Nelson and Lowrie

[2013] FCCA 818

FEDERAL CIRCUIT COURT OF AUSTRALIA

NELSON & LOWRIE [2013] FCCA 818

Catchwords:
FAMILY LAW – Children – parenting orders – best interests of the children – parental responsibility – equal shared parental responsibility – whether one party should have sole parental responsibility – two children aged 7 years and 3 years – where the children’s mother is of Vietnamese birth – Family Report – Court not required to follow recommendations in Family Report.

FAMILY LAW – Passports – delivery of passports – whether evidence of possibility or threat children may be removed from Australia.

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 62G, 65DAA, 67ZD, 68L

Hall and Hall (1979) FLC 90-713
MRR v GR (2010) 240 CLR 461

Applicant: MS NELSON

Respondent: MR LOWRIE

File Number: SYC 5013 of 2008

Judgment of: Judge Scarlett

Hearing dates: 23-24 October 2012

Date of Last Submission: 11 January 2013

Delivered at: Sydney

Delivered on: 28 June 2013

REPRESENTATION

Solicitors for the Applicant: Legal Aid NSW

Solicitor for the First Respondent: Johnston Vaughan Solicitors

Counsel for the Independent Children’s Lawyer: Mr Fermanis

Solicitor for the Independent Children’s Lawyer: Gonzalez & Co

ORDERS

1. All earlier parenting Orders are discharged.

2. The Applicant and the Respondent are to have equal shared parental responsibility for the children [X] born [in] 2006 and [Y] born [in] 2010.

3. Until the unborn child of the father and Ms P turns one (1) year of age:

   (a)The children [X] and [Y] are to live with the mother;

   (b)The children are to spend time with the father during the school term:

   (i)Each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday morning PROVIDED THAT if the Monday immediately after the weekend is a public holiday then the father is to return the children at the commencement of school on the following Tuesday morning; and

   (ii)From the conclusion of school on Wednesday until the commencement of school on Friday in the following week being Week Two;

4. Once the unborn child of the father and Ms P attains the age of one (1) year, the children are to live with the mother and the father on a fourteen (14) day cycle as follows:

   (a)In Week One the children are to live with the mother from the conclusion of school on Monday until the commencement of school on the following Monday PROVIDED THAT if the following Monday is a public holiday then until the commencement of school on the following Tuesday except from the conclusion of school on Wednesday until the commencement of school on Friday; and

   (b)In Week One the children are to live with the father from the conclusion of school on Wednesday until the commencement of school on Friday;

   (c)In Week Two the children are to live with the father from the conclusion of school on Monday until the commencement of school on Monday except from the conclusion of school on Wednesday until the conclusion of school on Wednesday until the commencement of school on Friday;

   (d)In Week Two the children are to live with the mother from the conclusion of school on Wednesday until the commencement of school on Friday.

5. Once the child [Y] attains the age of seven (7) years the children are to live with the parties on a fourteen (14) day cycle as follows:

   (a)With the mother from the conclusion of school on Friday until the commencement of school on Friday (being Week Two) in the following week; and

   (b)With the father from the conclusion of school on Friday (being Week Two) until the commencement of school on Friday in Week One.

6. SAVE AND EXCEPT for Orders (3), (4) and (5) above, the Children will otherwise live with the parties as follows:

   (a)For one half of each of the New South Wales Winter, Spring and Autumn school holidays as agreed and in the absence of agreement:

   (i)With the mother in the first half of the school holiday period and the father in the second half of the school holiday period in 2013 and all even numbered years from then on; and

   (ii)With the father in the first half and the mother in the second half of the school holiday period in 2014 and all even numbered years from then on.

   (b)SAVE AND EXCEPT for Order (6)(c) below, during the Christmas/January school holidays in each year:

   (i)Until the child [Y] attains the age of seven (7) years:

   A.with the father in the first week and each alternate week from then on and with the mother in the second week and each alternate week from then on during even numbered years; and

   B.with the mother in the first week and each alternate week from then on and with the father in the second week and each alternate from then on during odd numbered years.

   (ii)Once [Y] attains the age of seven (7) years, one half of the Christmas/January school holidays as agreed and in the absence of agreement:

   A.with the father in the first half and the mother in the second half during even numbered years; and

   B.with the mother in the first half and the father in the second half during odd numbered years.

   (c)During the Christmas period:

   (i)With the mother from 4:00 pm on Christmas Eve to 4:00 pm on Christmas Day in 2013 and each odd numbered year from then on and from 4:00 pm on Christmas Day to 4:00 pm on Boxing Day in 2014 and each even numbered year; and

   (ii)With the father from 4:00 pm on Christmas Eve to 4:00 pm on Christmas Day in 2014 and each even numbered year from then on and from 4:00 pm on Christmas Day to 4:00 pm on Boxing Day in 2013 and each odd numbered year from then on.

   (d)During the period of Tet, the children are to live with the mother.

   (e)The children are to live with the mother from 9:00 am until 5:00 pm on Mother’s Day in each year if that day should fall on a day when the children are not otherwise living with the mother.

   (f)The children are to live with the father from 9:00 am until 5:00 pm on Father’s Day in each year if that day should fall on a day when the children are not otherwise living with the father.

   (g)During the children’s birthdays being [omitted] in the case of [X] and [omitted] in the case of [Y], if the children are living with one party in accordance with these Orders the other party is to spend time with the children from 4:00 pm until 7:00 pm on that day.

   (h)During the birthdays of each of the mother and the father, if the children are living with one party who is not the celebrating party in accordance with these Orders, the other party being the celebrating party is to spend time with the children from 4:00 pm until 7:00 pm on that day; and

   (i)At such other times as the parties shall agree.

7. For the purposes of Orders (3),(4) and (5) above, changeovers are to take place at the children’s school, day care or preschool where either or both attend from time to time as the case may be.

8. For the purposes of changeovers that do not occur to or from school, day care or preschool including for school holidays and special occasions the changeovers will occur as agreed between the parties and failing agreement with the mother to deliver the children to the father at McDonald’s Family Restaurant on [address omitted] at [R] at the commencement of the father’s time with the children and the father to return the children to the mother at McDonald’s Family Restaurant on [address omitted] at [R] at the conclusion of his time with the children.

9. The parties are to have reasonable communication including but not limited to email, Skype, SMS, telephone or webcam with the children at all reasonable times when the children or either of them are in the care of the other party. The party with whom the communicating child is living must facilitate the communication with the other party and give that child privacy whilst he or she is communicating with the other party.

10. The parties are restrained by injunction from denigrating or criticising the other party in the presence or hearing of either of the children or permitting any other person from doing so.

11. The parties are restrained from discussing these proceedings or showing or releasing any court document relating to these proceedings to any other person or organisation except a party to these proceedings or their legal advisers.

12. The parties are restrained by injunction from discussing with the children or either of them any allegations or disclosures made in these proceedings and use their best endeavours to ensure that other people do not do so.

13. Each party must inform the other party within twenty-four (24) hours or as soon as reasonably practicable of any medical or other emergency relating to the children or either of them and provide all necessary authorities to the other party to attend on that emergency.

14. The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the children attend and authorise the practitioner or hospital to provide to the other party at his or request and expense any information or reports concerning the children provided that this Order is sufficient authorisation to do so.

15. Both parents are entitled to attend all events involving the children, including but not limited to:

    (a)Sporting fixtures;

    (b)Extra-curricular activities that allow for attendance by parents; and

    (c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent/teacher interviews, canteen duties and social functions and the parent who has the children in his or her care on the day of that event or activity will be responsible for the children’s day to day care at that event or activity and the transportation of the children to and from that event or activity unless the parties agree otherwise.

16. The father and the mother are to ensure that the other parent is informed of:

    (a)any illness or injuries suffered by the children whilst the children are in their care necessitating a visit to a doctor or hospital;

    (b)any medication that has been prescribed for the children;

    (c)any social, school or religious function that the children are to attend; or

    (d)any other matter relevant to the children’s welfare.

17. The parties must keep each other informed of their current residential address, landline and mobile telephone numbers and email address and advise each other of any changes within seven (7) days of that change occurring.

18. For the purpose of any overseas travel with the children the party wishing to travel overseas with the children must notify the other party of all proposed travel arrangements including providing a copy of all flight details and a travel itinerary no later than thirty (30) days prior to the date of proposed travel.

19. The Independent Children’s Lawyer is discharged at the expiration of twenty-eight (28) days after the date of this Order.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 5013 of 2008

MS NELSON

Applicant

And

MR LOWRIE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the mother of two children for parenting Orders providing that:

   a)The parents should have equal shared parental responsibility for their daughter [X], who was born [in] 2006, and their son [Y], who was born [in] 2010;

   b)The children should live with her from 6:00 pm on Tuesday evening until 6:00 pm on Saturday evening each week;

   c)The children should live with their father from 6:00 pm on Saturday evening until 6:00 pm on Tuesday evening;

   d)[X] should remain enrolled at [K] School and [Y] should also go to that school when he is old enough;

   e)Until [Y] is old enough for pre-school, [Y] should attend Family Day Care for ten hours per week;

   f)The children’s birthdays should be shared between the parties; and

   g)Other ancillary orders.

2. The father seeks orders that:

   a)He should have sole parental responsibility for the children;

   b)The children should spend one block of time with their mother each fortnight from after school or pre-school on Friday until the commencement of school or pre-school on the following Monday;

   c)All changeovers should take place at school or pre-school;

   d)The parents should spend half the shorter school holidays with each parent;

   e)Until [Y] turns 7, the children should spend blocks of seven days during the Christmas/January school holidays with each parent; and

   f)Other ancillary orders.

3. The Independent Children’s Lawyer initially did not express a view about suitable arrangements for the children, but after the evidence was completed submitted that:

   a)The parties should have equal shared parental responsibility for the children;

   b)Until the unborn child of the father and his de facto partner Ms P is born, the children would live with the mother and spend alternate weekends with their father from after school on Friday until the commencement of school on Monday, and, in the second week, spend time with him from after school on Wednesday until the commencement of school the following week;

   c)Once the child is born to the father and Ms P, the children would live with the parents in a 14 day cycle, being with the mother from after school on Monday until the commencement of school the following Monday, except that they would live with the father from after school on Wednesday until before school on Friday in Week One and with their father in Week Two from after school on Monday until before school the following Monday, except that they would be with their from after school on Wednesday until before school on Friday; and

   d)A further change would take place once [Y] turns seven (he is now three), going into a week about arrangement from Friday to Friday with shared school holidays.

4. The mother has now adopted this proposal, with a couple of minor variations:

   a)She proposes that changeovers should take place at McDonald’s Family Restaurant at [R] rather than at the parties’ homes; and

   b)She proposes that the father should deposit the children’s passports at the Court Registry.  

Background

1. The father was born [in] 1971. He is now 42 years of age.

2. The mother was born [in] 1977. She is therefore now 36 years old.

3. The mother arrived in Australia from her native Vietnam [in] 1997. She commenced an English language course and later a [omitted] course, which she completed in December 1999.

4. The mother was married for the first time [in] 2000, to one Mr N. She separated from her husband in 2002 and the parties’ divorce became absolute on 1 March 2004. 

5. The mother had commenced working at [omitted] in 2002 and it was there that she met the father in March of 2005. They commenced going out the following month.

6. In [omitted] 2005 the mother became pregnant and on [date omitted] the following year the parties’ daughter [X] was born. The parties were married [in] 2006 and commenced living in the suburb of [W].

7. The mother had had difficulties with her immigration status since about April 2005, as her student visa had expired.

8. In September 2007 the mother returned to Vietnam, taking the child with her. The father travelled with them and returned to Australia in October. The mother remained in Vietnam.

9. The mother was granted a spouse visa on 18 December 2007. She was sponsored by the father. She returned to Australia with [X] on 22 or 23 December. The parties resumed cohabitation at [W].

10. The maternal grandmother arrived from Vietnam in January 2008 to assist with the care of the child. The mother returned to work.

11. Difficulties arose between the parties in January and February 2008. On 22 February 2008, after an argument between the parties where the father had retained the child, the Police became involved. The mother said to the Police:

    “I will kill myself if I do not see my daughter”.

12. The maternal grandmother returned to Vietnam in June or July 2008.

13. The mother alleges that the father threatened to have her spouse visa cancelled. She also alleges that the father threatened her by saying:

    “If you break up with me I will kill you”.

14. The parties separated on 25 July 2008 when the mother left the father, taking the child with her. The mother made a complaint to [M] Police. She was taken by the Police to a refuge at the [omitted] Centre and stayed there for about seven weeks.

15. On 27 August 2008 the father filed an Application for parenting orders, in which he sought orders that:

    a)He should have sole parental responsibility for [X];

    b)She should live with him;

    c)The mother’s time with the child would be supervised;

    d)The mother would be restrained from removing the child from Australia; and

    e)A Commonwealth Information Order should issue.

16. In his affidavit in support, the father deposed that he had last seen the mother and the child on one occasion, on 9 August, but she had telephoned him from an unknown location on 26 August. The Orders sought were made ex parte. Those Orders were subsequently discharged by consent on 5 September 2008.

17. The parties resumed cohabitation in September or October, but separated after an altercation on 11 October, when the mother deposed that the father hit her with a towel. The mother went to the Police who arranged for her to return to the refuge. She claimed that he would not return the child to her care.

18. On 6 November 2008 an interim Apprehended Violence Order was issued against the father at [omitted] Local Court.

19. On 24 November the parties entered into Consent Orders providing that the child would live with the mother from 2:00 pm on Tuesday until 4:00 pm on Thursday each week, with the changeover occurring at the [T] Police Station. The rest of the week the child would live with the father.

20. On 16 December 2008 the parties again attended Court. They were directed to attend a Child Dispute Conference with a Family Consultant. No agreement was reached and the Application was adjourned to 11 February 2009 for an Interim Hearing.

21. On 2 February 2009 the mother was admitted to the [omitted] Hospital after being found in a distressed state at [K] Railway Station. She was discharged the next day but was referred to the Mental Health Team at [omitted] Hospital and the Transcultural Mental Health Team.

22. On 11 February 2009 Federal Magistrate Altobelli[1] varied the parenting Orders so as to provide that the mother would spend time with the child from 9:00am to 5:00 pm on Tuesdays and Thursdays supervised by a friend of the mother. His Honour also ordered that the interests of the child should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975 (Cth).

    [1] As his Honour then was

23. The mother wrote to [omitted] Local Court on 6 April 2009 seeking to withdraw the Apprehended Violence Order against the father.

24. On 30 April 2009 the mother resumed cohabitation with the father. She later became pregnant with the parties’ second child, [Y], who was born [in] 2010.

25. On 3 July 2009 the parties attended this Court. Altobelli FM noted that the father’s Application was withdrawn and dismissed and ordered that all the Orders were discharged. The Independent Children’s Lawyer was discharged.

26. The parties were involved in an altercation on 12 December 2009. The mother was taken by the Police to the [omitted] Hospital where she was assessed. The mother claims that this was the date of their final separation.

27. The mother was released from hospital on 13 December. The father advised her that he had applied for an Apprehended Violence Order against her. The mother left to stay with a friend. The child remained in the care of the father.

1. On 14 December the mother was charged with assault on the father’s sister arising from the incident of 12 December. The Police obtained an interim Apprehended Violence Order against the mother, naming the father as the protected person.

2. In February 2010 the mother commenced living in [omitted].

3. The parties’ son [Y] was born [in] 2010.

4. The parties came to an agreement about parenting in April or May 2010.

5. On 9 July 2010 at [omitted] Local Court the mother pleaded guilty to an assault on the father’s sister. She was placed on a good behaviour bond without a conviction being recorded.

6. The mother became a permanent resident of Australia on 26 September 2010.

7. In May 2011 the father commenced a relationship with Ms P.

8. On 22 July 2011 the mother commenced proceedings by filing an Application for parenting orders. In her Application, which was returnable on 9 August, the mother sought:

   a)An interim Order that the father return [Y] to her care; and

   b)Final Orders that both children should live with her for four days each week and with the father for the other three days.

9. The mother deposed in her supporting affidavit that [Y] had been in his father’s care since 16 July under an agreement that she could pick the children up the following day at 6:00 pm. However, the father sent her an SMS message saying that he would retain the children in his care until an agreement could be made.[2]

   [2] Affidavit of Ms Nelson 20 July 2011 at paragraph [33]

10. The mother further deposed that the father had not let her see the children since.

11. The father filed a Response on 9 August, seeking dismissal of the mother’s Application and seeking orders that the two children should continue to live with him and spend time with their mother for six hours twice a week.

12. In his affidavit sworn on 20 August 2011 the father described a tempestuous relationship with the mother. He expressed concern about the mother’s behaviour, including a suicide attempt at [R] Railway Station. He described various arguments that they had had, including one incident on 12 December 2009 where he deposed that the mother had smashed their television set and a fixed glass panel in their home. He also set out details of events that had occurred between 15 July and 9 August 2011 where he and the mother were unable to agree about arrangements for the children. He deposed that the mother would not comply with any agreement and would take or attempt to take the child [X] from school or after school care when the child was supposed to be in his care.

13. An interim hearing was listed for 15 November 2011 before Federal Magistrate Coates[3]. On that date the parties entered into interim Consent Orders providing that the children were to live with the parties on a 14 day cycle, with changeovers at [K] Police Station and the parties restrained from visiting each other’s homes unless specifically invited in writing.

    [3] As his Honour then was

14. On 23 April 2012 the Application was set down for final hearing.

15. The parties were divorced on 17 May 2012.

Evidence

1. The mother relied on her affidavits of:

   a)20 July 2011; and

   b)17 August 2012.

2. She also relied on the affidavit of Mr A sworn 22 December 2011.

3. The father relied on his affidavits of 22 August 2011 and 24 August 2012.

4. Both parties gave oral evidence and were cross-examined. No other person was required for cross-examination except the Family consultant who had prepared the Family Report.

5. The mother gave evidence with the assistance of an interpreter in the Vietnamese language. She denied in her evidence that she had ever suffered from a mental illness or had ever intended to suicide. She denied that when she left Australia for Vietnam that she had any intention to stay in Vietnam permanently.

6. In cross-examination by Mr Fermanis of counsel for the Independent Children’s Lawyer, the mother conceded that it was “not the best” for changeovers to take place at a police station but said that it was better than what had occurred in the past. She agreed that it would be more appropriate for changeovers to take place at somewhere like a McDonald’s restaurant, because it was a public place.

7. The mother said that she would like the children to be with her at the time of the Vietnamese festival known as “Tet” and asked the court for an order to allow this to happen.

8. The mother said that she was not concerned about the possibility of the father hitting their daughter [X].

9. The father was extensively cross-examined. He has a new partner who was expecting a child in November. She is not an Australian citizen, nor is she a permanent resident. The father said that he could not sponsor anyone for a spouse visa for five years.

10. The father was critical of the mother in his evidence. He said that he did not believe that she was capable of taking care of the children. Disturbingly, he told Ms O’Donnell, the solicitor for the mother, that there was nothing at all he could say about the mother that was admirable. He said that he was concerned about the behaviour the mother had shown in the past.

11. The father said that he had explained to their daughter when she had asked him about getting back together with her mother that he does not love her and she does not love him. He said that he does not have a relationship with her; they do not talk.

12. Despite his critical attitude towards the mother, the father said that he accepted that Tet is a festival that he had read about; he would not have any objection to the children taking part in Tet celebrations with their mother. Similarly, when asked if he had any objection to the children learning to speak Vietnamese, the father replied “Absolutely not”.

13. The father said in cross-examination by Mr Fermanis that he wanted sole parental responsibility for the children so that he could make decisions for the children without having consultation with their mother. He went on to say, however, that he did not want the mother not to be in the children’s lives, he just did not want a continuation of the problems that they had been having.

14. The father agreed that the children enjoyed spending time with their mother, saying that they were happy when they returned to him. [Y] could not express himself verbally. [X] occasionally said something (about spending time with her mother) but basically she was happy with her relationship with her mother.

The Family Report

1. A Family Report under the provisions of s.62G of the Family Law Act 1975 (Cth) was prepared by a Family Consultant, Ms K, on 4 April 2012. The Report was released to the parties the following day.

2. For the purposes of her Report, Ms K interviewed the following people:

   a)The father;

   b)The mother;

   c)The child [X];

   d)The two children with the father and the father’s de facto partner; and

   e)The two children with the mother.

3. In her Report, the Family Consultant noted that the children were living in an equal time parenting arrangement “moving between their parents each Tuesday at 6 pm and again, in one week at 6 pm Friday and in the alternate week at 6 pm Saturday”.[4]

   [4] Family Report page 2 paragraph [6]

4. The Family Consultant identified the following issues between the parties:

   ·    Each parent’s belief that other parent’s parenting style is not the most appropriate for the children

   ·    On-going conflict between the parents in relation to many aspects of each child’s life (bed times and sleeping arrangements, homework [for [X]], eating habits)

   ·    Inability of the parents to manage conflict when they meet unexpectedly in public places

   ·    Potential for the parents to misconstrue each other’s motives/intentions

   ·    Lack of appropriate communication between the parents

   ·    Lack of trust between the parents

   ·    Potential longer term negative impact on the children as a result of their exposure to on-going parental conflict

   ·    Potential longer term negative impact on the children as a result of the likelihood of the parents having very different parenting styles from each other

   ·    Potential impact on the mother’s ability to provide the children with stable accommodation as a result of her own limited financial capacity (in the context of her no longer having a flatmate to share rental costs with from April 2012 – Ms Nelson having said that this was the reason she had a flatmate).[5]

   [5] Ibid pages 4 & 5 paragraph 11

5. The Family Consultant recorded that the mother stated that the father had been physically aggressive and verbally abusive during the marriage and continues to be verbally abusive. She admitted to some aggressive behaviour in the past but said it was brought about by her anger at the father’s alleged affairs.

6. The Family consultant noted that the mother denied ever having been admitted to a psychiatric unit or having ever suffered any mental health problems. However, the Family Consultant noted the extensive subpoenaed material which indicated that:

   a)the mother had on at least two occasions, been taken by the police to a psychiatric unit under the Mental Health Act; and

   b)the mother informed the Department of Family and Community Services in November 2011 that she had been seeing a psychiatrist.[6]

   [6] Family Report page 6 paragraph [15]

7. The mother expressed concern that the younger child, [Y], was probably being cared for by his paternal grandmother and expressed the view that, if that were the case, the child should spend the time with her. She also expressed concern about the father having had “a series of girlfriends” which she believed was inappropriate for the children to have to contend with.[7]

   [7] Ibid page 7 paragraphs [17]-[18]

8. The Family Consultant observed the father as “developing some insight into the issues for the children arising from the behaviour of each parent, from them being separated from each other for much of their lives, and from the parents having different parenting style”[8].

   [8] Ibid page 7 at [19]

9. The father told the Family Consultant that it was the mother’s behaviour that led to much of the conflict between them and expressed the opinion that the mother might suffer from some mental health issues. He believed that he was the parent better able to provide the children with stable parenting, consistent care and stable accommodation.

10. The Family Consultant went on to observe:

    During their joint interview, the parents’ communication style was observed to be combative and conflictual with each wishing to prove the other parent wrong about a number of issues. There was minimal respect shown by either of them to the other during this interchange.[9]

    [9] Family Report page 10 at [25]

11. The Family Consultant observed the child [X], who was aged 5 years and 7 months at the time, as giving responses to questions “indicative of a child who experiences each parent as emotionally available and who also experiences a secure attachment to each parent.” [10]

    [10] Ibid at [29]

12. It was the Family Consultant’s evaluation that both children demonstrated behaviour indicative of having secure attachments to each parent. She went on to state:

    One could hypothesise that each parent, in the absence of the other parent and conflict, has been, or has been assisted to be, attuned and emotionally available, to the child in her/his care. This would account for the seemingly secure attachment of each child to each parent.[11]

    [11] Ibid at [38]

13. However, the Family Consultant was troubled that neither parent appeared to be able to formulate appropriate communication strategies in order to make even minor changes to the parenting arrangements, and also that neither parent had other than a low level of trust in the other parent in relation to the other parent’s care of the children.

14. The Family Consultant recommended that:

    a)The father should have sole parental responsibility for the children;

    b)The children should live with their father and continue to spend time with their mother;

    c)All changeovers should take place at the children’s school or pre-school;

    d)Mid-year school holidays should be shared;

    e)The long school holidays, until [Y] turns 7, should see the children move between their parents each seven days;

    f)The father should undertake a Triple P parenting course;

    g)The parents should nominate a general practitioner or medical centre in the local area for the children; and

    h)The parents should have an intake assessment with the agency in which they completed a Parenting Order Program in relation to their suitability for individual and joint counselling with the aim to assist them to develop better communication strategies and to make medium to longer term decisions for the children.

15. The Family Consultant gave oral evidence in which she said that she believed that, as at the time, equal shared parental responsibility could work for the parties. However, if the Court were to find that the father was not respectful to the mother, this would change her recommendations. It would undermine an equal time arrangement and also equal shared parental responsibility.

16. The father has a very negative view of the mother. He is likely to become stressed with a new baby in the house, However, on balance, he has done more parenting than the mother.

17. The Family Consultant agreed that the current arrangement was the “least worst” option, but said that changeovers should not happen at the Police Station. They should happen at school or pre-school.

18. As to the suggestion that changeovers, should be reduced, the Family Consultant said that [Y] was not yet 3 years old, and for a 3 year old a week was a long time not to see the other parent. He could also be unsettled, especially with a new baby in the house.

The Law to applied in Parenting Applications

1. When a Court is deciding whether to make a particular parenting order, it is required by s.60CA of the Family Law Act 1975 to regard the best interests of the child or children as the paramount consideration. The Court determines what is in children’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.

2. Subsection 60CC(2) contains with the primary considerations, which are:

   a)The benefit to the children of having a meaningful relationship with both of their parents; and

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

3. The Court is required by s.60CC(2A) to give greater weight to the need to protect the children from harm.

4. The additional considerations are found in s.60CC(3). Not all of them will be relevant in every case, but those that are relevant must be considered.

5. Subsection 61DA(1) requires a court when making a parenting order to apply a presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them. This presumption does not apply in cases of abuse or family violence (s.61DA(2)) and may be rebutted by evidence that satisfies the Court that equal shared parental responsibility would not be in the children’s best interests (s.61DA(4)).

6. Where a parenting order provides for a child’s parents to have equal shared parental; responsibility, the Court must consider under s.65DAA(1) whether spending equal time with each parent would be both:

   a)in the child’s best interests; and

   b)reasonably practicable.

7. If the Court does not make an order to that effect, it is required by s.65DAA(2) to consider whether spending substantial and significant time with each parent would be both:

   a)in the child’s best interests; and

   b)reasonably practicable.

8. All of those matters have been considered, in so far as they are relevant. The consideration under s.60CC(3)(h) is clearly irrelevant, but it is, in my view, relevant to consider that the children’s mother is of Vietnamese birth and the children should be given the opportunity to enjoy aspects of their mother’s culture and language. I take this into account under s.60CC(3)(m).

Conclusions

1. This is a matter where the parties have each complained of verbal and physical violence from the other party and there has been a family violence order in force. It is significant, however, that the mother does not have a fear that the father would use violence on the children.

2. It is regrettable that the parties’ levels of trust and communication appear to be very low, which is not a factor conducive toward equal shared parental responsibility. However, the Family Consultant, in her oral evidence as opposed to the Family Report, indicated her belief that equal shared parental responsibility could work between these two parents.

3. I have considered the Family Report and the evidence of the Family Consultant very carefully, and I have also listened with great interest and attention to the parties’ evidence in Court. It is not the case that the Family Report will necessarily be the determining factor, although it is well established that a Family Report under s.62G of the Act is a very useful tool for the Court to use in its task of making parenting orders that are in the best interests of the children concerned. It is equally true that it is not the Family Consultant who decides what are proper parenting orders to make, but the judge, who hears and considers all the evidence (see Hall and Hall[12]).

   [12] (1979) FLC 90-713

4. Having heard the evidence of the Family Consultant, and noting the submissions of the Independent Children’s Lawyer and the solicitor for the mother, I am of the view that it is in the children’s best interests for their parents to have equal shared parental responsibility for them and I will order accordingly. If the father were to have sole parental responsibility, it is apparent from his evidence that the mother would be unlikely to be included in making long term decisions about the children’s care, welfare and development. He was unable to find anything positive to say about the mother, who is the mother of two of his children.

5. Having arrived at this conclusion, I must now consider whether it is in the children’s best interests and reasonably practicable for their parents to spend equal time with them. The orders proposed by the Independent Children’s Lawyer and essentially supported by the mother’s solicitor do not propose that equal time should be spent between the children’s parents for twelve months after the birth of the father’s child with his new partner, which appears to be realistic in that the father and his partner will have a new baby to occupy their time and attention for the first twelve months. After that, an equal time arrangement will commence.

6. Noting the children’s secure emotional attachment to each parent as recorded by the Family Consultant, such an arrangement would appear to be in the children’s best interests. The parties live relatively close to another, so it would also appear to be reasonably practicable.

7. During the first 12 months of the life of the father’s new child, the children [X] and [Y] will be spending substantial and significant time with each parent, which again appears to be both in their best interests and reasonably practicable (see MRR v GR[13]).

   [13] (2010) 240 CLR 461

8. As always, the Court must regard the best interests of the children as the paramount consideration. Looking at the primary considerations in s.60CC(2), it is of benefit to the children to have a meaningful relationship with both of their parents. The Family Consultant noted that, despite the high level of conflict between the parties, the children appeared to have secure attachments to both parents. The father gave evidence that the children appear to be happy when they return from spending time with their mother. The Family Consultant considered that each parent, in the absence of the other, appeared to be “attuned and emotionally available”[14] to each child.

   [14] Family Report page 15 at [38]

9. There has been family violence in the past, including an Apprehended Domestic Violence Order. There are no current orders.[15] However, the Family consultant did not observe any of the behavioural problems that can flow from disrupted attachments to the parents.

   [15] See s.60CC(3)(j) and (k))

1. The mother specifically gave evidence that she did not believe that the father would hit [X]. The father’s claim that the mother has a mental health problem but the mother does not concede that any such problems would impact on her ability to be a parent.

2. It appears that the parties have been successful in keeping the children insulated from the conflict between them, even though the children have been exposed to that conflict. There does not appear to be an unacceptable risk to the children of physical or psychological harm in the care of either parent, although the parents should have little opportunity to interact in order to avoid arguments.

3. There are additional considerations in s.60CC(3) of the Act, some of which have already been referred to.

4. The children are too young for their views to be given any significant weight, although the Family Consultant has noted their apparent secure attachment to each parent.

5. The children clearly have a loving and nurturing relationship with each parent. They also have a loving relationship with each other. Their relationship with the father’s partner appears to be less strong, which is not surprising, given the relative amount of time that she has been present in their lives.

6. There is no evidence from or about the children’s paternal or maternal grandparents.

7. The parties do not have a history of joint participation in making decisions about the children. It is to be hoped that equal shared parental responsibility will require this to happen, but the father’s desire for sole parental responsibility so that he would not have to consult the mother about making decisions for the children is not a good reason for him to have sole parental responsibility. The mother could be “shut out” from decision-making.

8. The Independent Children’s Lawyer has noted the mother’s allegation that the father is in arrears in respect of child support payments and the father’s belief that he should not be liable to pay. Neither party provided any evidence from the Child Support Agency so the Court cannot take that matter any further.

9. The parties otherwise, as the Independent Children’s Lawyer noted, have not failed to fulfil their obligations to maintain the children.

10. The evidence is that the interim parenting Orders made on 15 November 2011 had provided the children with greater stability. These orders had the children spending approximately equal time with each parent in a 14 day cycle. They appear to have worked. This evidence does not suggest that it would be in the children’s best interests to reduce their time with their mother.

11. As mentioned at [92] above, the parties live relatively close to each other and there is no practical difficulty or expense with the children spending time with either parent.

12. The father appears to have a capacity to provide for the children’s emotional and intellectual needs as well as their physical needs. The father has been critical of the mother’s ability in this regard, although his criticisms appear to have abated since the Orders of 15 November 2011 came into effect.

13. One concern is the question of whether the mother is a suicide risk, but this concern seems to have abated since 2009. The evidence of Dr E, Mr G and Dr Q in the subpoenaed material does not identify the mother as a suicide risk. The mother appears not to have coped well with stress, but this stress appears to arise from her relationship with the father. If she has little in the way of interaction with him, with changeovers being at school or in a public place, it is likely that her stress will be reduced.

14. The fact that the children have a secure emotional attachment to the mother argues that she is well able to meet their emotional needs.

15. In respect to the consideration in s.60CC(3)(g) of the Act, the children are a little girl aged seven and a little boy aged three years and three months. Their mother is of Vietnamese origin, their father is of Australian origin. The father, to his credit, does not oppose the children being involved in Vietnamese cultural activities such as Tet or learning to speak Vietnamese. It is of importance that the children have the opportunity to enjoy both Vietnamese culture and the culture of mainstream Australia.

16. The Independent Children’s Lawyer expressed concern that the father’s partner did not intend to teach the children to speak Thai, despite the fact that this is her native language and the language which she will use to communicate with her new born child. I do not share that concern.

17. Neither parent emerges as completely blameless in regard to their attitude to the children and the responsibilities of parenthood. Each parent has exposed the children to parental conflict although this seems not to have had the negative effect that one would fear. The Independent Children’s Lawyer commented that the parents allowed the children to be separated in 2011, which does not appear to have been in their best interests. Fortunately, they appear now to have a loving relationship.

18. It is preferable for the Court to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. In my view, the proposal of the Independent Children’s Lawyer, largely supported by the solicitor for the mother, meets this requirement. It is rather more complicated than I would normally prefer, but the parties appear to have the ability to abide by such an arrangement., as witness the period of relative peace and stability that followed the making of the Order by Coates FM on 15 November 2011. It is important that [Y], being only three years of age, has frequent time with each parent, as the Family Consultant pointed out in her evidence.

19. The father’s proposal that he should have sole parental responsibility for the children and that the mother’s time with them should be substantially reduced does not appear to be conducive to this aim or to the children’s best interests generally.

20. There are two particular matters that the mother has raised where she does not agree with the proposals of the Independent Children’s Lawyer.

21. First, the mother seeks that changeovers that do not take place at school should take place at the McDonald’s Family Restaurant at [R] rather than at the parties’ respective homes. The mother gave evidence about this, conceding that a Police Station was inappropriate but expressing a preference for a public place as the changeover venue. There appears to be merit in that proposal and I intend to make that Order.

22. The mother also seeks an Order that the children’s passports should be deposited with the Registry Manager of the Court. There is power to make such an Order under s.67ZD of the Family Law Act 1975, which provides that:

    If a court having jurisdiction under this Part considers that there is a possibility or threat that a child may be removed from Australia, it may order the passport of the child and of any other person concerned to be delivered up to the court upon such conditions as the court considers appropriate.

23. In my view, there is no evidence to support the making of such an order.

24. Otherwise, the Orders to be made are largely as proposed by the Independent Children’s Lawyer with some modifications as considered appropriate.

25. The parties have been engaged in parenting litigation since August 2008. It is time for an end to the litigation.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  15 July 2013