NICODEMOU & DE LUCA

FAMILY COURT OF AUSTRALIA

NICODEMOU & DE LUCA

[2015] FamCA 944

FAMILY LAW – CHILDREN – Best interests – Question as to the father’s time with the children – where the father currently spends time with the children for two weekends per month during school term – where the father seeks to increase his time with the children to three weekends per month during school term – where one child has expressed apprehension about spending time with the father – where the mother does not oppose the father’s proposal – where the Independent Children’s Lawyer relies upon the recommendations of the family consultant and seeks to maintain the status quo – proximity of the parties considered – views expressed by the child considered – final orders made that the father spend time with the children for two weekends per month during school term in addition to the agreed spend time arrangements

Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 4, 11F, 60B, 60CA, 60CC(2), 60CC(2A), 60CC(3), 65C, 65DAA(1), 65DAA(3), 65DAA(5), 91C
Family Law Rules 2004 (Cth)

APPLICANT:

Mr Nicodemou

RESPONDENT:

Ms De Luca

INDEPENDENT CHILDREN’S LAWYER:

McCormack & Co

FILE NUMBER:

MLC

5064

2010

DATE DELIVERED:

4 November 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

8-11 September 2015

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr O’Connell

McCormack & Co

Orders

IT IS ORDERED:

That paragraph 4 of the Orders made on 11 September 2015 be discharged.
That during school term the father spend time with the children each alternate weekend from 7.00 pm Friday until the commencement of school on Monday or until the commencement of school on Tuesday 9.00 am if Monday is a public holiday, such time to commence on the next weekend that the father is otherwise due to spend time with the children in accordance with the existing interim orders made 3 June 2014.
All outstanding applications be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT

All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC5064/2010

Mr Nicodemou
Applicant

And

Ms De Luca

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This proceeding concerns competing proposals for parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). The children of the marriage are B aged eleven, and C aged seven. B is not the biological child of the applicant but has regarded him as her father since birth. B’s putative father was served with the application and the affidavit material but has not filed a response. He is not a party to the proceedings.
Under the Act the applicant falls within the definition of step-parent in s 4. The applicant has standing under s 65C(c) of the Act as a person who is “concerned with the care, welfare or development” of B. He was referred to as “the father” for purposes of the proceedings and will be referred to as “the father” in this judgment.
The interests of the two children were represented by an Independent Children’s Lawyer.
There is a history of litigation between the parties since 2010 in the then Federal Magistrates’ Court and all orders were discharged by consent when the parties reconciled in December 2011.
The father filed a new application on 21 October 2013 following the breakdown of the relationship. The proceedings were transferred to this Court from the Federal Circuit Court on 6 December 2013.
Interim orders made by Senior Registrar FitzGibbon on 3 June 2014 provided inter alia for the children to live with the mother and spend time with the father each alternate weekend from Friday after school to Monday before school; the children to spend time with the father for half of the holidays and that the parties attend upon Ms D to engage in a parenting enhancement program. These orders were implemented by the parties. Since separation in September 2013, the mother has resided with the children and the maternal grandparents.
The father’s key proposal at the commencement of the trial was that the children live with him and spend time with the mother for three weekends of each month and that the maternal grandmother be in substantial attendance. The father’s case was that the mother “has engaged in parental alienation and has negatively influenced both children” against him. He also raised concerns about the mother’s mental health, drug use and parenting capacity in the absence of the support of the maternal grandparents.
It was the father’s case that the mother was responsible for influencing B to make false allegations to a psychologist that he inappropriately touched her after the parents separated. It was also his case that the mother and maternal grandmother influenced B to prevent her from maintaining a meaningful relationship with him by denigrating him. It was also the father’s case that the mother failed to facilitate his relationship with the children after separation.
The mother proposed that the children live with her and spend time with the father in accordance with the existing arrangements under interim orders. She proposed a long-term plan to live independently from the maternal grandparents but did not seek orders in this regard at trial.
At the commencement of the trial, the Independent Children’s Lawyer had a preliminary view consistent with the recommendations of Ms E, the family consultant. Those recommendations were that the children live with the mother and maternal grandparents with some conditions and spend time with the father in accordance with the interim orders.
On the second day of the trial whilst the mother was under cross-examination by counsel for the Independent Children’s Lawyer, the parties indicated that they wished to discuss an alternative proposal. After the luncheon adjournment and two hours of discussion before that, the parties reached agreement with the Independent Children’s Lawyer about final parenting orders for the children. The mother conceded that she would continue to live with the maternal grandparents and accepted the conditions recommended in the report of the family consultant. The father conceded that it was in the best interests of the children to continue to live with the mother and the maternal grandparents with the conditions agreed between the parties and the Independent Children’s Lawyer. Equal shared parental responsibility was not in issue. The parties and the Independent Children’s Lawyer settled the proposal which was agreed by way of a consent minute. I was satisfied that it was in the best interests of the children to make the parenting orders which were agreed between the parties and the Independent Children’s Lawyer. Those orders were made on 11 September 2015.
The recommendations of the family consultant were largely given effect by the final parenting orders which were agreed between the parents and the Independent Children’s Lawyer. These provide for the children to live with the mother and spend time with the father on special occasions as well as for half of each of the holidays. Both parties were ordered to attend upon a mental health practitioner at least four times a year for a period of two years from the date of the orders. Both parties are entitled to receive all relevant documentation and information from the children’s schools, and both parties are restrained from denigrating the other party; discussing the proceedings in the presence of the children; unreasonably questioning the children about events in the other party’s household; and involving the children in the parties’ dispute. Both parties are also required to keep the other party informed of important health issues pertaining to the children and to seek medical treatment for the children if they suffer injury or illness while in that party’s care.
However, the spend time arrangements for the children could not be agreed. Counsel for the Independent Children’s Lawyer was implacably opposed to the agreement reached between the parents that the children spend three weekends out of a four-week cycle with the father during school terms. He relied upon the recommendations made by the family consultant and B’s views expressed in numerous reports to professionals in opposing that agreement.
Both parents agreed that there had been a change in attitude during the trial which had been assisted by the father attending a school concert with the mother one evening on the first day of trial, where he had been well received by the children. Both parents asserted that the weekend arrangements for spending time with the children could be approached more flexibly in the future but the father insisted on pursuing a change to the interim arrangements to provide by order that for three weekends out of the four-week cycle the children spend time with him during school term.
The mother was prepared to accept that proposal but was not opposed to the current school term alternate weekend arrangement continuing. Ultimately the mother submitted that she would accept whatever order was imposed by the Court.

The Issue

Accordingly ultimately the only issue for determination is whether the father spends three weekends out of four with the children during school term or whether the current alternate weekend school term arrangement provided for in interim orders since June 2014 continues.

Background

The mother is aged 33 and the father is aged 39. The father works in his own business and the mother is employed four days per week as a receptionist. During the marriage the family lived in Suburb F and attended church there. Since the latest separation the mother has lived with the maternal grandparents in Suburb G and the father purchased a house in Suburb H where he lives with another family whom he is accommodating temporarily. Neither parent has re-partnered. The children attend school near their residence in Suburb G. The evidence of the father was that the travelling time between the residences is approximately 90 minutes.
The parties were married in 2003 and separated for the first time in November 2009 when the mother left with the children for a brief period. The parties separated again in April 2010. In February 2011 the Federal Magistrates’ Court (as it then was) made orders that the children live with the father and spend each alternate weekend with the mother and each Saturday on condition that one of the maternal grandparents was present.
The Department of Human Services (“DHS”) investigated a number of complaints between 2010 and 2013 and provided a response to the Federal Circuit Court following an order made in December 2013 requesting information.[1] None of the complaints were substantiated and the case was closed without intervention following each investigation.
[1] Section 91B response pursuant to orders of Judge Reithmuller on 13 December 2013.
The s 91B response following the order of Judge Reithmuller on 13 December 2013 shows that on 9 February 2011 the father was noted to have overheld the children following the mother’s concession that she used heroin. The mother conceded in cross-examination that she was recovering from a heroin addiction, and the s 91B response records her admission to hospital dated 13 May 2010 following an overdose of Oxapepam.
The parties were divorced in July 2011. They reconciled in December 2011.
The parties separated finally in September 2013 after the mother reported to police that she had been raped by the father while C was present. The father was arrested and interviewed. The father denied the allegations and no charges were brought against him. Neither party has raised this issue for the purposes of the remaining issue in dispute between them.
Whilst the complaints were being investigated, between September 2013 and January 2014 the father did not spend time with C and between September 2013 and June 2014 he did not spend time with B. Federal Circuit Court orders made 6 December 2013 provided that the father spend supervised time twice weekly with C.
On 14 February 2014 Senior Registrar FitzGibbon made orders by consent for the father to spend time with C each alternate weekend. Further orders were made for the mother to organise genetic testing for the person whom she alleged was the biological father of B. This never occurred and in May 2015 Bennett J ordered that the Independent Children’s Lawyer serve the putative father of B with a copy of the documents in the proceedings. There was no response to the service of the documents and an order was made that the proceedings continue without the putative father in the following terms:
In the event that [Mr I] does not take any active step in these proceedings by 1 July 2015 by, for instance, contacting the independent children’s lawyer and indicating that he seeks parenting orders in relation to [B], filing a Notice of Address for Service in these proceedings or filing an application, the proceedings continue as if unopposed by him and henceforth it is not necessary to name him as a respondent in these proceedings.

Evidence

The documents relied upon by each party are listed in Annexure A. Given that the parties settled all the outstanding issues save for the issue of spend time arrangements during school terms, the father and mother relied upon less material than foreshadowed in their case summaries.
The father was cross-examined by counsel for the Independent Children’s Lawyer and the mother before the parties reached agreement. The mother was cross-examined by counsel for the Independent Children’s Lawyer before the parties reached agreement. Ultimately, regarding the remaining issue for determination, the family consultant was cross-examined by counsel for the Independent Children’s Lawyer and the parents. The expertise of the family consultant was not challenged.

Standard of Proof

The relevant standard of proof is the balance of probabilities. Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject matter of the proceeding; and
(c)       the gravity of the matters alleged.[2]

The Submissions

[2] Evidence Act 1995 (Cth) s 140.

Closing submissions of the Independent Children’s Lawyer

In closing submissions, the Independent Children’s Lawyer supported the existing arrangements for the father to spend alternate weekends with the children during school terms relying upon the opinion expressed by the family consultant in her evidence.
Counsel for the Independent Children’s Lawyer did not take issue with the travel being shared by both parents.
The Independent Children’s Lawyer supported the current arrangements on the basis that it should be the children’s primary carer who has the security of Court orders to veto any proposal for additional time with the father if that was sought by the mother and children. Particularly in relation to B, counsel for the Independent Children’s Lawyer observed that it would be difficult to implement the father’s proposal.
Counsel for the Independent Children’s Lawyer congratulated the parties on a more positive co-parenting relationship in recent times, including the successful interaction at the children’s concert on an evening during the trial. However, he maintained that B’s consistent statements about her apprehension in spending time with the father could not be ignored, despite her good relationship with the father. He submitted that while B is happy in the company of the father in public, she has expressed a fear of being with the father in private.
Counsel for the Independent Children’s Lawyer also submitted that there is a clear difference in the quality of the time spent between a parent and the children during the weekdays as opposed to during the weekends. Court orders implementing the three-weekend approach would reduce the children’s weekend time with the mother to one weekend per month. Counsel also noted the family consultant’s observation that B has a closer relationship with the mother and this situation is likely to persist as she reaches puberty. As B is a child of 11, counsel acknowledged the report writer’s concession that she could be influenced by the circumstances of parental conflict and the litigation, but noted that the family consultant said she was not perceived to be under any pressure from any adult in expressing her wishes. Counsel for the Independent Children’s Lawyer also expressed concern at the geographical distance between the parties’ houses, particularly in relation to C’s capacity to cope with the long transit period. While counsel conceded the family consultant’s view that the children would cope better when they are older, he also expressed concern that the children would find the drive more tedious.
Counsel for the Independent Children’s Lawyer also expressed significant concern about the dynamics of the relationship between the parents, pointing to Ms D’s observation as reported to the family consultant that the mother was “disempowered” and attempting to appease the father. Counsel referred to the father’s cross-examination of the mother as a “role-play in appeasement” and submitted that she made some “remarkable” concessions. Examples included the fact that when asked about her emotional state during the marriage between 2004 and 2010, she was asked whether she was happy and answered “yes, most of the time”. Counsel for the Independent Children’s Lawyer submitted that this flew in the face of her own evidence of post-traumatic stress disorder and hospitalisation at various institutions over the years. Counsel also emphasised the mother’s evidence that the father was not accommodating towards her and that she complied with his requests to drive the children to his residence because she did not want the children to miss out on their time with the father, and also could not bear the harassment from the father if she were to refuse. Upon cross-examination of the father, the mother readily conceded that he was very accommodating and that he was a good father to the children. As counsel for the Independent Children’s Lawyer observed, this was a total change from his cross-examination of the mother when she grudgingly agreed that the father was a competent parent.
Counsel for the Independent Children’s Lawyer referred to the mother’s references to having “hope” that the orders would “work out,” and her willingness to return to Court if these orders did not resolve the question as to spend time arrangements. He submitted that it would not be beneficial to the children for their parents to re-engage in litigation, particularly as the parties in this case have been engaged in litigation for several years already.

Closing submissions of the father supported by the mother

In his closing submissions, the father stated that he has always been committed to his children albeit that he discovered in 2011 that B was not his biological child. He pointed to his attempt to resolve the issues by approaching the mother during the trial for settlement negotiations, and by making what he called was a “considerable and substantial concession” in relation to the mother’s current and future mental health, presumably to the effect that she was capable of raising the children without the need for medical intervention. The father submitted that he has empowered the mother instead of disempowering her. He rejected the views of the Independent Children’s Lawyer and Ms D, referring to what he said was a good relationship with the mother in the past five years of legal proceedings. He pointed to the subpoenaed hospital records to show that he visited the mother with the children while she was in hospital.

The mother expressed agreement with the father’s proposal but ultimately deferred to the Court. She expressed confidence that the father would be flexible in the future regarding discussions about the weekend arrangements during school term.
As to the family consultant’s view that B does not want to spend time with the father in private, the father relied on Annexure JLN-22 of his affidavit filed 31 January 2014. This is an email dated 23 January 2014 from a worker at the Family Contact Service to the parties’ lawyers. She advised that C had said during the contact session on 22 January 2014 that “[B] and his mother were yelling at each other over [B] wanting to visit with her father today with him while they were in the car”. From this he seeks to draw an inference that B has always wanted to see him, but did not have an opportunity to do so until the s 11F report dated 15 May 2014 was produced to the Court. With regard to B’s view expressed in the family report, he said that there was no evidence that B expressed any similar sentiment to her doctors, her schoolteachers, or any other professional other than to the court-appointed family consultant.
As for the foundation for B’s fear of his yelling, the father submitted that the parenting styles were different and conceded that B may indeed have been scared if he yelled whilst disciplining the children. However, he maintained that given B’s age, her views as to spending time with the father should not be considered in circumstances where over three years she has expressed a consistent view without, in his submissions, properly understanding what she says.
The father appeared to be critical of other court processes and earlier hearings, identifying the Independent Children’s Lawyer’s refusal to consent to the father’s proposal to remove supervision in the spend time arrangements in circumstances where the mother had already consented. He also criticised the professional involvement with the children, submitting that the family consultant only spent 15 minutes with the children before coming to the recommendation which was the basis of the Independent Children’s Lawyer’s opposition to the father’s proposals.
Ultimately, it was the father’s submission that the children would benefit from the extra weekend because they would spend time with the father’s extended family and be immersed in his culture and church activities.

The Evidence of the Family Consultant Ms E

Recommendations of the family consultant

The family consultant Ms E completed three reports during the course of five years of litigation between the parties. She completed reports for previous proceedings in November 2010 and March 2011. The report prepared for this trial was dated 4 August 2015.
In her latest report, Ms E recorded that both parents allege the other was using heroin during the relationship. She noted that both parents have been on buprenorphine treatment and both say the treatment was successful. The mother admitted to relapsing in January 2011 when she began using heroin again. She was admitted to a private hospital for a week to detoxify and the children lived with the father until the couple reconciled in late 2011.
Ms E recommended that the interim orders of 3 June 2014 be continued; that the mother live with the maternal grandparents but that if the mother proposed to live away from the home of the maternal grandparents that she be restrained from moving further than 90 kilometres away from the father’s house at Suburb H; and that she provide a report from her mental health practitioner to the father attesting to her parenting capacity and abstinence from illicit substances. She also recommended that both parents attend upon a mental health practitioner no less than quarterly and comply with all treatment recommendations for no less than two years. She recommended that the father be provided with all school newsletters, notices and reports to which he would usually be entitled and that the mother and father take into account the extra-curricular and social preferences of the children when making arrangements for spending time with them.

The children’s views

Ms E noted that little information was gained directly from C but that on the material available from the mother and father he appears to be happy to spend regular time with his father. This opinion was based on the current arrangements.
Regarding B, Ms E stated the following:
[B’s] stated opposition to seeing [Mr Nicodemou] gives the impression of having been exposed to negative aspects of him over some time. Whether that has been a feature of his own behaviour toward [B] or towards her mother is difficult to determine. However, [Ms D] says his presentation would suggest he could behave in a way the children would find frightening.
[B] has said she finds his changeable moods intimidating. She has repeated this on a number of occasions to interviewers including Child Protection in January 2014, the Family Consultant in May 2014, [Ms D] in 2014 and during interview for this report.
Despite having had a close attachment in the past she says she cannot think of anything positive about him. This black and white thinking can be interpreted as a psychological defence mechanism when the child is fearful of consequences attached to any other way of thinking. This can occur because of fear of abandonment or loss of affection.
[B] may have developed this way of thinking in response to her mother’s hypersensitivity about the father, including having observed her mother’s reaction to any remarks made about her father’s behaviour. Other factors which may affect [B’s] level of anxiety can include persistent inter-parental conflict; being held over unexpectedly by the father; an emotionally unavailable mother when she abused illicit substances or prescription medication and a less than fruitful introduction to her biological father.[3]
[3] Family report of Ms E, family consultant, dated 4 August 2015 at paragraphs 82 – 85.
At paragraph 87 of her report Ms E states:
[B] is clearly unsettled by what she perceives as her father’s changeable moods. However, it is in the interests of her longer term welfare that she continue a relationship with him. This would be better to establish before [B] approaches adolescence when she will want more time with peers and less time with her parents.
B (aged 10 years 10 months) told Ms E that she is in Year 5 at J School where she has been attending for about two years. She can walk to school and has lots of friends. She plays with the next door neighbours when she visits her father. She told Ms E:
I want to spend more time with my Mum. Because every time I go over there ([Suburb H]) I always get stressed out and like I get nervous and I don’t like being stressed out – because he shouts at me and stuff and I get paranoid…like all the pressure – I’m scared he’s going to do something to me…like when I’m with my Mum I’m calm…
At paragraph 64 of Ms E’s report she states:
When asked whether there was anything good about [the father] she said “No – not really”. She says sometimes he is happy and other times he is angry and sad and she is nervous about what he is going to do. She says sometimes he is happy when they talk on the telephone, but he can have an angry tone in his voice.
B told Ms E that she wants to live with her mother all the time. The family consultant noted that when B was asked about what her mother “would be happy with” she stated that her mother would be happy with whatever B decided and “she’s fine with anything. She’s always happy”.
In cross-examination, the family consultant was of the opinion that recreational time with both parents is important. Her concern was that B seemed more reluctant than C to spend time with the father. Ms E stated that her preference was for every alternate weekend to be spent with the father and she suggested that B might enjoy spending time separately on the weekend with the mother whilst C was in the care of the father. However her evidence was that for the children to spend time with the father every three weekends out of a four week cycle would involve a lot of travelling for them and that this would impact on both of them. In particular, her evidence was that the travelling would be onerous for C at his young age. She considered that the travelling might not be so onerous for B now but that as she matures it may become an issue. She considered that both children have friends as well as social and extra-curricular activities in both places but emphasised that both parents need to recognise this as the children mature and re-iterated that the children will want to spend more time with their peers.
Ms E stated that B is a bright girl and performing well at school. Her evidence was that B was “definite in her views” about spending more time with her mother and preferring to reduce the time she spent with the father.
She pointed out that there had been a lot of change for B and that she does need to have consistent contact with the father but that orders which locked in the children to three weekends out of four might be too confined. She agreed that it would be inappropriate to have the matter return to Court should the arrangement be unsuccessful and certainly not in the best interests of the children if a three weekend arrangement had to be changed according to the children’s views and the father was not prepared to agree to this.
Ms E spoke with Ms D, whom the family saw for reportable counselling, before finalising her most recent report and accepted her views. She agreed that it would be difficult for the mother to negotiate with the father if the children were resisting the travel or there were other reasons why B did not want to spend time with the father three weekends out of four during school terms.
The family consultant stated that when she interviewed B on 24 July 2015 she told her that she was fearful when she visited her father. Ms E highlighted the distinction between B’s disposition towards the father in social settings such as at a school concert or at church, and B’s attitude towards the father when she is alone with him at Suburb H. She stated to the father that “she is more nervous when she saw you by herself in the general domestic environment of your house at [Suburb H]”. In response to questions posed by the father about the mother’s influence upon the children and concerns about denigration of the father referred to in the s 91B response, Ms E stated that B knew what she was saying and that she did not think any particular person had influenced her. She stated that B told her that the father was shouting at her. Ms E also referred to the s 11 F report of Ms K prepared on 15 May 2014 and emphasised that the father was being observed in a therapeutic environment. She stated to the father that “my understanding is that her fear is when you are by yourselves... in your house... she said she was afraid to be in those – in that circumstance... when you visit your father, presumably she’s in your house. That is when she’s fearful.” She stated that B was clear that it is when she visits her father that she is fearful of him when she is at home with him.
Ms E referred to paragraphs 63 and 64 of her report and was not prepared to concede that B had been influenced by the mother in her views. She stated that the father was suggesting that the mother had “brainwashed” B but that this was not evident here. She stated that B is intimidated by the father alone and is frightened and thinks that he is “explosive”. Ms E stated that B told her that her mother would be happy for the children to visit the father.
Ms E pointed out that at the moment, B feels uneasy about the alternate weekend arrangement and that she has had to consider that B has been consistent in her views with other people. She confirmed that she was resistant to the proposal of the father spending three weekends out of a four weekend cycle with B because of B’s views and that it would be a long laborious process to make an order in accordance with the father’s proposals on the basis that the mother could return to Court if it was unsuccessful in the implementation. It was her clear view that the default position for the spend time weekend arrangements during school term should be every alternate weekend and that other arrangements might be made by agreement between the parents.

Evidence of other witnesses relied on by the father

Section 91B response from the Department of Human Services (“DHS”)

The father relied upon information provided in a report from DHS dated 13 December 2013 (the s 91B response) which was obtained in response to a request by Judge Riethmuller in the Federal Circuit Court. The report was completed by Ms L, DHS.
This report is untested evidence. That report noted that DHS did not propose to intervene in the proceedings but provided information to the Court. The report refers to reports of ongoing family violence, parental conflict and exposure of the children to the mother’s substance dependence and mental health. There were allegations of the children having been exposed to ongoing family violence from both parents and counter allegations made by each parent regarding the children not being safe and well cared for in the respective parent’s care. The children were interviewed in that report on 6 January 2014 and C refused to leave B to be interviewed separately.
That report indicates that B disclosed verbal and physical abuse perpetrated by the father towards her and the mother. In respect of her father, B stated:
“I feel scared to see him; he used to hit us and scream at us”. [B] according to that report disclosed that her father used to “hit us everywhere with a hand or spoon”. She also stated that her father was always screaming and would get angry if things weren’t cleaned up. She stated that “one time he broke a wooden spoon” and “threw his phone on the ground”. [B] stated “he’s always angry” and “when he’s happy I was scared at any moment he was going to get angry”. [B] further informed the worker that [the father] would hit [C] whilst he was toilet training him.
She told the worker that she believed the angry outbursts would occur every second day or every day. B stated that the parents used to fight once or twice a month. B advised that she feels “happy and safe in [the maternal grandparents’] house”. B also referred to having flashbacks of the father hitting her and that when he hit her there “used to be a mark on my leg, he hit me with his hands a few times at once”.
The report stated that the professionals have not raised any significant concerns for the mother’s mental health or substance use nor in respect to the current welfare of the children.
The report noted that the children’s attendance at school was regular and there were no concerns identified regarding C or B.
The report recommended that the children continue to live with the mother in the home of the maternal grandparents but expressed concerns that should the current family and community supports cease, then the mother’s capacity to care for the children, given a longstanding pattern and history of mental ill health and substance abuse, might deteriorate. The report noted that the mother is “currently engaged with professional support in respect to family violence and mental health”.
The father relied upon a reference in that report to concerns of DHS about the mother’s influence on B’s wishes and denigration of the father. The report indicated that these concerns have been discussed with the mother and it was strongly encouraged that B be linked into the M Centre for individual counselling in respect to previous exposure to emotional and physical abuse and to ensure her wishes are documented outside of the family network. The report concluded that there was no further role for child protection due to professional services involved with the family and their capacity to monitor and contact child protection if any further concerns were identified for the children’s safety and wellbeing.
After the agreement was reached by the parties and the Independent Children’s Lawyer, there was no reference to sexual assault raised by either party or the Independent Children’s Lawyer.

Evidence of Ms N

The father relied on the affidavit evidence of Ms N, the Sunday School Coordinator/Teacher at the Suburb F Church where the family has attended since 2008. Ms N is a social worker currently working as a self-employed contractor. She was not cross-examined.
Counsel for the Independent Children’s Lawyer submitted that she is not an independent expert witness, given that she knows the parties and the children socially. I ruled that her evidence is not admissible as an expert opinion for the purposes of this proceeding but that her evidence is admissible if confined to her observations of the parents and children in the social setting to which she deposes.
Her evidence of observing the family was not challenged and I accept her observations of the children in the company of the father in social settings.
To the extent that she expressed any opinion about the best interests of the children I do not accept that opinion, as her evidence was not admitted as expert evidence under the Family Law Rules 2004 (Cth).
The effect of her affidavit evidence was that she has known the parents and children since 2008 when the family began attending the Suburb F Church where she is the Sunday School Coordinator/Teacher. She deposed that the father and family attended Sunday worship services and church social activities from 2008 and that the father regularly attended the church with the children when separated from the mother in 2010 and 2011. She deposed that the parents consistently attended church again as a family when they reconciled in November 2011, until the breakdown of their relationship in September 2013. She deposed that throughout this time the children attended Sunday School on a weekly basis and that the father has continued to maintain his attendance at the church with the children when they spend time with him. She deposed that the father is a loving and dedicated father to both children and that he has a close “positive fathering relationship” with both children and that they are very attached and affectionate towards him. She deposed to having observed the father inviting C’s friends and extended family to the home to ensure that C was maintaining contact with aunts and uncles. She deposed that she observed B to enjoy her time in the company of the father and that the children appeared to be happy with him. She deposed to having observed the father actively playing and interacting with both children, taking them on picnics, social outings and movies and participating in outdoor play at playgrounds with both children. She observes that he has been a “hands on” father who has provided well for the children’s daily needs and observing that the father is competent in preparing healthy meals and undertaking household activities. She deposed that the father has developed a positive community support network for himself and the children and that he has maintained friendships with other families who have children of a similar age and that he has close friendships with church families who have children. She deposed to having observed that the father has developed and maintained friendships with other families from the Country O community with children of a similar age to B and C.
She deposed to having observed that the father has a supportive extended family and that the paternal grandmother, uncles and sisters-in-law have stayed overnight in his home at Suburb H.
Commenting upon the father’s information to her that B has stated that she is fearful of him, Ms N deposed that both children have been observed by her to have a close positive loving parent/child relationship with the father. She deposed that she has never observed B or C being fearful of the father or uncomfortable with him. On the contrary she has observed the children to be happily playing with him.

The evidence of Ms N’s observations is unchallenged and I accept the evidence of her observations of the children in the company of the father at home and at church. However I do not accept her expertise to provide an opinion as to whether B wishes to spend less time with the father under the current arrangements for spending time with the children. There is an obvious difference between the quality of the relationship between the father and the children in a social setting and at church from that which might apply in a domestic environment when he is alone with the children.

Evidence of Ms P

The father also relied upon the affidavit evidence of Ms P, the supervisor at the family contact service where the father spent time with C between 15 December 2013 and 19 January 2014 on regular Sundays and Wednesdays for a period of approximately five hours on each occasion. She was not cross-examined. The focus of this unchallenged evidence was C.
The conclusion of the contact service provider was that the contact between the father and C was “positive overall” and that the father had provided the child with quality time on all occasions. The report noted that the father has provided stimulating planned and age appropriate activities for C always asking his son what he wanted to do. The report notes that the father was able to demonstrate positive parenting skills including attending to C’s physical and emotional needs, ensuring his safety and wellbeing and being child-focussed during his session times. The report notes that the father has been punctual and prepared, calm and focussed during all of his sessions. The report records that “the writer has never assessed [the father] as being a risk to C or lacking impulse control during his time spent with his son”. The writer noted that C was observed sharing a familiar bond with the father and always demonstrated a willingness and enthusiasm towards seeing him.
The supervisor noted that C shared a very loving relationship with both parents and with his maternal grandmother and extended maternal family. She reported that the mother had been observed to be a very protective and loving mother and had always presented C immaculately dressed and ready to see his father.
The supervisor recorded that she had never observed either parent to be drug or alcohol affected at any session.

Findings

I accept the expert opinion evidence of the family consultant Ms E and her recommendations. Ms E’s opinion has been informed over time in her numerous assessments of the family since 2010. She has extensive experience with the family having prepared three reports in that five year period. The advantage of her latest report is that her assessment was made only about one month before the trial. In particular I accept her evidence about B’s views and her apprehension about spending time with the father. I accept that B’s views are her own and that the mother has not influenced B to tell the family consultant that she wishes to spend less time with the father.
Of significance is the recommendation in her report that both parents take into account the extra-curricular and social preferences of the children when making arrangements for spending time with them. This recommendation is particularly relevant in terms of the father’s proposals regarding weekend term time to be spent with the children. As the children mature it is likely that they will seek to spend more time with their peers on weekends and whilst they have friends in both places, a shared weekend arrangement is more appropriate to give effect to those activities. Both parents sharing equally in the school holiday time with the children and sharing equally in the weekend school term arrangements will promote considerations around the extra-curricular and social preferences of the children.
I accept the evidence of Ms E that the mother is vulnerable to the demands of the father. I accept Ms E’s evidence that she agrees with the observations of Ms D which indicated that in October 2014, the mother and father “demonstrated ingrained dysfunctional interaction patterns”. I accept the observations of Dr Q, the psychologist who assessed the father in 2013 that the father had an entrenched psychological condition which he believed required treatment. There is no updated evidence since then, adduced in the trial, about the father’s psychological condition.
The mental health assessments of both parents are dated. When the father opened his case he relied upon an affidavit of Psychologist Dr Q, who assessed him in December 2013. The father ultimately did not rely upon this evidence for the remaining issue for determination in the trial. The evidence of Dr Q remains untested. The father also relied upon the affidavit and assessment of the mother conducted by Dr Q and filed on 10 March 2011 in the Federal Circuit Court. Dr Q noted that the mother presented with mild features of anxiety and depression and an adjustment disorder and attendant opiate abuse. It was noted that should the mother be able to control her opiate use, there should be no impediment to her ability to care for the children. This evidence is untested. Ms E relied upon those reports in her latest report and earlier report in 2011 and they form part of the background information in her reports. I accept Ms E’s assessment of the father and the mother based on those reports and her own observations.
There was a lack of evidence about the current mental health of both parents and neither parent asserted that mental health featured as an issue relevant to spending time arrangements for weekends during school term. As the parties arrived at their own agreement surrounding the major parenting issues during the trial, which were supported by counsel for the Independent Children’s Lawyer, mental health issues were not explored any further in evidence. I am not in a position to make any findings about the current mental health of the parents. Suffice it to say that there is no suggestion that either parent does not have the capacity to adequately care for the children under the current arrangements. Where I have referred to mental health issues it is based solely on the evidence of Ms E which referred to historical assessments.

Assessment of the parents

I accept the family consultant’s assessment of the parents in the following terms. Ms E reported that the father has had periods of mental health fragility and has attended counselling for support when he felt the need. She reported that Dr Q’s report indicates that mental health treatment should continue to enable the father to adjust to his family circumstances. She reported the following:
The father has an entrenched view of the mother’s mental health that shows little evidence of changing. Unfortunately, this does not auger well for the parents developing a cooperative relationship. [Ms D] observed him to be rigid, uncompromising and focussed more on having control over [the mother] and the children, than on the welfare of the children.[4]
[4] Family report of Ms E, family consultant, dated 4 August 2015 at paragraph 80.
She concluded that the mother and father both appear to be able to care for the children adequately. However it was her opinion that the parents’ insight into their behaviour is limited. She also noted the observations of Ms D in October 2014 that the mother and father demonstrated “ingrained dysfunctional interaction patterns”. She noted that Dr Q also observed an entrenched psychological condition in the father which he believed required treatment. She recommended that both parents would benefit from therapeutic intervention from a mental health practitioner.
In relation to the mother, Ms E noted that the mother’s mental health appears to be moving in a “positive direction” but will require monitoring. Although, as previously stated, Ms E concluded that both parents appear to be able to care for the children adequately, she also noted that the mother’s capacity to care for the children without the practical and emotional support of her parents is untested.
I find that the s 91B response provided by DHS to the Federal Circuit Court is untested evidence but of historical relevance. It corroborates the evidence of Ms E about B’s views but whilst I accept the submission of the father that the response refers to the influence of the mother, I do not accept that this is evidence of the mother having influenced B in her recent views expressed to Ms E. This is because I accept the evidence of Ms E that B’s views were her own. It is common sense that both parents might influence the views of the children but I have placed weight on the consistency of B’s views and the report of Ms E which is more contemporary.
The parties did not make submissions regarding the alleged history of family violence relevant to the remaining issue for determination in the trial. Accordingly no finding is made about the competing historical narratives of the parties about whether there was any family violence during their relationship. The mother was not cross-examined by the father because of the parties’ agreed position regarding the time to be spent by the children on weekends during school term. However the father denied that he had ever been controlling towards the mother and maintained that he had in fact empowered the mother. The mother did not disagree with this proposition.
On the basis of the evidence of the family consultant and my observations of the parties during the course of the trial, I am satisfied that the mother is vulnerable to demands that may be made by the father and that she is likely to accommodate the demands of the father without considering the impact on the children. I accept the submissions of counsel for the Independent Children’s Lawyer in this regard.
The father also relied on the previous reports prepared by Ms E in 2011 and 2010. These reports provide context for the father’s concerns about the mother and whether she has successfully rehabilitated. I accept that the father’s concerns about the mother’s history of drug abuse and mental health are not without foundation. These earlier reports described the mother as having to maintain abstinence from illicit drug consumption and comply with the recommendations of her treating mental health professionals in 2010 and as having made some improvement but having a history of erratic compliance with treatment and support services in 2011. On the basis of the latest report in 2015 I am satisfied that the mother has rehabilitated, is supported by the maternal grandparents and is improving, having secured employment for four days per week. I find that there is no reason to question the capacity of the mother to care for the children on weekends under the current arrangements during school term or in the capacity of primary resident parent. Given the mother is now working on weekdays, weekend time with the children becomes more important in terms of her relationship with the children.
I accept the evidence of Ms P, the supervisor at the family contact centre where the father spent time with C for approximately one month concluding on 19 January 2014. There is no issue that the father has a close and loving relationship with C and this is supported by the observations of the supervisor over a one month period.
I accept the evidence of Ms N about the observations of the interaction between the father and the children in social situations. Her evidence supports the father’s case that he has the capacity to adequately provide for the children when they spend time with him and that they are happy in his company in social circumstances.

The Relevant Law

In deciding to make any parenting order the child’s best interests must be the paramount consideration under s 60CA of the Act. In determining what is in the best interests of the child, the Court must consider the primary and additional considerations set out in s 60CC(2) and s 60CC(3) of the Act. Any determination of what is in the best interests of the child must be made in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.

The primary considerations

The primary considerations contained in s 60CC(2) are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the primary considerations, greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[5]
[5] Family Law Act 1975 (Cth), s 60CC(2A).

Abuse and family violence

Ultimately there are no allegations advanced by the parties or by counsel for the Independent Children’s Lawyer of sexual abuse, assault, family violence or neglect of the children relevant to the determination of the issue in this trial other than by way of background outlined previously.

Conclusion about the primary considerations

I accept the evidence that B has expressed some apprehension about spending time with the father at his home. There is no evidence of the father physically or psychologically harming the children, abusing them, neglecting them or exposing them to family violence since the parties separated. There is a disputed history of family violence during the marriage but the mother, counsel for the Independent Children’s Lawyer and the family consultant hold no concerns for the children spending time with the father on weekends and for half of the school holidays. The real issue is whether it is in the best interests of the children for the father to spend time with the children for three consecutive weekends out of four during school term rather than the current alternate weekend arrangement. On the evidence before me the children already have a meaningful relationship with both parents under the current arrangements.
I am satisfied that the proposals of the father that he spend three weekends out of four during school term with the children would not be in their best interests. C is settled living with the maternal grandparents and the mother under the current arrangements but B wishes to spend more time with the mother.

The additional considerations

The additional considerations are listed at s 60CC(3) of the Act. I have referred to only those which are relevant to the facts and circumstances of this case.
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 is an additional consideration relevant here under s 60CC(3)(a).
I have referred previously to the views of the children but particularly B expressed to Ms K, Child Protection in DHS, to Ms D and Ms E. I accept the opinion of the family consultant in evidence that B’s views should be given some weight. B has been consistent in her views when interviewed by numerous professionals. I do not accept the father’s case that B has been influenced by her mother to say these things to professionals on numerous occasions. I particularly take into account and place some weight on what B has told the family consultant about one month before the trial.
The nature of the child’s relationships with each of the child’s parents and other persons (including any grandparent or other relative of the child) is a relevant additional consideration under s 60CC(3)(b).
The children have a good relationship with both parents but at times B has made concerning reports about the conduct of the father. These have been investigated by the authorities and no further action taken. I accept the evidence of Ms E that both children were at ease with their mother. The family consultant noted that “[t]hey seemed very at ease with their maternal grandmother and mother”.
There were no concerns raised in the evidence about the parents failing to take the opportunity to participate in decision-making about major long-term issues in relation to the children or failing to spend time with or communicating with them.
For the sake of completeness, there was no submission made about the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children under s 60CC(3)(ca).
The mother has always supported the children financially with the assistance of the maternal grandparents. The father conceded that he has never contributed towards the children’s school fees and has not paid any child support because the mother has not made any request of him. The father made no reference to financial issues in his trial affidavit.
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 is a relevant additional consideration under s 60CC(3)(d).
The children began to spend each alternate weekend with the father when the interim orders were made in June 2014. However B has clearly expressed a view that she wishes to reduce the time that she spends with the father.
I am satisfied on the evidence of the family consultant that B’s views are her own and that she has not been influenced unduly by the mother in the reports that she has made to the professionals over time.
I have considered whether B should spend less time with the father than under the current arrangements but consider that this is unnecessary having regard to the opinion of the family consultant and the submissions of counsel for the Independent Children’s Lawyer.
The practical difficulty and expense of the 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 is an additional consideration under s 60CC(3)(e).
There is a practical difficulty related to the children spending time with the father three weekends out of a four weekend cycle during term time. This is because of the geographical distance between the parents. The travel time after school to the home of the father is approximately 90 minutes and I accept the evidence of the family consultant that this would be onerous for C having regard to his young age. There are also practical issues concerning any extracurricular activities at the children’s school during school term on weekends. I am not satisfied that the parents would be able to satisfactorily negotiate the increasing demands around these activities having regard to the history of conflict between them and the concerns raised by the family consultant. The family consultant specifically noted that the mother and father should take account of the children’s preferences for extracurricular and social activities.
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 is a relevant additional consideration under s 60CC(3)(f).
The mother is untested as to her capacity to care for the children without the practical and emotional support of her parents but I accept the evidence of the family consultant that the mother’s mental health, while requiring monitoring, appears to be moving in a positive direction. I accept the evidence of the family consultant that the children have settled in well at school and B is performing well academically. It is Ms E’s opinion that the children have experienced some upheaval over the past few years but that the stable environment in which they are currently living should continue. This includes the support of the maternal grandparents.

I accept that the extended family of the father are also important for the children and this was not in dispute. However the maternal grandparents are significant figures in the lives of the children and they have been consistently supportive since the children’s births.
Having observed the father throughout the trial, I accept the evidence of his attitude as described by Ms D and Ms E as “controlling”. Despite the fact that the mother was particularly compliant and prepared to change her narrative during the trial to support the ultimate proposals of the father, he was not prepared to contemplate a default position which maintained the existing arrangements for spending time with the children on alternate weekends during school term. He was not prepared to accept the veracity of B’s views as expressed to the family consultant one month before the trial and accordingly was not prepared to take account of them in his proposal. This reflected poorly upon his capacity to provide for the emotional needs of B. He was also not prepared to take account of the practical difficulty in the extended travel time required to support his proposal. He took no account of the onerous travel involved for C having regard to his younger age.
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 is an additional consideration under s 60CC(3)(g).
The father submitted that it was important for the children to spend time with him on three consecutive weekends out of four during school term to ensure that the children remain connected with their extended family in Suburb H and that the children have an opportunity to appreciate his culture. Apart from this submission there was no evidence about any cultural issues for the father. I accept the importance of the evidence that the children have attended church in Suburb F from an early age and during the marriage. There was no issue that the children should continue to attend that church where they have developed friendships within the congregation. There is no evidence that the children have suffered as a result of the existing alternative weekend spend time arrangements and the family seems to have adjusted well to the current regime.
B enjoys extra-curricular activities such as gymnastics in the vicinity of her father’s house on weekends but remains apprehensive when visiting him and seeks to reduce the time she spends with him. I reject the submission of the father that B’s attitude may be explained by the difference in parenting styles adopted by the parents.
B has been consistent in explaining this attitude to different professionals for some time.
The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents is a relevant additional consideration under s 60CC(3)(i).
The father conceded that the mother has been flexible at times in assisting with transporting the children for his benefit to spend time with them, notwithstanding that this was not required under the Court orders. There was no other evidence of the parents’ attitude towards the children and their responsibilities as parents which is determinative of the remaining issue between the parties.
Any family violence involving the children or any member of the children’s family and family violence orders are additional considerations under sections 60CC(3)(j) and (k).
There was insufficient evidence about family violence for this to feature in the determination of the spend time arrangements during the weekends of school term. Neither party nor counsel for the Independent Children’s Lawyer raised this factor other than by way of background where it was agreed that the parties had a volatile relationship. At the commencement of the trial there was no issue that the parents would share equal parental responsibility and that both parents should spend significant and substantial time with the children. There was ultimately no assertion that there was any risk for the children in the care of either parent.
There was no controversy that any intervention orders which had been made in the past had expired. There was no evidence about the making of intervention orders to draw any inferences and there were no submissions made about any intervention orders.
The father conceded in cross-examination that he had a non-conviction penalty imposed for breach of an intervention order but there was no evidence adduced of the circumstances surrounding this.
The parties and counsel for the Independent Children’s Lawyer did not address family violence ultimately as they agreed on all the other parenting issues during the course of the trial and before the mother was cross-examined by the father. The background issues relating to family violence have not been raised as relevant or of concern regarding the remaining parenting issue for determination here.
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 is an additional consideration under s 60CC(3)(l).
These parties have been conducting litigation involving the children for five years in the Federal Circuit Court and in this Court, albeit with a cessation between November 2011 and October 2013 during the parties’ reconciliation.
On the totality of the evidence, it is important that the stability of the current arrangements for spending time with the children is maintained. B’s apprehension needs to be addressed and this will not occur if she is required to spend time with the father each weekend in three out of four weekends during school term. I have determined to maintain the current arrangements on the basis of the importance of the relationship between B and the father referred to by Ms E having regard to the significance of the child’s age, notwithstanding B’s reservations. This will be balanced by the living arrangements for the children with the mother during school terms which is important to rectify any insecurities resulting from the earlier periods of time when the mother was absent undergoing rehabilitation.
There is a presumption of equal shared parental responsibility under the Act. The parties agreed to equal shared parental responsibility for both children at the outset of the trial. This was also recommended by the family consultant, Ms E. Although there were historical allegations of family violence during the marriage, neither the mother nor counsel for the Independent Children’s Lawyer sought to rebut the presumption by seeking a finding of family violence. There was no evidence before the Court to be satisfied that it would not be in the best interests of the children for the parents to have equal shared responsibility to rebut the presumption. Accordingly, final parenting orders were made by consent which provided for equal shared parental responsibility.

Equal time

Under s 65DAA(1) of the Act if a parenting order provides that a child’s parents are to have equal shared parental responsibility, the Court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
I am satisfied that it is not in the best interests of the children to spend equal time with each parent during school term. The parents are living some distance apart which would involve a return trip of approximately three hours in total if the father were to spend time during a week night after school with them. It was conceded by the father that for practical reasons, the children should live with the mother during school term. I am satisfied that because of the geographical distance between the parties’ residences, it is not reasonably practicable for the children to spend time with the father on weekdays during school term.
I am obliged to consider whether it is in the best interests of the children and whether it is reasonably practicable to spend equal time with each parent. No such proposal was advanced by either parent or the Independent Children’s Lawyer. It was accepted that the distance between the residences of the parties is a practical impediment. I also take into account that B wishes to reduce the time spent with the father under the current arrangements.

Substantial and significant time

A child will be taken to spend substantial and significant time with a parent only if :
(a)the time the child spends with the parenting includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays;
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.[6]
[6] Family Law Act 1975 (Cth), s 65DAA(3)
Where the Court does not make an order for the child to spend equal time with each of the parents and a parenting order provides that the child’s parents have equal shared parental responsibility, there are mandatory factors to be considered. Under s 65DAA(2) of the Act these are as follows:
(a)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
In determining what is reasonably practicable the court must have regard to the following factors:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.[7]
[7] Family Law Act 1975 (Cth), s 65DAA(5).
For the same reasons outlined earlier it is not in the best interests of the children, nor is it reasonably practicable to provide for substantial or significant time with each parent.

Conclusion

I have taken into account the parents’ current and future capacity to implement the arrangements for the children spending equal time, or substantial and significant time with each of the parents. The current arrangements have not been entirely successful having regard to B’s wishes to reduce the time spent with the father. There does not appear to be any reason why the current arrangements are not in the best interests of C. On the evidence of the family consultant there is no reason consistent with the best interests of the children to increase the amount of time the father spends with the children each month during school term to provide for three weekends out of four.
The fact that the mother is working on weekdays means that it is also important for her to spend time with the children on weekends during school term.
The children have a good relationship with the father generally and the family consultant does not recommend any reduction in the time B spends with her father each alternate weekend. However she does highlight the need for both parents to focus upon the children’s needs regarding social and extra-curricular activities.
In his submissions the father was concerned to make up for time when he did not see the children in the past. I accept the evidence of the family consultant that this historical aspect is not an impediment to a meaningful relationship between the father and the children, and do not propose to make an order providing for historical make-up time.
I am satisfied that it is not practicable for the father to spend time with the children for three consecutive weekends out of four and that it would not be in their best interests to do so for the reasons previously outlined. I accept the submissions of counsel for the Independent Children’s Lawyer and the evidence of the family consultant.
I propose to make orders for the father to spend time with the children each alternate weekend from 7.00 pm on Friday until the commencement of school on Monday or the commencement of school on Tuesday if Monday is not a school day. The mother expressed agreement with the father’s proposal but ultimately deferred to the Court. She expressed confidence that the father would be flexible in the future regarding discussions about the weekend arrangements during school term. I do not necessarily share that confidence but on the contrary, I am satisfied that the mother is prepared to be flexible in her attitude towards the father should the children wish to spend additional time with him on weekends during school term.

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 4 November 2015.

Associate:

Date: 4 November 2015

Annexure A

The applicant father relied on the following documents:

Affidavit of the father dated 10 August 2015;
Affidavit of Ms P dated 23 January 2014;
Affidavit of Ms N dated 10 August 2015;
Affidavit of Dr Q dated 10 March 2011;
Department of Human Services s 91B response pursuant to orders of Judge Reithmuller on 13 December 2013;
Section 11F report by Ms K, family consultant, dated 15 May 2014;
Family reports by Ms E, family consultant, dated 23 November 2010, 15 March 2011 and 4 August 2015.

The respondent mother relied on the following documents:

Affidavit of the mother filed 14 April 2015 - Annexure MD1; and
Family report of Ms E, family consultant dated 4 August 2015.

The Independent Children’s Lawyer relied only upon the Family Report of Ms E dated 4 August 2015.

[2015] FamCA 944

4 November 2015

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Appeal

Costs

Discovery

Injunction

Remedies

Stay of Proceedings