Narracott and Nave - [2012] FMCAfam 24

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NARRACOTT & NAVE

[2012] FMCAfam 24

FAMILY LAW – Contested parenting proposals – three children – mother alleges father’s parenting style very different to hers and she has routine in her household whereas the father does not – evidence of father’s flexibility and different parenting approach also having strengths – children’s wishes – father’s different approach to achieving some goals not seen as a barrier to shared parenting – parent’s have largely co-operated with each other in parenting since Orders were made and have worked together on medical issues for a son with ADHD – each style has strength – together share same outcomes for children and provide competent parenting.

Family Law Act 1975, Part VII, ss.60 CC, 61DA, 65DAA, 79(4), 75(2)

Mazorski & Albright [2007] FamCA 520
MRR v GR [2010] HCA 4 3 March 2010

Applicant:

MS NARRACOTT

Respondent:

MR NAVE

File Number:

CSC 256 of 2009

Judgment of:

Willis FM

Hearing dates:

16 May 2011, 17 May 2011, 18 May 2011

Date of Last Submission:

18 May 2011

Delivered at:

Cairns

Delivered on:

25 January 2012

REPRESENTATION

Solicitors for the Applicant:

Self represented litigant

Solicitors for the Respondent:

Self represented litigant

Counsel for the Independent Children’s Lawyer:

Ms Benson

Independent Children’s Lawyer:

Ms Patricia Cope as town agent for Ms Gray

ORDERS

That the Mother and the Father have equal shared parental responsibility for the children of the relationship namely X born (omitted) 2002, Y born (omitted) 2004 and Z born (omitted) 2007 (“the children”)
That without limiting parental responsibility of either parent herein, each parent shall keep the other parent informed of and shall promptly consult with the other with respect to any significant parenting issue affecting the said children. For the purpose of these orders a parenting issue is:
(a)Any medical or health matter concerning the said children and forthwith in the event of any medical or other emergency involving the said children;
(b)Any medical or health issue affecting either parent which may affect the ability of that parent to care for the said children while with him/ her;
(c)Matters relating to the education of the said children, including but not limited to, the choice of school and curriculum.
(d)Disciplinary matters other than those of a trivial nature;
(e)Matters concerning the social development and sporting activities of the said children;
(f)Any changes of domicile or contact telephone numbers including landline and mobile of either parent including the said children within 48 hours of any such change;
(g)Any intended change in a surname from which the said children are commonly known to that which appears on the said children’s birth certificates;
(h)Any matter regarding the said children in respect of which a parent should be informed or consulted with having regards to the provision of Part VII of the Family Law Act 1975 provided that these Orders are authority to all medical and educational expertise/ care providers involved with the said children from time to time to liaise with the parent in relation to the health, welfare and progress of the said children and each parent keep the other informed of the full name, address and contact telephone number of each such medical and education expert/ care provider of the said children from time to time.

Living Arrangements during the school term

That the children live with the Mother and Father on a week about basis from after school or day care Friday until before school or day care on the following Friday. This week about arrangement is to commence on Friday 17 February 2012.

School holidays

The children will spend one half of each holiday period with each parent including Christmas and Easter holidays. In 2012 the children will live with the father for the first half of the school holiday periods and with the mother in the second half. In 2013 the children will live with the father in the second half of the school holiday periods and with the mother in the first half (unless agreed otherwise). The parties will continue this rotation each year.

Special Days

The children are to spend time with each parent on each of the children’s birthdays and each of the parent’s birthdays. On a non-school day, the party whose week it is with the children will spend until 12:30 pm with the children at which time they will deliver the children to the other parent’s home. That parent is to then return the children at 7:00 pm. In the event the birthday falls on a school day, the non-resident parent will spend time with the children from after school until 6:30 pm.
In the event the children are not otherwise living with Mother on Mother’s Day and the Father on Father’s Day, the children will spend Father’s Day with the Father and Mother’s Day with the Mother commencing from 6:00 pm Saturday prior to the Sunday and concluding at the commencement of school on Monday.

Changeover

All changeovers shall occur to and from day care or school where possible and on non-school days all changeovers are to occur to and from (omitted) Park.

Telephone communication

The parties shall facilitate telephone contact between the children and the other parent at all reasonable times and no less than once per week.

Miscellaneous

The parties shall notify each other in writing within 7 days of any change of residential address, telephone land line, mobile telephone and email address.
The parties are restrained from denigrating the other parent in the presence or hearing the children and will remove the children from the presence or hearing of any other person denigrating the other parent.
In the event the parties are unable to resolve a dispute by consultation, the parents agree to attend counselling or dispute resolution with the Family Relationships Centre or other agreed agency.
The Father is to forthwith attend and complete a Triple P Parenting Course if he has not already done so at the time these Orders are issued.
Each parent is permitted to take the children interstate during their holiday times with the children on the condition that they advise the other parent of their intention to do so and the address where the children will be during the holidays not less than seven days prior to the holiday.
The Independent Children’s Lawyer is to organise for these Orders to be explained to the children in the presence of a Family Consultant.
Thereafter the Independent Children’s Lawyer is discharged.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CAIRNS

CSC 256 of 2009

MS NARRACOTT

Applicant

And

MR NAVE

Respondent

REASONS FOR JUDGMENT

Introduction

The parties in this matter are unable to agree about the living arrangements for the three children of their relationship, X born (omitted) 2002 (“X”), almost 9 years old at the time of trial, Y born (omitted) 2004 (“Y”), 7 years old at the time of trial and the youngest child Z born (omitted) 2007 (“Z”), 4 years old at the time of trial.
Each of the parties also have children from other relationships. The mother has a son A born 4 July 1995 (“A”). A’s father is Mr R., a person with whom the mother had a 4 ½ year relationship. At the time of her separation from Mr R., the mother says she was pregnant with A. Mr R. has had no contact with A although he has financially supported A through his Child Support Agency payments. At the time of separation with Mr Nave, A chose not to spend time with the father and his position in relation to this has been respected by both the mother and father.
The mother’s other son X was conceived with a person other than the father prior to the mother meeting the father, following a short relationship which ended when she was four months pregnant. The father met the mother when she was pregnant and he agreed to take on the unborn child as his own on the basis that his name was on the Birth Certificate. The mother and father have raised X together as their son and X has never met his biological father. The mother says that she does not know X’s fathers surname and has lost contact with his relatives. Surprisingly, after separation and at a time when the mother had decided to obtain advice from a counsellor as to informing X that the father was not in fact his biological father, the mother’s own mother took it upon herself to tell X that the father was not his biological father. As I said during the trial, I do not for one minute consider that X ought not to have been told of his true heritage, however I found it surprising that the mother’s own mother did this without reference to the mother. In any event, X is now aware that the father in this matter is not his father and it does not appear to have impacted on his relationship with the father at all in a negative way. X now tells people, as he did the Family Report Writer, that he has “two fathers.” A is in a similar position in that he does not know his biological father, though he is aware that he has a biological father who is not this father.
The father also has a son from an earlier relationship, B, who is now 23 years old and with whom he has no contact. The father says that his own parents pressured him to leave the relationship he was in with the mother of B, as he was 19 years old when his child was 6 months of age. The father provided Child Support according to a Family Court Order until B reached 16 years of age.
The parties met in December 2001 in Darwin while the mother was pregnant with X and began living together before X was born, marrying on (omitted) 2002. The mother, father and her two children, together with the two children of this relationship, lived together as a family.
According to the father, they had good jobs “in (omitted).” He says that they bought a small business but it wasn’t financially successful and the business was sold in 2006. The parties moved from Darwin to (omitted) in either December 2006 or January 2007. The father reports that his break up with the mother was amicable, though it occurred unexpectedly one day when he arrived home to find that his bags were packed and he was told to leave. The mother’s evidence is that this is how she brought her relationship with A’s father to an end.
After separation on 5 December 2007 the parties operated without any Orders on a loose arrangement of the father spending each alternate weekend with X and Y, and all the children living with the mother. At the time the parties separated, their youngest child Z was only 9 months old and arrangements were made for the father to commence seeing Z slowly and in a manner appropriate to her age.
Since their separation the parties have, to their credit, tried to work out their parenting arrangements between themselves. They have attended mediation without success in December 2008 and a Legal Aid Conference, also without success, in March 2009. Whilst the parties generally continued with their agreed arrangements, fractures started occurring when the father requested further time with the children and his requests were ignored by the mother. At that time the father was working as a (omitted) and spent significant time travelling. The father requested that he have alternate weekend time with the children, together with an afternoon during the week. Whilst the father was feeling that the mother was being most restrictive with his time with the children, the mother on the other hand says that she could not understand why the father started to become interested in spending time with the children given that he had shown no such interest, or limited interest, during the marriage.
The mother agreed for the children to spend Wednesday afternoons with the father to facilitate further time that the children had been requesting, however ultimately this arrangement did not continue. The mother says the father did not take Y to swimming as he had agreed to do and that the arrangement fell apart. In April 2009, matters came to a head when the father attended at the mother’s home and on his version of events, the children were excited and asked if they could go with him and he agreed. The mother on the other hand says that the father came and took the children without her consent, only leaving Z with her after an argument with the father.
On 29 April 2009 the mother commenced an Application in the Federal Magistrates Court seeking equal shared parental responsibility, that the children live with her and spend time with the father on a fortnightly basis. The mother raised concerns about the father’s accommodation for the children and his capacity to cope with all three children. It is her position that post separation the father had only limited parenting experience and that he did not have the ability to cope with both boys and their baby daughter Z. It is acknowledged between the parties that Y has behavioural difficulties that have been observed and assessed by a paediatrician and it is likely that Y has ADHD tendencies. The parties have agreed between themselves that the first approach to Y’s behavioural difficulties will be through diet and managing his behaviour, rather than opting at this stage for medications.
On 25 May 2009 Orders were made by consent for Y and X to live with the father each fortnight from Thursday until Monday and for Z to live with the father from 9am Saturday until 5pm Sunday each alternate week. All three children were to spend time with the father on Wednesday afternoons.
On 2 December 2009 a Family Report was prepared with a recommendation that the children live in a week on/week off arrangement. In early 2010, the parties changed their existing arrangements by agreement to an arrangement in which both boys lived with the father each alternate week from Friday until Wednesday and Z would live with the father each alternate weekend from Friday until Monday. Effectively, Z was having alternate weekends with the father and her brothers whilst X and Y spent a longer period of time with their father, namely from Friday until Wednesday.
At this time the children were expressing a wish to spend more time with their father. On the mother’s case, the father would present at her home and ask for the children in their presence for periods of time longer than she had been prepared to permit. After matters came to a head and the parties were engaged in what seemed to be a constant argument on this theme, the mother took advice from her own father who suggested that a compromise arrangement for the family might be that X and Y live with the father and Z live with the mother and that each weekend the children spend alternating with each parent. The mother accepted that proposal of her own father as a way forward in this matter. Accordingly, on 8 March 2010 Interim Orders were made by consent which provided for both X and Y to live with the father; Z to live with the mother; equal shared parental responsibility; each weekend the children were together from Friday through to Monday alternating between the father and mother’s home. The parties were to attend a post orders parenting program. This represented a significant change for the children as they had all been living with the mother.
In July 2010, an Order was made for the appointment on an Independent Children’s Lawyer following allegations of sexualised behaviour on the part of two of the children.
A second Family Report was released on 24 March 2011 just prior to the trial, recommending that Y live with the father in the current arrangement, but that X and Z live in a week about arrangement.
At the commencement of the trial, the mother sought Orders which she had altered by the conclusion of the trial. In the mother’s Case Outline[1], the mother sought Orders that she have care of the children during the school week so the children can be provided with what she termed as “appropriate educational guidance, be encouraged to wear footwear daily to protect their feet, to be encouraged and provided with healthy, nutritious food, to enable good brain function, growth and development, good behaviours and particularly for their educational requirements to concentrate and excel.”[2]
[1] Case Outline filed 12 May 2011.
[2] Paragraph 1, mother’s Case Outline filed 12 May 2011.
The mother’s position was that she be given an opportunity to provide the children with more routine, regular guidance for values and respect and to provide stable and adequate boundaries. Contained in the mother’s Case Outline is a document setting out the Orders she sought[3]. The mother sought Orders that the children live with the mother from 3pm Monday until 3pm Friday and that the children live with the father from 3pm Friday until 3pm Monday on three out of four weekends. On the fourth weekend of each cycle, the children were to spend a weekend with the mother, and other Orders as set out in the document marked Annexure B and amended during the trial. At the conclusion of the trial, the mother had moved away from that proposal and she sought Orders that the children live with her primarily, and spend time with their father. The mother adopted the position that the children might live with her for say nine days per fortnight, and live with the father for five days per fortnight. This position is primarily based on the mother’s belief that stability of one residence is positive for all of the children and her belief that the father’s parenting style does not provide the structure and discipline that she is able to provide.
[3] Annexure B, mother’s Case Outline filed 12 May 2011.
The father’s position at the commencement of the trial is as set out in his Case Outline, and that is that X and Y live with him and spend time with the mother every second weekend from 3pm until 9am Monday. In relation to Z, the father sought an Order that Z lives with the mother and spend every second weekend with him from 3pm until 9am Monday. The father sought an Order for sole parental responsibility for Y and equal shared parental responsibility in relation to X and Z. Other Orders sought by the father in relation to holidays are as set out in the father’s Case Outline.
At the conclusion of the trial, the father also had moved his position from that stated in his Case Outline to a position of seeking a week on/week off arrangement with the children.[4] The father, like the mother, had sensibly listened to all of the evidence and was prepared to move from his initial position based on recommendations of the Report Writer, Ms W., who also had changed her position during the course of the trial.
[4] Transcript, 18 May 2011, page 159, lines 35-45 and page 160, lines 0-5.
There is little disagreement between the parties in relation to holidays and handovers. Each of the parties has agreed that rather than split significant times such as Christmas and Easter, the children should alternate those significant periods from one year to the next with each of the parents. The parties are agreed that all handovers except holidays should occur to and from school and otherwise at the (omitted) in (omitted). Each of the parties seeks Orders on the basis that the children spend holidays and special occasions together.
At the conclusion of the Report Writer’s evidence, Ms W. recommended that the children spend week on/ week off with each of the parties. This was a shift from the recommendation in the second report and from Ms W.’s initial position at that time which was that Y should live primarily with the father and the other two children could live week on/week off with each of the parties.
At the time of the trial, the mother and father each had their own separate accommodation. The mother had purchased the former matrimonial home from the father and remained living there, and the father had accommodation in a rental house in (omitted). The father had given up (occupation omitted) and was working from Monday to Friday, 8am until 3pm as a (occupation omitted) for (omitted). The mother was also working as an (occupation omitted) for the (omitted) in (omitted). She was working 8:30am to 3:30pm daily and as of January 2011, she proposed working 8:30am to 4:30pm Monday to Thursday and having Friday off. Z attended day care while the mother worked. Neither party were in a new relationship.

Proposal of the Independent Children’s Lawyer

At the conclusion of the trial, the Independent Children’s Lawyer’s Counsel Ms Benson submitted that the current arrangement is not working because the boys are not seeing enough of their mother and they are not having substantial or significant time with the mother. Similarly, Z, who may be having appropriate time at the moment, would not have sufficient time to spend with her father on the current arrangements if it continued. Importantly, the Independent Children’s Lawyer considered that the children are not spending enough time together to be able to bond as a family unit. The Independent Children’s Lawyer did not support Orders that separated the children, and adopted the evidence of Ms W. that the difficulties in ages of children and younger siblings not being able to keep up with older siblings is a normal family situation where there are multiple children and needs to be dealt with. The suggestion that the problem be addressed by permanently separating the children was rejected by the Independent Children’s Lawyer as it was by Ms W..
As to the final Orders sought, Ms Benson submitted that if the Court considered that the children will adapt sufficiently to the very different households, which Ms Benson conceded is basically the children’s wish, that the Independent Children’s Lawyer would recommend that they spend as much time as they can with each other and live in an equal shared time arrangement. However, if I was troubled, as the Independent Children’s Lawyer is, that this may be too much of a hurdle for the children, then I would make Orders that the children live primarily with their mother and spend substantial and significant time with the father. The Independent Children’s Lawyer does not support a split week. The Independent Children’s Lawyer primary concern about an equal time arrangement was whether Y would cope better with that or whether he would cope best living primarily in one home. The Independent Children’s Lawyer submitted that the children Z and X would cope with an equal time arrangement subject to a graduated period of time for Z prior to her commencing school.
The Independent Children’s Lawyer was not opposed to an arrangement such as 9 days with the mother and 5 days with the father and noted that the mother appeared to have a good routine for the children, which the Independent Children’s Lawyer submitted was lacking in the father’s household. In the event that the Court considered a 9/4 or 9/5 arrangement, the Independent Children’s Lawyer submitted that the changeovers should occur at the beginning or end of the weekends, so as to reduce midweek changeovers. The Independent Children’s Lawyer also supported Orders that allow the parents to take the children interstate to visit their respective families to avoid any disputes about that in the future, subject to the appropriate notice being given and the time not affecting the other parent’s time unless agreed to. The Independent Children’s Lawyer also sought Orders that whatever arrangements were put in place by the Court, that the Independent Children’s Lawyer and Family Consultant explain the Orders to the children and further explain that the parents are bound by the Orders.

The Law

This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).
In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated:
“The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).
When deciding what parenting Orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DAA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds it would be not in the best interests of the child for it to apply.
If the presumption applies, and there is an Order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interest (s.65DAA(1)) and if no such Order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).’
In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) 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 only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal, significant and substantial time.

The hearing – Evidence

Each of the mother and father were self represented at the time of trial. They each gave evidence and were cross examined by the other, although mostly by the Independent Children’s Lawyer. The Family Report Writer, Ms W., gave evidence and was cross examined. The issue which had arisen in relation to the sexualised behaviour of the children had been dealt with by the time of trial by each of the parents. Similarly, the allegation about the mother’s computer containing “teen pornography” had been dealt with and it appeared as though the accessing of the alleged “teen pornography” had nothing to do with any of the children about whom I am making Orders.
Statements of fact in these reasons represent findings unless stated otherwise. I have had regard to the affidavit material, the exhibits and the oral evidence of each of the parties, together with their case outlines and submissions.
In this matter with two self represented parties, I have been helpfully assisted by the Independent Children’s Lawyer Ms Cope and by the Independent Children’s Lawyer’s Counsel, Ms Benson.

Witnesses

The Mother

The mother gave evidence and was cross examined, primarily by the Independent Children’s Lawyer but also by the father. I should say at the outset that each of the parties conducted themselves appropriately and with courtesy to the other, notwithstanding the difficulties involved in representing oneself and trying to cross examine one’s former spouse.
The mother was articulate and I had the impression that she had personally grown through the process of separation. She, to her credit, candidly admitted that she had learnt post separation to allow the father to be more involved with the children’s lives. She said she had been parenting for so long with four children and a hard working husband that she was not used to having him so involved. The mother’s background is that she had no assistance with parenting from the biological fathers of A or X. The mother now accepts that the times she was proposing for the children to spend with the father did not meet the children’s own expectations and that seeing their father each alternate weekend and only for a short period on Wednesdays did lead the children to request spontaneously to be spending more time with the father. Whilst the mother considered at the time that the father was undermining her authority by requesting more time with the children in the presence of the children and making his own arrangements directly with the children, my impression was that this was more about a lack of communication between the parties, a lack of understanding by the mother that this father was one who genuinely wanted to be involved with his children and some naivety on the father’s part
Whilst I accept that the father may have had limited parenting involvement during the relationship given the nature of his work, the father has now changed his occupation in order to allow him to be more involved. The shifting of the father’s attitude to his involvement with the children post separation seems to have presented the mother with some hurdles, however, I accept that she now genuinely wishes the children to have a close relationship with their father.
The mother appeared organised and a very purposeful parent. I was struck with the mother’s preparedness to acknowledge her mistakes in regard to trying to limit the children’s time with the father. I accept that her decision to allow the boys to live with the father and Z to live with her was taken in an endeavour to facilitate the boys’ wish to spend more time with the father and to take account of Z’s young age. I observed in the mother now a willingness to be more flexible about the arrangements and to openly accept that the father has an important role to play in the lives of these children.

The Father

The father impressed me as being a parent who has been on a learning curve post separation about the joy of spending time with his children. He impressed me as being a hardworking father who has previously been doing what he could when he was at home to help, though who was not the primary parent. He, like the mother, has made mistakes in relation to his conduct towards the mother. I consider that he too now has some insight that the way in which he initially approached spending more time with the children resulted in arguments with the mother in front of the children, and the children having to choose between their mother and their father. I consider that the father, who has a different parenting style to the mother, has much to offer his children. I accept that he has altered his work in order to be able to become a fully involved father and to experience not only the fun times with the children but also to become more adept at handling issues to do with their health, their care and their general day to day routine and commitments. Like the mother, I found the father to be a committed parent and a parent whose parenting skills will no doubt continue to increase in the years ahead. I had the impression the father and mother had learnt much about the family dynamics since separation.

Ms W.

Ms W. gave evidence and was cross examined. She provided two very helpful Family Reports. Whilst initial recommendations were made for first an equal time arrangement for all the children and then second, an arrangement where X and Z spent week on/week off and Y spent primarily his time with the father, Ms W. ultimately supported week on week off subject to Z starting at school age. It was clear to me that this matter was fairly finely balanced. Ms W. had been quite troubled about the dynamic between Y and X and part of the reason for her recommendation initially for Y to live primarily with the father was to give him some time away from X. Ms W. regards X as somewhat dominating over Y, so much so that it is to Y’s detriment. Ms W. was also quite concerned about how Y would cope moving from one parent to the other, noting that the parents have different parenting styles and that Y is settled with his father. Ms W. was also mindful that her proposal was effectively splitting up siblings and her evidence was that she had thought long and hard about her recommendations to effectively provide separate arrangements for Y as opposed to X and Z.
One of the advantages of the initial proposal put forward by Ms W. was that each boy would have more time with a parent by themselves and hopefully they would get more individual attention. Another issue was that in splitting the boys, Y would have the stability of living primarily in the same place most of the time. The domination by X about which Ms W. referred to, was acted out both in X speaking almost every time that Y was asked a question. Even when X was removed from the direct conversation, he still interrupted and spoke over Y during the Family Report interviews. Ms W. was somewhat concerned as she did not see either parent picking up on what was happening, though she acknowledged that the father did talk about it. Ms W. conceded that she did not recall actually seeing this behaviour when the father was present, though she certainly saw it at the mother’s home and there was no intervention by the mother. Ms W. acknowledged that she had not seen the reverse happening, which according to the father’s evidence, was that there are occasions when Y is picked on by X and other times when the father has to protect X from Y.
Ms W. conceded that both parents were good parents in respect to their being attuned to Y’s behavioural issues and difficulties. Both parents had taken on board the things that Dr W., the paediatrician, had told them back in 2009. She considered that both parents would take information from experts from time to time. Ms W. agreed that if each of the parents picked up on the issue of X dominating Y, that she would consider in those circumstances that a week about arrangement may work quite well. Ms W. conceded that generally, there are benefits to having the siblings all together, even if at times they are arguing. Ms W. said that whatever arrangements are in place, it is important for Y to have a set routine in both homes. She acknowledged the fact that Y starting school in 2009 may have likely contributed to him now settling down somewhat. She recommended family counselling.
Ms W. noted that there was a difference between living in a structured environment and being told what to do. This was in the context of the father having more flexibility about his parenting style than the mother, who Ms W. considered was more rigid as a parent. She did not consider that Y would respond well if he was told adamantly that he had to do things without any opportunity for flexibility. The assistance of Y having a teacher who was in tune with his learning difficulties and behaviour difficulties also was critical to his progression. At present, this is occurring. Ms W. considered that each of the parents needed to develop skills about managing Y, allowing flexibility but within a structured framework. Whilst noting that at the present time each of the parents were probably at opposite ends of the spectrum in terms of one being more strict and structured than the other, the father’s approach of being more flexible than the mother also has it’s advantages. Ms W. said that Y really needs to have both; nice structure, but a flow inside that nice structure.[5] Ms W. was impressed with the opportunities in the father’s home for the children’s creativity to thrive.
[5] Transcript, 17 May 2011, Page 123.
Ms W. provided commentary in relation to an issue which arose during the trial which was somewhat concerning. The father gave evidence that the boys considered that when Z spent time with him and the boys, the father found the dynamic of each of the boys and Z vying for his attention difficult. The father also said in some respects, that Z’s involvement with the boys in activities such as swimming hampered their own enjoyment. The father gave as an example that Z can’t swim out as far as the boys and that when Z comes with them, it makes it difficult for all of them. Similarly, he said Z is not able to kick a ball as far as the boys, and that at times she was an impediment to the sorts of activities that they were engaging in.
Ms W. gave evidence that the involvement of a sibling of younger years and the difficulties which arise from that is certainly not a reason to separate children at all and that those sorts of difficulties occur in all families, both intact and separated families. Ms W. said that the child who is the youngest is always playing catch up and can’t do things that everybody else can easily do. However, at some stage, she will be able to do those things. Ms W. said that a parent has to have parenting skills to be able to work out what activities are appropriate, when they will happen and how they will happen and that these are the kinds of issues that she alluded to in her earlier evidence when she noted that the parties need to develop skills of management of the children. Those skills are very, very important and that each of the parties need to do things with the children that cater for their different developmental ages.
I accept Ms W.’s observations and consider that the difficulties that were encountered when Z was not able to participate equally in the activities as an example of the father’s inexperience and naivety in parenting and his emerging parenting skills. As I have said elsewhere in these reasons, it is my view that the father is still developing his parenting skills but he has made significant inroads since the time that that boys have been living with him. A Triple P Parenting Course would assist the father to further those skills.
Another issue which Ms W. gave evidence about was the tendency of the father to be reluctant to say “no” to the children. The father has given evidence that, in his view, the mother said “no” too often, and in particular, he referred to the mother’s refusal to allow the children to spend more time with him. The father’s parenting has been affected by what he perceives as the mother being too harsh in her parenting. His account of the mother’s behaviour is supported to some extent by the comments made by the children about the mother. As a general concept however, Ms W. gave evidence that it is not unusual for parents to find difficulty saying “no” to children and it is often done as was probably the case with the father where a parent is afraid of losing the love of their children. Ms W. considered that learning to say “no” would be something that the father needs to be able to do. Ms W. considered that lots of parents have extreme trouble telling their children “no” and the father was typical in that respect.[6]
[6] Transcript, 17 May 2011, Page 128, lines 5-10.
Ms W. said that children in fact respond to being given direction by their parents and that their parents need to be the authority figure, and in doing so, that provides a sense of safety and security if children know that an adult will stay firm in their decision making. Ms W. explained the long term negative consequences for children if this does not occur.
Ms W. considered that the father’s initial proposal of the children living with him and seeing their mother on alternate weekends as insufficient to enable a meaningful relationship between the children and their mother. She considered the alternative of the children spending time with the father only on weekends as initially proposed by the mother and spending most of their time with the mother as not being a relationship which allowed for enough contact between the children and the father. The father himself agreed that the current arrangement where the boys saw their mother only on weekends was not an arrangement which best promoted the children’s relationship with the mother and likewise that Z does not spend enough time with him and the boys. In relation to the youngest child Z, Ms W. considered that once Z started Prep in 2012 she would be quite confident that as a very resilient child, she would be able to cope with week on/week off.[7] I accept Ms W.’s views.

S 60CC(2) The primary considerations are:

[7] Transcript, 17 May 2011, Page 131, lines 0-5.

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

The choice in this matter is between an order in which the children live primarily with the mother and for the boys, considerably less time with the father, namely 5 nights per fortnight or, on the father’s final proposal, the children spend equal time in each of the households. In my view the advantages and disadvantages of the mother’s primary proposal and that of the father are finely balanced. The children X and Y have been living primarily with the father since March 2010 and there are aspects of their behaviour which the mother contends are falling behind. The mother contends that children’s table manners are not to the standard that she would wish and that they have been somewhat disrespectful towards her. Whatever arrangement that the Court puts in place, I would expect each of the parties to address the children being disrespectful to either parent and to issues that are important to either of the parents such as table manners and general courtesy.
Whilst the mother says that she is the disciplinarian of these children, I do not underestimate the strengths of the father in terms of his parenting capacity which I consider he is adapting to as time progresses. Having the ability to keep up a good relationship with the children, interact with them and provide them with experiences unique to the father is also a strength. In my view it will be important into the future for both the boys, X and Y, to maintain a good and close relationship with their father including the physicality of the father’s relationship with the boys. This was commented on by the family report writer who noted the rough and tumble play that was instigated between the boys and the father at the father’s home.
The children’s wishes are also noted.

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

The second primary consideration does not require discussion in this case.
I will now turn to the relevant section 60CC(3) matters.

60CC(3)Additional considerations are:

S60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

In this matter I have the benefit of an independent Family Report prepared by Ms W. who has had the opportunity to interview the children on two occasions. Ms W. has experience not only as a Family Report Writer but also as a guidance officer with the Education Department and as a former Primary School teacher of some 20 years experience. In this particular matter, the observations made about the difficulties with Y’s behaviours have been very helpful. At the time of the first interviews in December 2009, the children were described in the report, though there was not much emphasis on their views as at the time. Z was only 2 years and 8 months, Y was aged 5 years and 7 months, X was aged 7 ½ and in Grade 2. X noted in his interview on talking about his family “I don’t get on with Y. He is very annoying.”[8]
[8] Paragraph 95, first Family Report.
When Y was spoken to, it was apparent to the Report Writer that he is a boy who was having difficulty managing his emotions and having difficulty with his speech. He did state that “my Mummy is always yelling at A and me about being naughty” and “I like getting cuddles and I don’t like X.”[9]
[9] Paragraph 85, first Family Report.
At the time of separation X and Y were requesting and wanting to spend more time with their father than the mother had been permitting. The mother accepts that this is so. Y told Ms W. that he wishes to spend more time with his father and X has stated that he would like an equal time arrangement. Z is too young to really express a wish, however she is described as a robust and enthusiastic child who will adapt to an equal time arrangement. I have an impression that the children enjoy spending time with both of their parents and it is also clear to me that there have been family difficulties in the relationship between the siblings of X and Y and to some extent the mother’s older son A has been involved in the difficult dynamic, at times it seems siding with X against Y. Each of these sons have different fathers. All of the sons are at different age levels and Y has an ADHD condition or tendencies. I am not surprised that the children who have now been through a family breakup have been experiencing difficulties as between themselves. I have taken account of the children’s wishes and noted each of their ages.

S 60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relatives of the child)

The mother has been the primary carer of the children during the period of their relationship. The father admits to working long hours and travelling in his work as a (occupation omitted). Comments have been made by A that the father spent a lot of time doing other things in the shed as opposed to spending time with them during the relationship, however it seems to me that the father is no different to many hardworking fathers who are the primary income earner for the family and who have much more limited time at home to spend with the children. The mother on the other hand, has not had prior parenting involvement with either A’s and X’s fathers. In my view she found it quite difficult to accept that this father who had had limited involvement with the children during the relationship now wished to have a more meaningful involvement after separation.
The father is well attuned to Y's condition as is the mother and as I have said, each of them are to be congratulated on their joint approach to his difficulties. I have no doubt that these are much loved children, that the children love and have a good bond with each of their parents. The theme in the Family Reports is that whilst the children are attached to both parents, that X and Y perceive their father to be “funner”.[10]
[10] Family Report, December 2009, paragraph 124.
The children told the Report Writer that their mother gets cross with them all the time or frequently and that she has a scheduled list of chores for them to do, whereas that is not expected of them at their father’s home and their father is fun.
As to the nature of the relationship between the brothers, as I have already noted there are three different fathers involved and Y has possible ADHD tendencies. I had the impression that the parents were attuned to the issue of X being somewhat dominating over Y, however each of them in the broader context did not appear to be overly concerned about that. I note that nonetheless, each of the mother and the father appeared be cognisant of the comments by Ms W. in relation to this issue needing to be kept in check by the parents.
X and A have known no other father other than this father. I consider that the sibling relationship is most important to all of these children, particularly in light of their parent’s separation and the absence of X’s father. Evidence was given of Z becoming upset at a time when both boys were heading off to spend time with their father and that she called out that she wanted to go too, as was referred to in Ms W.’s report.[11] The mother commented to Ms W. that when Z was crying and running around screaming that she wanted to go with her brothers, that she found the arrangements to be disruptive. I have no doubt as Z becomes older, she will fit in with the arrangements with her older brothers more easily and that in the long term, the preservation of the sibling bond is in the best interests of the children. Actually living together in the same household and going through the rituals of getting ready for school together, eating meals together and generally operating as a “family unit” is in my view, important to build and consolidate the sibling relationships. Older children can learn much from helping and living with younger siblings.
[11] Paragraph 43, Family Report 2 December 2009.
I consider that a permanent arrangement to separate the children is likely to impact negatively in the long term the strength of their sibling relationship. I also accept the evidence of Ms W. that making separate arrangements which exclude a particular child will likely lead to difficulties between the child and the parents and each of the children. Separating the children according to sex or age is not in their best interests in the long term.

S 60CC (3)(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

Post separation the mother was reluctant to allow the children to spend time with the father other than the times she considered appropriate. The mother accepts that she found difficulty in the children spending significant time with the father given what she perceived to be his lack of involvement during the relationship. I have no doubt that the mother’s attitude has been somewhat coloured by her experience with her two other sons, namely A and X, whose fathers have no involvement with them.
Post separation it also seems to me as though there were issues between the parents which have subsided as time has past. Ms W. noted the grief and loss associated with the breakdown of the relationship and the feelings of hostility which were flowing both ways between the mother and the father. The father gave evidence that he was trying to become involved with the children and was not one of the fathers who had abandoned the children, but the mother would not permit his involvement. No doubt the father’s desire to be an involved parent was coloured by his disappointment and his lack of parenting involvement with his son B. The mother gave evidence that when she acquiesced to the father’s request for the children to spend more time with him by agreeing that the two boys should live primarily with the father, that the father then started telling people around (omitted) that she had given up on her sons. I make no findings about these allegations, save to say that in my view, each of the mother and father are committed to these children and love them unconditionally. It seems to me that once the issue of the children spending more time with the father was resolved by way of the mother agreeing that the boys should live with the father and Z live with her, that she has come to understand the significant role of the father in the boys lives and also in the life of Z.
Since the Orders have been made by consent, the mother has been compliant. I consider that she showed very poor judgment in putting up a sign in her house so prominently which she knew and reluctantly admitted that it referred to the father. The sign was given to her by her own father reads “It’s better to have loved and lost than to live with a PSYCHO for the rest of your life.” Whilst I consider that the mother gave her evidence fairly openly for most of her testimony, I considered that she was evasive in admitting that she well knew that this sign applied to the father. The sign in my view is derogatory and I consider that the mother well knows this and that it ought not to be displayed anywhere that can be seen by the children. Overall, however, I am satisfied now that each of the mother and father have learned a lot in the time since separation and that each of them truly acknowledges and is prepared to encourage a relationship between the children and the other parent.
In relation to the father, criticisms can be made about him conducting himself in a way that he did at separation and after. Whether it was unintended and I consider that it was, his behaviour did undermine the mother’s authority and lead to argument in front of the children. The father effectively got the children onside and told them that they could stay with him and then presented to the mother as a united front with a concluded plan. I am critical of this behaviour. I am not sure that the father had the insight at the time to realise the harm that this causes in undermining the mother by failing to privately consult with her as one parent to the other rather than engaging the children in his plan and then presenting a fait accompli to the mother. Apart from this issue, which seems to have ceased and been addressed by their subsequent agreements, the father has been willing to promote the children’s relationship with the mother.

S 60CC (3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

During this trial it became apparent that one of the primary issues for consideration is the effect of any parenting arrangement upon the behaviour and coping mechanisms of Y. It seems to me that there are advantages and disadvantages in having Y operating on a separate arrangement to the other two siblings. Ms W. suggested that the advantages of all of the children remaining together outweigh the disadvantages, as I have referred to elsewhere. At present it seems to be agreed between the parties and it is certainly my view and that of the Independent Children’s Lawyer, that the current arrangement with the boys living separately to Z and seeing each other on the weekends is not the paramount position for these children. Each of the proposals put forward by the parties represents a change to the current arrangements.
On the mother’s future proposal, with the children living primarily with her and spending 5 days a fortnight with the father, I am left wondering whether Y, who is very attached to his father and wants to live with him will cope with spending less time with his father and most of his time with the mother. Ms W. considered that if each of the parents were attuned to Y’s needs and he had support at school that he would cope with a week on week off arrangement. Ms W.’s alternate and second position was that Y remain living primarily with the father because of his strong wishes to do so and his difficult and challenging behaviour which the father seemed to manage well. Ms W. was mindful of all of the changes that would occur and the different standards that would occur for Y in terms of parenting and rules, namely being a set of rules at his father’s, a different set of rules at his mother’s and a set of rules at school. She also considered though that if he received appropriate assistance at school, which he was, that the challenges would be reduced.
In terms of the mother’s proposal for the children to live primarily with her and spend only 5 days per fortnight with the father, it seems to me that this will be difficult for Y given his strong wishes, albeit, that he is aged 7. Y does not turn 8 until (omitted) 2012. His ADHD tendencies and challenging behaviours add to my concern regarding removing him from living primarily with his father for almost two years to live primarily with the mother. X has expressed a view to live week on/week off, and moving to live with his mother primarily at this point in time will no doubt be a significant change and totally contrary to his views in the past and currently. X is clearly a child with some influence with the sibling group. He wishes to have some one on one time with his mother and it is up to the mother to organise this, whatever living arrangements are ordered. The impression I had of X’s position in the family was that he was at times overlooked, not being the eldest, the youngest or a child with special needs. Living in an equal time arrangement between both his mother and father, both of whom he clearly loves, is in my view a positive step in enabling him to have a meaningful relationship with each parent.
In relation to Y, Dr T has provided an overview on 14 March 2011 which is attached to the second family report. It notes that the father has been through an elimination diet with the dietician in relation to Y and that Y has been in the father’s full-time care since March 2010 and has settled nicely into year 2. Dr W. notes that his behaviour has been better this year, but that of course is based on reports by the father though I do not disbelieve the father’s testimony. The father has the necessary time available to him to spend after school with the children on any parenting arrangement and likewise the mother intends to work, it seems perhaps a little later than the father each day and she is organising to have Fridays off. I consider it to be a significant hurdle for Y to cease living with his father and reduce the time from the current arrangement of full-time save for the alternate weekends to seeing his father 5 days per fortnight. I am troubled that this diminution in Y’s time with his father would have a negative effect on Y and unnecessarily restrict his physical time with his father with whom he has developed such a close relationship. Y is doing well enough at school given his difficulties. It is difficult to find any basis for reducing Y’s time with his father as significantly as suggested by the mother. The father’s parenting style of having the ability to be flexible can be less confrontational than the mother’s approach. Her rigidity and seemingly harsh approach at times has been commented on by the children and the father.
In regard to the effect of changes to the children’s circumstances, each of the orders finally proposed by the parties is more child focused and likely to engender a stronger sibling bond than the current arrangements.

S 60CC (3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

This factor is not an issue in this matter in as much as the parties live about a kilometre from each other and there is no difficulty or expense involved with handovers or the children maintaining a bond with the other parent.
The parties have agreed that all changeovers should occur at school and where that is not possible they should occur at the (omitted) in (omitted).

S 60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

At the commencement of this matter, the mother contended that she had a routine that would enable the children to attend school and improve their academic performances as the basis for having the children live with her. Criticisms levelled at the father from the mother relate to the father not having a routine. There really is no evidence of the father not having a routine. There is evidence of the father having a more relaxed or flexible attitude than the mother in respect to some parenting issues. An issue which took up probably a disproportionate amount of time in this matter was the issue of the children often not wearing shoes to school. The father had a number of reasons as to why the children did not take their school shoes with them to school on occasion or actually wear them to school every day, ranging from the shoes being lost to the children leaving them behind at the mother’s home. The father suggested that even when the children did wear their shoes to school, the school itself did not enforce the wearing of shoes and permitted the children to run around during school hours without their shoes. It seemed to some extent he was placing the responsibility for the children not wearing shoes at school upon the school, however I appreciate that the father cannot monitor what the children do with their shoes at school. The mother’s position was that the father was relaxed and somewhat careless in not ensuring that the children at least wore their school shoes to school every day. She cited examples of one child with a cut to his foot from having bare feet and complaining that he would not go to the toilet during the school day as he had to stand in the boys toilets with his bare feet in urine. Ms W. did not consider that this was a significant parenting issue and from her experience in schools, it was a health and safety issue for the school. The schools that she visited on the Tablelands as a guidance officer or pre-school teacher took all steps to enforce the wearing of shoes. Wearing of school shoes in tropical Far North Queensland is an ongoing issue for children and parents particularly during the wet season.

A more significant issue in relation to school in my view is the support that each of the children are getting at school, their actual attendance at school and the results of their academic and sporting year. The father has annexed to his material the latest report cards for each of X and Y. Whilst the mother says that the children’s schooling standards are deteriorating, I am not satisfied that that is so. A reading of the report cards from (omitted) State School in Semester 2, 2010 for X shows achievements as “sound” in English, mathematics, science, studies of society and environment, health and physical education, psychical activity, music and a “high” in the arts. X’s effort fluctuates between a B and a C. The overall comments as noted by the class teacher are as follows:
“X is mostly an enthusiastic and co-operative student who has completed most work to a satisfactory level. I feel he is capable of producing a higher standard of work if he continues to work on listening skills and apply himself more consistently. It has been a pleasure to have X in my class this year and I wish him continued successes in his learning in the future.” In relation to the teacher’s comments, X is noted as “an enthusiastic member of the class, who usually displays a good attitude to his school life, however he requires some reminders to be on task and to ensure he completes work in the allocated time. He occasionally distracts others in the class and is learning to be more attentive in class and to be better prepared and organised for class work. It is pleasing to see a more consistent approach to consolidating work done in class by completion of his homework. X’s playground behaviour is of a satisfactory standard, although he continues to learn ways to deal more effectively in his interactions with others so that he does not cause physical harm.”
In relation to Y, the Semester 2, 2010 report card notes achievements as “support being required” in English, which is consistent with the observations of the Family Report Writer, in mathematics he is “developing”, as he is in science, studies of society and environment and health and physical education and music. Y has achieved a sound achievement in physical activity and the arts and technology. Comments by the class teacher note that:
“Y requires some support to effectively participate in school life. Y often needs teacher encouragement to display appropriate classroom behaviour. Y needs to work on sitting still and focussing on class lessons.” In relation to overall comments, the class teacher has noted that Y is “anxious to please, but has difficulties applying the self regulation necessary to complete set tasks. He is easily distracted and needs to work on focussing on his tasks.”
That report card is in line with the other evidence I have in relation to Y’s likely ADHD condition.
I do not consider that either of the boy’s report cards suggests that they are suffering at school from their home life, in fact, X’s teacher has noted that he has a more consistent approach to homework.
I note in passing that the mother herself is having difficulty with her eldest son A in attending school. At the time of the second Family Report interviews there had been, according to the Report Writer, some 12 days of school missed for A that were unexplained. It seems as though A, at that stage, was wagging school and this was causing friction between A and the mother. I am sure that the mother was doing all she could to address that situation. There is however no evidence of X or Y missing school unnecessarily, being late or absent without good reason and I do not accept at face value that the children have not been doing as well at school in the father’s care. I am not overly troubled by the issue of the children not wearing school shoes and consider it is a matter for the parents to work out with the school.
In relation to the capacity of the mother and father to provide for the emotional and intellectual needs of the children, I consider that each of the parties has demonstrated an ability to be a responsible parent. Each of them is capable of ensuring that the children have shelter, food, appropriate accommodation and that their extra curricular activities are catered for. I note that the parents have been in discussion about the future extra curricular activities for the children and that they are mindful of the children’s wishes in this respect. The issue regarding the children’s sexualised behaviour was dealt with. Each seems to know the children’s strengths and weaknesses.
At the time of the second interviews, the children had not been with the mother for a period I believe of some ten days. It is noted in the Family Report that the children did not overtly greet the mother and they were somewhat cool towards her and preoccupied with their activities. Nonetheless, I am satisfied that the mother and the father each has the ability to be attuned to the emotional needs of the children. In relation to Y, each of the parents has exhibited appropriate parental responsibility towards ensuring that Y has an appropriate diet and behaviour guidelines. The mother has been content to leave the father to take Y to the dietician and I very much had the impression that they were working together on Y’s issues. The father submitted a document which he says is his hypothesis on dietary issues concerning Y. It seems to be a compilation of ideas. The mother believes that the children have take away food more than the father concedes and that there is some disconnect between the diet that the father says he is providing for Y and that which the children actually consume. I had the impression that the father was very much in tune with the dietary effects and consequences of certain foods on Y and if anything, his hypothesis when read as a whole document suggests that the father is intensely interested in the consequences of food on the children. It cannot be said, in my view, that the father is not mindful of the diet issue to do with Y. There is no evidence that the father is not feeding the children appropriately. The mother introduced a system of lollies on a Friday for the children when she realised that the children consider that they had very little fun at her house, and that her house consisted mainly of chores and seemingly not much involvement by the mother in fun times with the children. The father also adopted a lolly jar, much to the mother’s annoyance, as she considered that that was her idea and that the father ought not to adopt the same idea. Part of her criticism was that she understood the lolly jar was available on a Monday at the father’s, which was a school night.
I had the impression that the mother failed to acknowledge some of the father’s strengths in this matter. Ms W. initially commented that she considered the appearance of the mother’s home reflected a priority of having a neat and tidy home with nothing out of place. This was compared to the father’s home, which Ms W. considered to be more creative for children. Ms W. considered that the father’s home had plenty of opportunity for the children to themselves engage in playful and creative pursuits. In the mother’s house, whilst conceding that the children did do a performance for Ms W. as directed by the mother, Ms W. considered that nonetheless, the mother’s home simply did not have the same amount of creativity and fun that was in existence at the father’s house.
In relation to the father’s parenting, Ms W. considered that he had the ability to be flexible in particular with Y within a structure. Having a disciplinarian attitude towards Y, as the mother appeared to have, during his challenging behaviour was not conducive to Y being able to maintain his wellbeing and reducing conflict. The father’s approach having it seems, more flexibility than the mother, will be in my view be an advantage in terms of managing Y’s behaviour particularly as Y matures and becomes a teenager. I consider that each of the parents has much to offer all of these children and that each of them has their strengths and weaknesses. To this extent they are like most parents. Together they make for a good team, and if they can continue working together in the future, their children will benefit.

S 60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

I have already made reference to Y’s condition. Z is the youngest in the family and the only girl. As she matures, I consider it is important for her to be involved with her brothers’ normal day to day events and routine. Her years of being a baby are now behind her. X it seems is wishing to have attention and love from both parents. It will be important that each parent stay in tune with X’s emotional needs, particularly as he is now aware that the father is not his biological father.

S 60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child.

Not applicable.

S 60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

There is little to add here other than the parents are loving responsible parents in regard to all the children.

S 60CC(3)(j) Any family violence involving the child or a member of the child’s family; and

In this matter there are no allegations of domestic violence, alcohol abuse or drugs.

S 60CC(3)(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order; or the making of the order was contested by a person

Not applicable.

S 60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

I do not consider that either the mother or father’s proposals are more or less likely to lead to the institution of further proceedings. I have had the impression during the trial that each of these parents have really tried to resolve this matter without the need for litigation. Each of the parties as I have said elsewhere has made mistakes in the past in relation to their parenting. The mother has been too restrictive of the children’s time with the father and the father has unwittingly undermined the mother’s authority which is essential in her role as a parent for her to maintain. The mother gave evidence that she does not wish to reunite with the father despite the fact that the children have suggested that the parties may get back together. The mother said, and I accept that she is keen to get on with her life and put this Court case behind her. I had the same impression of the father and it seemed to me that each of the parties appeared to have a resolve to work together in the future.

S 60CC(3)(m) Any other fact or circumstance that the court thinks is relevant.

Not applicable.

S. 61DA Presumption of Equal Shared Parental Responsibility

There is no evidence in this matter of child abuse or domestic violence. The presumption of equal shared parental responsibility therefore applies. I note the mother seeks orders for equal shared parental responsibility. The father initially sought to have sole parental responsibility in relation to Y. I am not sure that he persisted with that by the conclusion of the trial, I have however considered that issue. I do not consider that the parents’ inability to communicate is so great that the parents cannot communicate in relation to issues jointly. Although the parties have had arguments in the past, in my view those arguments have almost solely been in relation the father wanting to spend more time with the children or the children pressuring the mother to spend more time with the father at a time when she did not want to agree, at the time of separation. There is little other history in this matter of significant issues about which the parties have not been able to agree. The parties have worked co-operatively in relation to Y’s behavioural difficulties and his treatment and I commend them for this. Apart from the parties being unable to agree that the mother could travel to Darwin with the children for a specific period on an earlier occasion, there is not a litany of issues that the parties have been in serious disagreement about. Schooling and health issues have been addressed and, as I have said elsewhere, issues of head lice and school shoes do not indicate to me that these parties have an intractable conflict and are not major issues. I have the impression that the parties have recovered somewhat from the shock and grief associated with the separation and each of them have made progress toward showing respect for the other’s position. I can see no basis for allocating parental responsibility of Y solely to the Father. I intend to make an order for equal shared parental responsibility as I consider it is in the best interests of these children that their parents together make decisions about issues to do with their long term care, welfare and development.
Having made an order for equal shared parental responsibility, the Court must consider whether the child spending equal time with the parents would be in the best interests of the child and whether it is reasonably practicable. It is only when both issues are answered in the affirmative that the Court should proceed to make an order for equal time or if not for equal time, for substantial and significant time.

Best interests of the children

In determining whether it is reasonably practicable for the child to spend equal time or significant and substantial time with each of the child’s parents, the Court must have regard to the matters set out in s.65 DAA(1) and (2) (a) through to (e) which includes how far apart the parents live, capacity to implement an arrangement for the child to spend equal time or substantial and significant time and for their current and future capacity for the parents to communicate with each other and resolve difficulties that might arise in implementing and arrangement of that kind.
I need to also consider the impact of an arrangement of that kind would have. In this matter, I consider that the parents have the ability to implement an arrangement for equal time and or significant and substantial time. These parents in my view have shown a maturity to move on from the difficulties associated with the breakdown of the relationship and to each show a degree of self reflection and have accepted their role in the difficulties that followed from separation. It seemed to me that the arguments related solely from the breakdown and I had the impression that the children were not used to the parents arguing during the relationship. This was confirmed by the mother who said that during the relationship she and the father did not argue. There is no evidence of ongoing arguments between the parties since the interim consent orders have been made and the ongoing difficulties associated with Y’s medical condition. It seems to me that the mother has been content with the father attending appointments if she is not able to make them with the dietician or Dr W.. It seems that they have the ability to resolve difficulties that might arise in implementing an equal time arrangement and a significant and substantial arrangement. In looking at the impact of having an equal time arrangement would have on the children I consider that with the appropriate parental support and support from school in relation to Y that an equal time arrangement will have advantages for the children. It enables them to be parented by and influenced by each of their parents who I believe have much to offer their children. X, the oldest of the children has expressed a view to spend an equal time with his parents and he is also wishing to have time alone with his mother. That is a matter for the mother to organise during the time that she has with X. I am confident that she will do so.
The children live in a small community in (omitted) on the Tablelands behind Cairns and they live within a close proximity of each parent. Given that I do not regard the parents to be in acrimonious relationship, I consider the benefits of having equal time with the parents will enable the children to develop and maintain strong relationships with both each other and each of their parents. The biggest test will be whether or not Y can adapt to a week on week off arrangement and much of this will depend on the support provided to him by his parents in this regard. I am confident that each parent will provide this support.

Evaluation and discussion

In my view the parents seem to hold similar hopes and aspirations for these children and they are each going about their parenting to achieve the same ends. Each of the parents is keen for the children to do well at school and each of them ensure they attend school as required. Each is concerned that the children engage in extra curricular activities and each of them in particular the father, ensures that this occurs. Neither the mother or the father are involved in drugs or have alcohol problems and there are no domestic violence issues between the parties. They are each in their own way competent parents. The fact that the father may have a different parenting style to achieve the same ends is in my view not a disqualifying factor for the children to spend equal time between the parents. I consider that in the future there will be times when the mother’s strengths will be relied upon and equally the father’s strengths will be of value, especially at times when the children may be at loggerheads with their mother. Given that their conflict appears to be in the past, I have confidence that the parents will be able to work together as has occurred in the past.
I have considered each of the relevant section 60CC factors and the primary considerations of the children being entitled to have a meaningful relationship with each parent. I have commented on the importance of the children remaining living together, which in my view is a significant factor. There have been difficulties in the past when the children did not see enough of the father, and I am troubled by the impact after almost 2 years of reversing the current arrangements for X and Y to reduce the time they have with the father quite considerably and resume living primarily with the mother. I am not satisfied that the mother’s proposal to have the boys living primarily with her is in the children’s best interest. The father’s parenting style is different from the mother’s, but I considered that in the long term this will be a strength and advantage for the children. Their exposure to both parent’s influence will enable the children to achieve their full potential. Z is an assertive robust young child who clearly loves being with her brothers and who will cope with week on/week off. I consider it is important for her to develop a meaningful relationship with both her mother and father and that an equal time arrangement will best facilitate this. The sibling relationship is in my view most significant. Living in a week on week off arrangement all together, is an arrangement I consider to be in the best interests of the children. I have confidence that these parents will each facilitate the children’s relationship with the other which is one of the best things they can each do for the children.
I have reservations that altering the living arrangements of the boys at this point in 2012 when Y will be turning 8 and X will be turning 10 to reduce significantly the time that they spend with their much loved father. Clearly they enjoy and continue to enjoy their relationship with their father. That is not also to say that they should not be building up their relationship with their mother. I consider that there is a distinct advantage in the proposal of the father, which is supported by the Family Report Writer, for these children’s to have the benefit of parenting styles of both the mother and the father. I do not consider the issue that their parenting styles are so different to be a disadvantage for the children. Had the mother and father remained living together as a family, the children would have been exposed to both parenting styles, which in my view, together with the parent’s ability to work together will assist and enable the children achieve their potential in life.

After considering each of the parties proposals and all of the relevant s. 60 CC matters and the primary considerations I have concluded that the arrangement which is in the best interests of all of these children is an equal time arrangement. I have noted the age of Z and taken into account that the report writer considered that Z will be able to manage with an equal time arrangement upon her commencing school in 2012.
I also have confidence that if there are any teething issues for the children moving to this arrangement that the mother and father will be able to move through those issues sensibly. I intend to make orders that the parties ensure that all of the children attend counselling forthwith as suggested by the report writer and I will direct that the parties do all acts and things to ensure that this occurs without delay. I intend to make the orders commence a short period after school commences in 2012 to enable the school year to commence prior to the change and for a period of 2 or 3 weeks to pass and then have the equal time arrangement commence.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Willis FM

Date: 25 January 2012