Noel and Cox - [2012] FMCAfam 55

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NOEL & COX

[2012] FMCAfam 55

FAMILY LAW – Parenting issues – assessment of competing proposals.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA
Domestic and Family Violence Protection Act 1989 (Qld)

Applicant:

MR NOEL

First Respondent:

MS COX

Second Respondent:

INDEPENDENT CHILDREN'S LAWYER

File Number:

BRC 1794 of 2009

Judgment of:

Jarrett FM

Hearing date:

16 December 2009

Date of Last Submission:

16 December 2009

Delivered at:

Brisbane

Delivered on:

24 January 2012

REPRESENTATION

The Applicant in person

Counsel for the first Respondent:

Ms Lyons

Solicitors for the first Respondent:

MacDonald Law

Counsel for the second Respondent:

Mr Burke

Independent Children's Lawyer

Malcolm Kennedy, Kennedy Spanner Solicitors

ORDERS

All previous parenting orders be discharged;
The mother and the father shall have equal shared parental responsibility for the children [X] born [in] 1997 [Y] born [in] 2000 and [Z] born [in] 2003.
That the children live with the mother at all times that they are not living with their father;
That the children live with their father at all times as might be agreed between the parties and failing agreement no less than:
(a)from 4:30 p.m. Friday until 4:30 p.m. Sunday, each alternate weekend;
(b)for one half of all school holidays periods being the first half in even numbered years and the second half in odd numbered years.
The children shall communicate with their father, between 6 p.m. and 7 p.m. on Wednesday of each week when they are not living with him, with the mother to initiate the call to the father’s landline telephone number.
Changeovers shall occur at such place as the parties shall agree in writing, and failing agreement the [omitted] Contact Centre, and in the event that the Centre is not available, at the southern end of the [omitted] City Mall.
To the extent that it is necessary to do so, the parties shall, within 14 days of this order, attend upon the [omitted] Contact Centre and complete any intake procedures required by the Centre. They shall share equally the costs associated with their use of that Centre.
This order acts as authority to the children’s school and treating health care practitioners to provide information, including written information such as school reports and newsletters, to each of the parents at the cost of the parent so requesting that information.
The father shall administer medication to the children as prescribed by their treating health care practitioners provided:
(a)the mother provides the medication so prescribed in its original packaging (including any box, bottle or other container in which the medicine is purchased);
(b)a copy of each prescription for such medication;
(c)the name and address of the prescribing health care practitioner, if not already evident from the material already provided by the mother.
The mother shall continue to engage with her treating health care practitioners to manage her mental health condition;
Each party shall keep the other informed as to their present residential address and landline telephone number and report any changes in those details to the other parent within seven days of such changes occurring.
Discharge the Independent Children’s Lawyer;
Otherwise all outstanding applications be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 1794 of 2009

MR NOEL

Applicant

And

MS COX

First Respondent

INDEPENDENT CHILDREN'S LAWYER

Second Respondent

REASONS FOR JUDGMENT

[X] (12 years of age at trial), [Y] (9 years of age at trial) and [Z] (6 years of age at trial) presently live with their mother, Ms Cox, the respondent in these proceedings. They presently spend time with their father, Mr Noel, each alternate weekend and for periods over the school holidays. Mr Noel and Ms Cox cannot agree on the parenting arrangements for [X], [Y] and [Z]. This application concerns those parenting arrangements.
Mr Noel says that the best orders for [X], [Y] and [Z] would be for them to live with him. In his initiating application filed on 3 March, 2009 and in his outline of case document filed for the purposes of this trial on 15 December, 2009, he proposed that the children should spend time with their mother at the [omitted] Contact Centre at times to be agreed between the parties. During the trial, Mr Noel thought that they might be able to have each alternate Saturday and Sunday at the centre with her. However, by the conclusion of the trial, that position changed in that Mr Noel accepted that his proposition might not be conducive to the boys having a proper relationship with their mother. Alternatively, he proposed that the children live in an equal time arrangement (week about) between each parent. He insists, however that the mother’s time with the children (under either proposal) be supervised by the maternal grandmother. He proposes telephone contact between the children and the mother on a regular basis.
In her outline of case document filed on 7 December, 2009 Ms Cox seeks orders that she have sole parental responsibility for [X], [Y] and [Z]. She seeks an order that they live with her. She proposes that the children spend time with Mr Noel “as the Court Orders”. By the conclusion of the trial that had been particularised as orders that [X] spends time with his father when he wishes to do so. Further, she says that the younger children should spend time with Mr Noel on the last weekend of each month, for not more than 7 days in their June/July, September and Christmas school holidays and for each alternate Easter weekend. She proposes telephone communication between the children and their father.
The children have the benefit of representation by an Independent Children’s Lawyer. He proposes orders that align, generally speaking, with the orders proposed by Ms Cox. Those orders align with the recommendations made by Ms B, a psychologist engaged by the Independent Children’s Lawyer who provided a family report for use in these proceedings.

Brief Background

The parties commenced their relationship in June, 1996. They finally separated in about February, 2007. Since May, 2007 Mr Noel has been in a relationship with Ms K and he presently lives in a four-bedroom home in [Suburb omitted] with Ms K and her two children, [Q] and [R].
Presently the children spend time with Mr Noel each alternate weekend from 5:45 p.m. Friday until 5.45 p.m. Sunday and during some of the school holidays. Those arrangements were put in place by orders made in the Magistrates Court of Queensland on 10 November, 2006. At all other times, the children live with Ms Cox.

Principles

Proceedings concerning parenting issues are conducted under Part VII of the Family Law Act 1975 (“the Act”). Section 60B sets out the objects of Part VII and the principles which underline those objects. Those principles and objects are subject to s.60CA in that in determining the outcome of a particular case, the best interests of the relevant children are the paramount consideration. That is the overriding principle.
Section 60CC prescribes the matters that need to be taken into account when determining what orders are in a child’s best interests. It comprises a list of matters that must be considered to the extent that each is relevant to the particular case.
Section 60B is important as it provides the context within which the relevant s.60CC factors are to be examined and ultimately weighed. The importance of s.60B varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive.
Section 61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility for their welfare. Section 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a child’s parent has engaged in:
a)abuse of the child or another child who, at the time, was a member of the parent’s family; or
b)family violence.
The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Application of the presumption triggers the application of s.65DAA (1) which requires the Court to:
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 for (including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides that if the Court does not make an order for equal time, the Court must consider whether the child spending significant and substantial time with each parent would be in the best interests of the child and whether such an arrangement is reasonably practicable. Substantial and significant time and reasonable practicality are defined in s.65DAA(3) and (5) of the Act.
In this case Ms Cox seeks an order for sole parental responsibility. Mr Noel seeks an order for equal shared parental responsibility. The Independent Children’s Lawyer makes no submissions about parental responsibility.
There are orders between the parties made pursuant to the Domestic and Family Violence Protection Act 1989 (Qld). There have been acts of family violence between these parties. I am satisfied that s.61DA(2) of the Act is engaged and the presumption of equal shared parental responsibility is rebutted. I will consider the incidence of parental responsibility after my consideration of the relevant s.60CC matters.

Consideration

Ms Cox was born in 1974. She is now 37 years of age. Mr Noel was born in 1971 and he is 40 years of age. Mr Noel is a [omitted] by trade and is employed on the Gold Coast, a 35 minute drive from his home at [Suburb omitted] just to the south of Brisbane. He has repartnered with Ms K with whom he lives.
Ms Cox is not employed. She lives in [Suburb omitted] with her mother. She has not repartnered.
Neither party suggests that [X], [Y] and [Z] will not benefit from a meaningful relationship from the other parent. Indeed their competing proposals are underpinned by an assumption that the children will derive a benefit from an ongoing meaningful relationship with each parent.
Mr Noel argues that the children at risk in their mother’s care. The risks are not well articulated in Mr Noel’s case, although they seem to be based upon the mother’s refusal to allow the children to see Mr Noel. He claims that the mother suffers from a psychological or psychiatric condition, that she is an habitual gambler and is erratic in her care of the children.
Ms Cox alleges that the children are at risk of physical and emotional harm in Mr Noel’s care because he is likely to be physically violent to them. She bases her argument upon what she says are her experiences of him during their relationship.
I have the benefit of a psychiatric opinion in respect of each of the parents commissioned by the Independent Children’s Lawyer from Dr V, Psychiatrist. Dr V examined both parents and reviewed the material provided to him by the Independent Children’s Lawyer. That material includes statements by the mother, the father, the maternal grandmother and Ms K. Dr V also had a family report prepared by a psychologist, Ms B. It does not appear that the material produced at Court pursuant to certain subpoenas issued by the parties and the Independent Children’s Lawyer was shown to Dr V.
In so far as Ms Cox was concerned, Dr V thought that there was no evidence of any psychological symptoms at the time of his examination. He thought that Ms Cox’s mental health history was consistent with a diagnosis of bipolar disorder - type 2. Dr V considered that her condition was in remission with treatment. Although Ms Cox reported past episodes of anorexia nervosa, panic attacks and self-harming behaviour, Dr V thought that those problems were related to a primary diagnosis of bipolar disorder. Dr V provided the following opinion:
“Bipolar disorder, if uncontrolled could have a disruptive effect on a patient’s family life as well as personal functioning. It is possible that Ms Cox’s mental health problems could have contributed to the very unsettled relationship she had with Mr Noel for eleven years.”
At present Ms Cox’s mental condition is stable with her current treatment. She has a good understanding of the nature of her condition and risk of relapse if she stops the treatment. According to Dr V a stable social environment was important in maintaining Ms Cox’s stability.
The evidence permits of a finding, and I find, that Ms Cox’s current medical condition bears no adverse effect on her parenting abilities in relation to her three children. Her current treatment is working well and she has a good understanding of her illness. The risk of relapse is low if she remains on treatment.
The evidence suggests that Ms Cox’s compliance with her treatment regime is good. Her living arrangements are stable. I accept that during the course of the parties’ relationship, which was characterised by many periods of separation, Mr Noel might well have perceived Ms Cox’s behaviour as unstable and unsettling. Her gambling and drinking problems were symptomatic of her bipolar disorder. I accept, however, the evidence that suggests that Ms Cox’s bipolar disorder is presently well controlled and that she has since separation been able to provide a stable home environment for the parties’ three children.
I am not satisfied that these children are at risk of harm by reason of being exposed to abuse, neglect or family violence by reason of Ms Cox’s psychiatric condition.
Dr V also examined Mr Noel. In respect of Mr Noel, Dr V considered there was no evidence of a mental disorder or personality disturbance. Dr V’s opinion was as follows:
“History as stated by Mr Noel as well as Ms Cox suggest a very disturbed eleven year relationship between them, between 1996 and 2007. Seems it was an on and off relationship with numerous disputes, many separations and physical altercations which Ms Cox described as violence towards her and Mr Noel described as his attempts to stop her from hurting herself.
Outside of their relationship Mr Noel does not appear to have an anger problem or other behaviour disturbances. He appeared to have a good work record, there is no history of violence towards others and he reports a stable and happy relationship with his current partner. Mr Noel has also been committed to looking after his mentally ill mother for some years.
Mr Noel admitted that he disciplined his children more than the mother but denied excessive discipline. He said that he smacked his children on very rare occasions (on three occasions in their lifetime) for bad behaviour like calling him a “f …cking prick” repeatedly. He said that his relationship with [X] deteriorated only after he was denied access to the children for about seven months.”
The evidence of the parties tends to suggest that their relationship was one where physical violence between the parents was not uncommon. Ms Cox gives very generalised evidence about the violence she claims she experienced at Mr Noel’s hands. Separation was precipitated by an incident of violence described by Ms Cox in her affidavit of 23 April 2009 at paragraph 13. I accept Ms Cox’s description of that event.
Ms Cox’s mother, Mrs N Cox, gave evidence in the proceedings. Her affidavit evidence too, is characterised by generalisation and broad statements about the violent nature of the father. There is little by way of particular evidence that assists me in determining the allegations of violence. She does allege however, and I accept, that during one of the father’s violent rages that he punched Ms Cox’s younger sister [T].
Mrs N Cox gave evidence that during the twelve years that Mr Noel and Ms Cox were together there were “numerous times” when Ms Cox would arrive “on our doorstep with the children, suffering bruises, swollen jaws and have hair ripped out. On other occasions I would, have to go to their house and remove Ms Cox and the children due to the violent and dangerous circumstances.” Presumably, I am asked to infer it was Mr Noel who inflicted the bruising and swollen jaws and the like and that he was creating the violent and dangerous circumstances from which the mother and children had to be removed. I decline to draw such an inference. For the reasons set out below, there is every reason to believe that the violence between Mr Noel and Ms Cox was instigated or continued by both of them from time to time, not just Mr Noel.
Mrs N Cox gives evidence about an episode that occurred in June, 2007 when she received a telephone call but there was nobody at the other end of the phone. She says that she could hear Mr Noel’s “violent rage” which lasted for about 30 minutes and that he was screaming and swearing at Ms Cox. She swears “we were both extremely worried as we couldn’t hear Ms Cox’s voice at all.” The reference to “both” is a reference to she and her partner. She does not suggest, however, that she was so concerned for Ms Cox’s safety that she needed to call the police. Her evidence suggests that she left it until the next day to drive to Ms Cox’s house to investigate what was going on. That delay tends to suggest that the episode was not as dramatic as Mrs N Cox would have the Court believe.
It is clear on the evidence that prior to 2007 Ms Cox had both a gambling and an alcohol consumption problem. She complains that Mr Noel was domestically violent towards her but his case is that he was acting in response to her behaviour that was occurring whilst she was drunk. He claims that when he tied to deal with her gambling problem with her she would react violently.
The evidence of each of the parties is of such a generalised nature that it is not particularly helpful. There is other evidence, however, that tends to suggest that the case of both parties is in some ways accurate.
Exhibit 5 is a bundle of documents produced on subpoena by the Queensland Police Service. Certain documents were tagged in that bundle by the parties and brought to my attention. The tagged documents record statements made by each of the parties to the Queensland Police Service in the course of the police investigating complaints about domestic violence. For example, on 24 December, 2002 the police investigated a disturbance at the parties’ residence. It is clear that the applicant and the respondent were involved in a violent disturbance. It is also clear that Ms Cox was extremely intoxicated and was mixing her alcohol with her anti-depressant medication.
Another example brought to my attention and recorded in the QPS documents occurred on 3 January, 2003. It also involved the mother being highly aggressive whilst drunk and having mixed her alcohol consumption with prescribed anti-depressants. The police records note a statement by Mrs N Cox “who lives in [Suburb omitted]” that supports Mr Noel’s assertion that Ms Cox was highly aggressive when drinking. It is of some significance, consistent with what Mr Noel asserts in these proceedings, that the notes record Mr Noel as admitting to “holding the aggrieved forcefully whilst trying to restrain her.”
Exhibit 6 is a bundle of documents produced on subpoena from the Department of Child Safety. There has been a significant involvement by the Department with this family over time. Of the documents in that bundle brought to my attention, there are some statements reported by each of the children, statements by Ms Cox, statements by Mr Noel and statements by Mrs N Cox. There are also statements by Ms K. In my view, the statements by the children are perhaps the most instructive. The relevant interviews with the children occurred in July and August, 2008 (after the parties had separated) and at that time both [X] and [W] reported to the Department of Child Safety that they witnessed episodes of violence perpetrated by Mr Noel on Ms Cox. It is also important to record, however, that they observed that their mother was drunk sometimes. They also observed that just as Mr Noel was given to yelling at them and smacking them as a form of discipline, so too was Ms Cox. Both children, however, and [X] in particular, expressed considerable concerns about the way in which Mr Noel yelled at them and used swear words towards the children on numerous occasions.

The children’s statements also touch upon their observations of Mr Noel and Ms K. Those observations by the children tend to confirm Ms K’s evidence that her relationship with Mr Noel is not one characterised by episodes of violence by him towards her.
Having regard to the above matters, I make the following findings:
a)The children are not at risk of harm (emotional, physical or psychological) by reason of being exposed to Ms Cox’s psychological or psychiatric condition as identified by Dr V.
b)The children are not likely to be at risk of harm (emotional, physical or psychological) by reason of being exposed to physical violence whilst they are in Ms Cox’s care.
c)There is a risk to the children of emotional or psychological harm by reason of being exposed to the way in which Mr Noel relates to the children and in particular the way in which it is recorded that he swears at them. It is clear that the children do not enjoy that experience and that it has affected them.
d)I am not satisfied that the children are likely to be at risk of harm (physical, emotional or psychological) by reason of being exposed to violence if they are to spend time in the care of Mr Noel.
e)I am satisfied that the violence described by the parties in a general way in their affidavits was violence which was born out of the nature of the relationship between Ms Cox and Mr Noel and consistent with Dr V’s opinion, it is not likely for that violence to continue.
f)The children are not likely to be exposed to a risk of harm by reason of neglect arising from any gambling or alcohol addiction that Ms Cox may have. I am satisfied by the evidence that she has taken appropriate, consistent and effective steps to deal with those issues.
The records of the Department of Families record that both [X] and [W] expressed a desire not to spend time with their father in that they were scared of him. I have already canvassed the reasons for those statements above. Since those statements, however, the children have by reason of interim orders made in this Court, spent time with Mr Noel.
I have the benefit of a family report prepared in these proceedings by Ms B, a psychologist. For the purposes of the preparation of her report she interviewed the children. During the course of those interviews [X] informed Ms B that he did not want to spend time with his father. [X] produced for Ms B a diary in which [X] claimed to have kept notes about certain events. Mr Noel expresses a considerable amount of scepticism about the diary and the extent to which the recollections set out in it are those of [X]. Mr Noel suggests that [X] has been “coached” by Ms Cox. I share those same suspicions. The nature and extent of the entries in the diary produced by [X] to Ms B do not seem to be consistent with the type of records that might be kept by a child of [X]’s age.
One of the events described by [X] to Ms B was an episode of violence between the parties that occurred when [X] says he was four years of age. The episode is also described by Ms Cox and she places its occurrence at a time when [X] was about 4 years of age. I express the same level of suspicion as Mr Noel does with respect to [X]’s claimed recollection of that event as described to Ms B when he was four years old.
Having regard to the statements to which I have earlier referred set out in the records from the Department of Child Safety and in particular the interviews with [X] that occurred in July and August of 2008 however, I am satisfied that an incident of some description occurred with [X] when he was young and which is generally described by him. It involved a violent interaction between an Ms Cox and Mr Noel. Whatever the nature of that altercation, it plainly has had some impact upon [X].
By the time of the interviews with Ms B, [X] said that his father still swore “now and then” but not as much. He thought that his father was “okay now, but not really”. [X] was critical of a number of aspects of the way in which Mr Noel related to him. He expressed concerns about not feeling safe with Mr Noel. [X] expressed the view that he should remain living with his mother in [Suburb omitted].
Dr A is a Paediatrician who has treated [X] in the past and who saw all three boys for the purposes of preparing a report to assist the Court at the Independent Children’s Lawyer’s request. [X] identified to Dr A occasional episodes of “domestic conflict between his father and his father’s partner Ms K”. He suggested to Dr A that on one occasion there may have been a degree of quite inappropriate physical contact between his father and Ms K. Further, Dr A opines that [X] conveyed having a good relationship with his mother and enjoyed the period when contact visits with his father were stopped. [X]’s enjoyment of this period, however, seemed to be based on the stability of his current environment and the need for changes of circumstances on weekends rather than anything more specific. [X] was positive about the time he spent with his father. He claimed that he had a good relationship with him and that his father’s environment was safe and stable. Dr A opined that [X] have a negative attitude towards a potential change in “custody” and thought that [X]’s underlying anxiety problem might render him more vulnerable to the impact of such changes.
[Y] reported that he wished to remain living in [Suburb omitted] with his mother as well. [Y] reported that his father still swore and got angry and when he started to yell his cheeks got red. He thought that Ms K was “pretty good” - she did not swear at him or push him. [Y] told Ms B that he would only like to see his father “if he wasn’t swearing, pushing him, getting angry and yelling and if this contact was somewhere safe.” He told Ms B that he did not want to stay over at his father’s house and that his father did not spend much time with him even when he was there.
In respect [Y], Dr A noted that he had been told that [Y] had some learning difficulties and the Doctor’s observations at the interview supported that information. [Y] conveyed a degree of comfort about living with his mother, although his recreational activities seemed to be limited to interaction with his mother and grandmother, brothers and the children in the neighbourhood. [Y] reported a tendency to have nightmares and to seek comfort from his grandmother when he did so. He was positive about the time spent at his father’s house, but Dr A:
“He was quite specific about identifying how disturbed he was at being witness to fights between his father, Mr Noel and his partner Ms K. Whilst these are usually verbal in nature, he saw one episode of physical altercation. He indicated that, otherwise, that environment was safe and happy.”
Dr A thought that [Y] had no medical problems which would influence the matters at hand, although his learning difficulties meant that frequent changes of schools would not be desirable for him.
[Z] told Ms B that his father sometimes gets angry at his mother and says “bad stuff to her.” He has heard his father call his mother names to her face. He reported that his father smacks him when he gets into trouble and flicks him on the back of the head although no context was given to that activity. [Z] told Ms B that he has fun at his father’s house sometimes when he has things there that he likes to play with.
I take [X] and [Z] expressions of wishes into account. They ought to be accorded some weight as they appear to be based experiences by the children that do not seek to have been isolated. Their wishes, however, are not determinative, but are just one of the factors to be weighed.
Ms B thought that [X], [Y] and [Z] had a strong emotional attachment to their mother.
As to the nature and extent of the relationship between the children and Mr Noel, Ms B observed:
“Results of the assessment of family contact indicate that [X], [Y] and [Z] feel comfortable with Mr Noel, although limited direct interaction was observed, as the children appeared to entertain themselves happily without his involvement.”
Ms B did not pass any direct opinion as to the nature and extent of the relationship between the children and their maternal grandmother nor Ms K. She does indicate “it is evident that these three children are comfortable in the presence of their primary caregiver, Ms Cox and their maternal grandmother, which is assisting their emotional and personality development.”
Ms B suggested that the children require residency arrangements that would enable them to participate fully in medical, social and hobby activities on a regular basis. She opined that they required a life that was structured as changes to their arrangements may cause significant impairment in the following areas:
a)Academic ability;
b)Social relationships which Ms B thought was increasingly important for personality and identity development; and
c)Ability to explore non-academic activities or hobbies and develop the associated skills.
Ms B thought, and I agree that [X], [Y] and [Z]’s current residential environment, academic and extra-curricular arrangements were stable. The evidence demonstrated that Ms Cox has been in a stable residential arrangement for some time and that she has been able to attend to the children’s needs. I have in evidence before me reports about the children’s academic progress at their current school for semester 1 in 2009. It is fair to say, I think, that the children and in particular [X] and [Y] are not stand-out students. Indeed it has been identified that [Y] has a slight developmental delay.
Before considering the balance of the matters set out in s.60CC of the Act, it is as well to set out some facts concerning the children’s care following the parties’ separation.
Following the orders made in the Magistrates Court of Queensland on 10 November, 2006 the children lived with the mother for about two weeks. On or about 29 November, 2006 Mrs N Cox contacted Mr Noel and asked for him to take the children because Ms Cox had disappeared. The parties agree that the children remained in Mr Noel’s care until 5 June, 2007 at which time Ms Cox removed the children from his care by collecting them from school. She did so without informing Mr Noel of her intentions.
The children started seeing their father again each alternate weekend and for some of the school holidays in accordance with the orders made on 10 November, 2006. Mr Noel took no steps to have the children returned to his care.
However, in July 2008, Ms Cox made a report to the Department Child Safety and she refused the children contact with Mr Noel. On about 8 October, 2008 the Department considered that the children were not at risk of harm in Mr Noel’s care and were not in need of protection. They notified him of that by letter.
Mr Noel commenced these proceedings on 3 March 2009 because he had not spent time with the children since 18 July 2008. On 27 April, 2009 I made interim orders which saw a reintroduction of the children’s time with their father over a four-week period and thereafter, reinstatement of the orders made in the Magistrates Court of Queensland in November, 2006.
Since the interim orders of April, 2009, the children have been spending time with Mr Noel in accordance with those orders. He makes no complaint about Ms Cox’s compliance with those orders, although he is concerned, as am I, that she chose to unilaterally enrol [X] in rugby league fixtures in [Suburb omitted]. That necessarily interfered with [Y]’s time with his father on the weekends when he was to be with him. To his credit, on the weekends that the children spend time with Mr Noel and [Y] has a football game, he drives from his home in [Suburb omitted] to [Suburb omitted] to collect the children on Friday evening. On Saturday, he drives to [Suburb omitted] (during football season) to allow [Y] to play football and then back again to [Suburb omitted] after the game. On Sunday he drives the children back to [Suburb omitted] at the end of their time with him.
Mr Noel also complains that Ms Cox will not provide to him a letter from the children’s doctor stating the medication that they are supposed to take whilst in his care. All he gets is a plastic bag with the medication in it. The boxes are not sent with the medication nor a copy of the prescription. She sends a note that says: “[X] knows what to do”. Further, I accept Mr Noel’s evidence that Ms Cox failed to tell him the name of the schools at which the children attended although he has that information now.
Apart from the hiatus between July, 2008 and April, 2009 Ms Cox has facilitated the children’s time with Mr Noel. Although he complains that the children’s relationship with him is not fostered and encouraged, and although I think there is some evidence to support those concerns, ultimately I am not satisfied that Ms Cox has been successful in damaging the children’s relationship with their father in any significant way. The evidence suggests that they have a good relationship with him. That must be because Ms Cox has managed to facilitate the time between the children and Mr Noel. The concerns that they harbour about Mr Noel’s household seemed to stem from their own experiences with him rather than from pressure from Ms Cox.
In my view, both parties are committed to the welfare of these children and they are committed to ensuring that the children have a relationship with the other parent. Mr Noel has demonstrated that by his commitment to these proceedings and to ensuring that the time between he and the children occurs notwithstanding what he perceives to be obstacles placed in his way. I note that there is no significant complaint about a failure on his part to provided child support for the children.
Neither party has given any indication that they intend to move their residence - Mr Noel from [Suburb omitted] and Ms Cox from [Suburb omitted]. Accordingly, there will always be a practical difficult difficulty in ensuring that the children move easily between the two households. There will always be a journey involved between [Suburb omitted] and [Suburb omitted]. That will necessarily impact upon the extracurricular activities that can be undertaken by the children on a regular basis, such as team sports. Neither parent suggests that the costs associated with such travel are prohibitive.

Conclusion – parental responsibility

Even though I have found that the presumption of equal shared parental responsibility has been rebutted by the episodes of family violence between these parents, I am satisfied that there ought to be an order for equal shared parental responsibility. Given the geographical distance between the children and the parent with whom they will not ordinarily live, it is important that they understand that that parent, although not close at hand is nonetheless a significant and important part of their lives. That can be demonstrated to them by them understanding that both parents have participated in the decision-making for them. That is especially so when it comes to extracurricular activities that have the potential to impact upon the children’s time with either parent.
I am not satisfied that the parties’ relationship is so difficult that they will not be able to communicate about important decisions for these children. In my view, the children’s best interests demand that decisions concerning major long-term issues for them, made jointly by these parents. I will make an order for equal shared parental responsibility.

Conclusions – living arrangements and orders

Given that I intend to make an order for equal shared parental responsibility, I must consider making an order that the children spend equal time in each of their parents’ households. Given the geographical distance between the parties” households, however, it is clearly the case that such an order would not be practical.
In my view, it is in the interests of each of these three children for them to remain living in Ms Cox’s care. That is the arrangement with which they are most comfortable and which, despite Mr Noel’s concerns, promotes stability for them. Although there are historical difficulties with Ms Cox’s care of the children, in my view, the evidence demonstrates that many of those difficulties have not been present for a considerable period of time. She has taken active steps to deal with the matters of past concern. In my view, the current arrangements should continue as they best serve the needs of these children.
Mr Noel seeks an order that Ms Cox continues to reside with her own mother whilst the children are in her care. Although one might think that that is the most desirable course, in my view the evidence demonstrates that Ms Cox does not need to be so restricted. I decline to continue the condition upon Ms Cox that she must reside with her mother whilst the children are living with her.
Ms Cox seeks an order that the children’s time with their father be limited to one weekend of each month. However, I am not inclined to so limit the children’s time. Although the travelling will be an impost upon the children, which will no doubt become greater as the children get older, it is important that their relationship with their father continues to grow and develop. A reduction in the amount of time is likely to provide an impediment to that.
Further Ms Cox seeks an order that [X] should only spend time with his father in the event that he wishes to do so. In my view, it is entirely inappropriate to permit a child of [X]’s age (he is now 14) to make decisions about whether he will continue his relationship with a biological parent in such circumstances as this. [X] will no doubt have many interests competing for his time, and given what I have already recognised as potentially inconvenient travel to see Mr Noel, such an order creates the potential that [X] may not make the best choice as far as his long term interests are concerned. It is important that [X] understands that it is necessary for him to spend time with his father. Such an order also has the potential to create expectations in the minds of the younger children that they too can decide if they will continue to visit their father.
In that respect, my orders do not coincide with the recommendations of Ms B. In my view, her recommendation is premised on an assumption which is not proved in the evidence namely, that [X] has the “cognitive capacity and …ability to make decisions for himself regarding contact with his father.” I am not satisfied that [X] has either the cognitive capacity nor ability to make those decisions himself.
Ms Cox seeks particular orders about Easter and Christmas Day. In my view, I should not make those orders. The children will spend those days with the parent with whom they are spending that part of the school holidays. That will mean that they will not spend those days with each parent every second year, but such an arrangement will enable the parents and the children to take extended holidays (particularly during the Christmas holiday period) without the impediment of having to return the southeast Queensland area to make the children available on those special days.
For the above reasons, I make the orders set out at the commencement hereof.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 24 January 2012