dads, to try and help the relationship between me and my brother and my dad.  But after a weekend we didn’t want to see him.  It wasn’t very nice for us there.  He is more with his wife and her kid.  I don’t want to go at all.  I don’t like his wife or his new daughter.  They’re very rude to my mum.  They call her rude names, like “bitches, sluts and low life breed”.  Both of them.  Dad doesn’t spend much time with us when he is with us.  He goes on Sundays for the whole day to play golf, from 6.30am until 3 or 4pm.  He’d ask his mum to babysit us and when he did come home he was just too tired.’”

5. With regard to C, Dr Y reported:

   “70.  [C]  continued:

   ‘It was all normal, with court orders every second weekend, until he started a relationship with [Ms A].  I don’t want to see my dad anymore.  She was always the top priority.  I felt left out.  He kept threatening mum, [B] and me about going to court.  He referred to his father’s statement: “Get lawyered up” and to his nasty emails and text messages. 

   71.    It had been evident to the boys that their mum was really worried.  They could see this on her face.  Although she had not wanted them to read the father’s abusive correspondence, she had allowed them to read it.  When they did, they had been shocked.  He acknowledged that ‘the threats’ related to their mum, rather than to them.  He was aware that dad had accused mum of leaving him in the car unattended at soccer training.  He described the details and denied that this had been a problem.  He acknowledged that he probably should not have read the father’s email and sms messages to the mother. 

   72.    [C] was clear in his wishes that he wanted to reside with his mother.  When asked about contact with his dad, he explained: ‘No.  But if I ever really wanted to, it would be up to me.  At this time, I don’t like what he’s doing, so no.’”

6. In his oral evidence Dr Y opined that both parents have involved the children in their dispute.  He identified that they have a stronger relationship with their mother, which means that they will be receptive to negativity towards their father.  In Dr Y’s view, the children had difficulty in finding “a sense of balance” and would have been very distressed by being exposed to his “rude communication” with their mother. 

7. It was most regrettable that the children read the father’s offensive, demeaning communications with the mother.  An example of the father’s communications was a message which he sent to the mother on 30 June 2009 which read:

   “You are a liar when I met you and you are a liar now.  I have proof and a witness.  Why don’t you find yourself another married man and behave like the evil whore you really are, you are a sad, ugly lowlife and you will lose custody of the boys when I get back.  I will call tonight and I will speak to the boys.  In time everyone will find out what kind of a filthy scumbag you really are.”

8. There can be no excuse for the father sending such abusive, offensive material to the mother.  On the other hand, she should have protected the boys from exposure to their father’s hostility and rudeness.

9. Dr Y was of a clear opinion that the children may have been influenced by the mother in their negativity towards and refusal to spend time with the father.  In his report he wrote:

   “118.      The children were seen to be strongly aligned with their mother.  Both boys and their mother highlighted the father’s longstanding alleged misdemeanours.  There was a remarkable consistency to these statements, suggestive of repeated previous discussions, if not actual coaching.  The boys acknowledged that these issues had been repeatedly discussed over the years with their mother and maternal extended family.  This had reinforced a negative view of their father, identifying him as selfish and uncommitted to the needs of the family.  The mother’s perception of the father as domineering and controlling had been clearly imparted to the children.  Their protest expressed regarding their contact with their father over the years had been reinforced by the mother and the close knit maternal extended family.  Similarly, any criticisms expressed by the father and stepmother with regard to the maternal extended family were experienced by the children as a hostile assault upon a key part of their identity.”

10. Dr Y also identified cultural differences between the parents as a source of ongoing conflict.  The mother is of Country 1 heritage and follows the Church 1 Christian faith.  The father is of Country 2 background and identified as a Church 2 Christian. 

11. Dr Y observed that the boys “took pot shots” at the father and spoke to him “in an inappropriately controlling manner”.  He noted that they stated to the father that they had given him “a full eight months to wake up to yourself” and discontinue the proceedings.  Dr Y reported that “they were insulted that he had gotten married and was expecting a child with their stepmother”.  To Dr Y’s observation, “the father responded to these statements in a calm and thoughtful manner”.

12. In his oral evidence, Dr Y said:

    “There will be a real problem in future if their relationship with their father does not get back on track.  We are talking about providing them with a role model for preserving core relationships.  It would be a problematic model if they are encouraged not to respect judicial and parental authority and feeling that they can do whatever they want”

13. In his oral evidence Dr Y made very clear and firm recommendations.  He said:

    “It will be a particularly important time when the new baby arrives – the father and his wife will be focussed on the baby so it is important for time for the father and the boys to be specified.  It should be ordered that there be time specified rather than the boys wishes being determinative.  There should be short periods leading to weekends.  Yes, family therapy would be advantageous.”

14. On behalf of the mother, it was suggested to Dr Y that flexibility on the part of the father will be a very important component to the successful introduction of a regime for the boys to spend time with him.  Dr Y opined, however, “if [there are doubts about the father’s flexibility] I would still advocate for orders provided that there is therapy.  I would see orders as providing a structure.  It is important for them to know that their clear wish to live with their mother is respected.”

15. In my view the father would be well advised to follow this advice of Dr Y: “[B] will be 14 this year, so it is also important to introduce flexibility.  It is possible to build goodwill if the father is flexible and the boys feel that he respects them.  If the father is inflexible, it is likely that there will be an absolute refusal.”

16. The orders of 1 April 2004 provided that “the father and the mother have joint responsibility for the long-term care, welfare and development of the children …”, which equates to equal shared parental responsibility in the current terminology.  The mother sought that the 2004 orders for the children to spend time with the father be discharged but she did not seek to disturb the order for joint responsibility.  The father sought an order that the parties have equal shared parental responsibility.

17. The presumption of equal shared parental responsibility applies unless there are reasonable grounds for the Court to believe that the children have been exposed to abuse or that equal shared parental responsibility would not be in their best interests.  There is no suggestion that the boys have been exposed to abuse while in the care of either parent.  The level of conflict between the parties seems to me to be the only contra-indicator to equal shared parental responsibility but they have now been bound by the 2004 orders for eight years.  I see no reason to disrupt an arrangement which has been in place for such a lengthy period and which would be a variation sought by neither parent nor the ICL.

18. The consequence is that I am required to consider whether it is in the children’s best interests, and reasonably practicable, that they spend equal time with each parent.  I am obliged to carry out this exercise regardless of the fact that neither parent, nor the ICL, sought such orders.

19. The children told the Family Consultant that they are opposed to a week-about arrangement.  They told Dr Y that they do not want to spend any time with the father, although he counselled against significant weight being placed on their stated views.  It is clear that the children would be angry about and unhappy with an equal time outcome to these proceedings.  In my view, it is almost inevitable that they would refuse to comply with any such regime.  In these circumstances, orders for equal time with each parent could hardly be considered to be in their best interests, nor reasonably practicable.

20. I am then required to go through the exercise of considering whether it is in the children’s best interests and reasonably practicable, that they spend substantial and significant time with each parent.  The legislation contains no temporal definition of “substantial and significant time” but does detail requirements for an arrangement to fulfil this definition.  It is necessary for:

    ·       a child to spend with a parent days which fall on weekends and holidays and also at other times

    ·       a parent is able to be involved in the child’s daily routine and events which are of particular significance to the child

    ·       a child is able to be involved in events which are of particular significance to a parent: see Bostoi & Bostoi [2010] FamCA 992.

21. It seems to me that the children would be just as antagonistic to orders which fulfil these criteria as would be the case with an equal time arrangement.  Any such orders would almost certainly be resisted by the boys, with highly disruptive consequences for them and each of their parents.  This outcome could hardly be considered to be in their best interests, nor reasonably practicable.

22. I found the evidence of Dr Y to be very persuasive and of great assistance.  I accept that it is of the essence for the boys’ relationship with their father to be repaired in the interest of their future development.  I agree that they need a male role model as they embark upon their high school education.  I accept that their sense of empowerment must be nullified before any further emotional damage flows to the boys.

23. I will make orders as proposed by the ICL, noting that Dr Y recommended family therapy.  Counsel for the father conceded that he has the financial capacity to meet the whole of the costs of such therapy.  The parties agreed, however, that he would pay all of the therapist’s fees only if the mother is unable to secure a Medicare contribution by way of a referral to a psychologist from her general practitioner.  I will make such an order.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 4 April 2012.

Associate: 

Date:  4 April 2012.