Paisley & Eccleston (No 2)
[2024] FedCFamC1F 191
•22 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Paisley & Eccleston (No 2) [2024] FedCFamC1F 191
File number(s): ADC 4535 of 2016 Judgment of: BERMAN J Date of judgment: 22 March 2024 Catchwords: FAMILY LAW – PARENTING – With whom a child lives with and spends time with – Where the parties agree equal shared parental responsibility – Consideration of what time the father should spend with the children – Where the mother proposes four nights and the father seeks seven nights – Where the children have a meaningful relationship with both parents – Consideration of best interests – Consideration of configuration of time spending – Ordered that the children spend substantial and significant time with the father.
FAMILY LAW – PARENTING – TRAVEL – Overseas travel – Where the mother is a citizen of Country E, and the father is Australian – Father agrees to an order for overseas provided that a bond be paid – Where the mother concedes a bond but disputes the quantum – Ordered that the mother be permitted to travel subject to a bond.
Legislation: Family Law Act 1975 (Cth) ss 60B,6 0CA, 60CC, 61DA, 69ZT, 69ZQ Division: Division 1 First Instance Number of paragraphs: 186 Date of hearing: 29 – 31 January & 1 February 2024 Place: Adelaide Counsel for the Applicant: Ms Miller Solicitor for the Applicant: Sykes Bidstrup Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: Eastern Legal ORDERS
ADC 4535 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PAISLEY
Applicant
AND: MS ECCLESTON
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
22 MARCH 2024
UPON NOTING THAT:
A.Paragraphs 1, 4.1 and 5 to 14 of these Orders were made by consent on 30 January 2024 and paragraphs 18 and 19 of these Orders were made by consent on 31 January 2024 (exhibit “4”).
THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for X, born 2014 and Y, born 2016 (collectively “the children”).
2.The children live with Ms Eccleston (“the mother”).
3.The children spend time with Mr Paisley (“the father”) as follows:
3.1In week 1 commencing 2 April 2024:
3.1.1on Tuesday from the conclusion of school (or 3.30 pm if a non-school day) until 7.30 pm.
3.2 In week 2:
3.2.1from the conclusion of school (or 3.30 pm if a non-school day) on Thursday to the commencement of school (or 9.00 am if a non-school day) on the following Monday.
3.3 Commencing 5 March 2025:
3.3.1Each alternate week from the conclusion of school (or 3.30 pm if a non-school day) on Wednesday to the commencement of school (or 9.00 am if a non-school day) on the following Monday however, if the Monday is a declared public holiday then the father’s time with the children is extended until 7.00 pm.
3.4Such further time as may be agreed between the parties.
4.The children spend time with the parties during the school holidays periods as follows:
4.1During the short school holidays, with each of the parties for seven (7) consecutive nights with such time to take place with the parent having the care of the children on the last day of school term shall have the first block of 7 days with handover being at 5.00 pm on the first (or following) Friday and the other parent shall have the second block with handover being at 5.00 pm on the following Friday NOTING THAT the term time living arrangement for the children resume in its ordinary cycle at 5.00 pm on the last Friday of the school holiday period; and
4.2In respect of the long school holiday periods at the end of the school year:
4.2.1In the long school holiday period commencing in 2024 and in each alternate year thereafter, the children live with:
4.2.1.1the mother for four weeks commencing on the first day of the long school holiday period and, during the time they live with the mother, be permitted to travel with her to Country E or other overseas location as nominated by the mother provided however:
4.2.1.1.1if the children are to travel overseas with the mother then she is to comply with the conditions for the children’s overseas travel as provided for in paragraph 16 hereof; and
4.2.1.1.2in 2024 only, the children’s time with the mother be for an extended period of five weeks commencing at the end of school on the last day of the last school term to enable the children to travel overseas with the mother in accordance with the Conditions of Travel;
4.2.2the father:
4.2.2.1from 5.00 pm on the day after the four-week period during which the children live with the mother pursuant to paragraph 4.2.1.1 hereof to the end of school on the first day of the following school year.
4.2.3In 2025 and alternate years thereafter the children live with:
4.2.3.1The father for three weeks in 2025 but thereafter for four weeks commencing on the first day of the long school holiday period and during the time they live with the father be permitted to travel with him to an overseas location as nominated by the father provided however that the father, if the children are to travel overseas with him, comply with the condition for the children’s overseas travel as provided for in paragraph 16 hereof; and
4.2.3.2The mother from 5.00 pm on the day after the four week period during which the children live with the father pursuant to paragraph 4.2.3.1 hereof to the end of school on the first day of the following school year.
5. The children spend time with the parties on special occasions as follows:
5.1On Mother’s Day, the children live with the mother from 4.00 pm on the Saturday preceding Mother's Day until 5.00 pm on Mother's Day;
5.2On Father’s Day, the children do live with the father from 4.00 pm on the Saturday preceding Father's Day until 5.00 pm on Father's Day;
5.3On X’s birthday such that:
5.3.1in 2024 and each alternate year thereafter, the children live with the mother from 4.00 pm on 25 January until 4.00 pm on 26 January and with the father from 4.00 pm on 26 January until 4.00 pm on 27 January; and
5.3.2in 2025 and each alternate year thereafter, the children live with the mother from 4.00 pm on 26 January until 4.00 pm on 27 January and with the father from 4.00 pm on 25 January until 4.00 pm on 26 January.
5.4On Y’s birthday such that:
5.4.1in 2025 and each alternate year thereafter, the children live with the mother from 4.00 pm on 27 August until 4.00 pm on 28 August and with the father from 4.00 pm on 28 August until 4.00 pm on 29 August; and
5.4.2in 2024 and each alternate year thereafter, the children live with the mother from 4.00 pm on 28 August until 4.00 pm on 29 August and with the father from 4.00 pm on 27 August until 4.00 pm on 28 August.
6.All handovers that do not take place at the children's school, are to take place at the residence of the party with whom the children are residing, with the transitioning party to remain in the car.
7. With respect to the children's schooling:
7.1the parties be restrained and injunctions are hereby granted restraining them from changing the children's enrolment from F School until the completion of grade 6, unless otherwise agreed in writing between them;
7.2the parties will do all things necessary and sign all such documents as necessary to enrol the children at, and facilitate their attendance at, G School from grade 7 until the completion of their secondary education, unless otherwise agreed in writing between them.
8.The parties be at liberty to attend the children’s sporting events, plays, recitals (or any other events to which parents are usually invited), school sports day and parent/teacher interviews as well as to obtain any school report or school photographs.
9.The parties do all things necessary to have X and Y obtain a mental health care plan and referral to Ms B or such other psychologist who is agreed between the parties (hereinafter referred to as the "children's psychologist") and to attend upon the children's psychologist in accordance with the recommendations of the psychologist at the parties' equal expense, noting the parties shall pay for and facilitate the children's attendance at alternate visits.
10.The mother's solicitors be at liberty to provide Ms B copies of the Child Impact Report dated 28 July 2022 and the Family Assessment Reports dated 28 October 2022 and 28 September 2023, and a copy this judgment.
11.The parties be at liberty to engage with the children's psychologist at the discretion of the psychologist.
12.The parties use the MyMob parenting communication app or such other parenting app as agreed in writing by the parties for all communications in relation to the children with any cost to be shared equally by the parties.
13.Each party shall be at liberty to travel interstate with the children during the time that the said children are living with them provided that the party intending to travel shall provide the other party two (2) weeks' written notice in advance of their intended travel including dates of travel and destination and shall provide a contact number for communication of issues in relation to the children.
14.In the event of an emergency concerning the children, the party with the care of the child shall contact the other party as soon as possible and that party shall be allowed to attend upon child.
15.The father shall forthwith hold all passports Australian or otherwise for X and the mother shall forthwith hold all passports Australian or otherwise for Y.
16.As to the Conditions of Travel for the purposes of paragraph 4.2 hereof and preparatory to the children’s overseas travel as provided for herein:
16.1no less than 60 days before the departure date, the travelling party shall provide to the other party an itinerary and confirmation of travel bookings as issued by the travel agent and/or carrier, copies of return tickets including the return home date and a contact number for communication of issues in relation to the children and reasonable communication with and by the children to the non-travelling party while they are away;
16.2no less than 30 days before the departure date, the travelling party shall pay a security bond of $15,000 into the travelling party’s solicitor’s trust account and the travelling party’s solicitor shall provide written confirmation of such payment to the non-travelling party or his or her solicitor or as otherwise may be agreed between the parties in writing;
16.3the non-travelling party shall provide the passport in his or her possession to the travelling party 21 days prior to the intended date of travel conditional on the security bond as provided for in paragraph 16.2 having been paid to the travelling party’s solicitor or as otherwise may be agreed between the parties in writing;
16.3.1on production by the travelling party of proof that he or she has returned home with the children in accordance with the terms of this order within 7 days after his or her return home, the travelling party shall return to the non-travelling party the relevant passport provided by that party prior to travel following which the travelling party’s solicitor or as otherwise agreed shall release to the travelling party the security bond paid pursuant to this order and shall forthwith advise the non-travelling party accordingly; and
16.3.2in the event that the travelling party fails to return home with the children and to provide proof that he or she has returned home with the children in accordance with the terms of this order, the travelling party’s solicitor shall forthwith cause the security bond to be paid to the non-travelling party.
17.Forthwith, the Australian Federal Police be instructed to remove the children from the Family Law Airport Watchlist.
18. Both parties are hereby restrained and injunctions are granted restraining them from:
18.1changing the children's principal place of residence while they are in his or her care to more than 75 km from Suburb H;
18.2denigrating the other parent to or in the presence of hearing of the children, or allowing any other person to do so;
18.3denigrating the other parent's family to or in the presence or hearing of the children, or allowing any other person to do so;
18.4harassing, assaulting or otherwise intimidating or threatening the other party either verbally or in writing including by electronic means or permitting any other person to do so in the presence of or within the hearing of the children;
18.5using physical discipline or allowing any other person to do so on the children;
18.6discussing these proceedings in the presence or hearing of the children or allowing any other person to do so and from involving the children in or exposing them to adult issues relating to these proceedings; and
18.7video or voice recording the other party and recording themselves in the presence of the other party.
19.The parties inform each other of any medical or other health appointments for the children within 24 hours of same being made and provide the other with details of any health or dietary issues via the parenting communication app.
20.Within 7 days, the father do provide the mother, copied at his expense, a “USB stick” containing all photos and videos in his possession of the children including their births.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Paisley (“the father”) and Ms Eccleston (“the mother”) are unable to reach agreement in relation to the future parenting arrangements for X born 2014 and Y born 2015 (collectively “the children”).
The parties commenced cohabitation in 2004, were married in 2010 and separated on a final basis in July 2016. The father commenced proceedings on 23 November 2016 and following a final hearing, orders were made by consent on 22 May 2017 (“the 2017 orders”) in relation to both parenting and property matters.
The 2017 orders provided for the parties to have equal shared parental responsibility, for the children to live with the mother and spend time with the father for four nights a fortnight. Orders were also made in relation to Airport Watchlist however, the 2017 orders were silent on time spending during the school holidays.
The father filed an Initiating Application on 19 January 2022 and for reasons set out below, the parties remain in dispute over the father’s time spending with the children, overseas travel and school holiday time.
By Initiating Application filed 19 January 2022, the father enlivened the proceedings and sought to set aside the 2017 orders.
By Amended Initiating Application filed 13 November (which was subsequently amended by the proposed Minute of Order set out in the father’s Case Outline document), the father seeks orders that the parties have equal shared parental responsibility, the children live with the mother and spend time with the father for six nights per fortnight until the conclusion of 2024 and at the commencement of 2025, the children spend time with the parties’ on a week about basis.
In relation to overseas travel, the father proposes that during the long school holidays, the children spend time with the parties for four consecutive weeks, alternating each year. The father considers that this would enable the mother to return to Country E with the children each alternating year and provide the father with an opportunity to also travel with the children.
By Amended Response to Final Orders filed 30 December 2023, the mother seeks orders that the children live with the mother and spend four nights per fortnight with the father. The mother proposes that the parties facilitate a week about shared care arrangement during the short-term school holidays and that ultimately during the long school holidays, the children live with the mother and spend 14 days with the father.
The parties also respectively propose that detailed orders be made in relation to psychological evaluation of the children, various restraints and injunctions as well as orders for the retention of the children’s passports, airport watchlist and a security bond.
Prior to the first day of the final hearing, the parties were able to reach agreement in relation to a plethora of issues which resulted in a proposed Consent Minute of Order being presented to the Court on the first day of the final hearing. The balance of the issues that remained in dispute were of very narrow compass and easily defined.
Essentially, the only issues that required judicial determination were whether the children should spend four or seven nights per fortnight with the father and matters relating to overseas travel and the long school holiday period.
BACKGROUND
The father was born in 1980 and is 43 years old. He is employed on a full-time basis as a professional.
The mother was born in 1981 and is 42 years old. She is employed on a part-time basis as an educator.
The mother was born in Country E and the father was born in Australia. The parties’ met in 2004 whilst they were undertaking studies in Queensland, Australia. They commenced cohabitation in or about 2004 and were married in 2010.
Throughout their relationship, the parties have lived and worked between Australia and Country E.
In 2014, X was born in Australia and in 2015, Y was born in Country E.
In early 2016, the parties permanently relocated to Australia however, they continued to travel to Country E for extended periods of time to visit the maternal family.
The parties’ separated on a final basis on 1 July 2016.
Since separation, the mother has re-partnered with Mr K who has a six-year-old son from a previous relationship. The mother and Mr K do not live together although the mother deposes to spending significant time together.
Following separation, the father commenced proceedings on 23 November 2016 which, following a final hearing, resulted in the parties’ reaching agreement as contained in the Consent Orders made 22 May 2017 (“the 2017 orders”).
At the time of the 2017 orders, the children were aged three years and one year. The 2017 orders provided for the children to live with the mother and spend time with the father on a graduated basis such that he ultimately spends four nights per fortnight with the children.
Paragraph 7 of the 2017 orders provided that the parties were to attend mediation in 2018 to discuss the ongoing living arrangements for the children as well as a provision that in the event no agreement was reached between the parties at mediation, neither party would rely on the principles of Rice & Asplund. It is axiomatic that such a provision is unenforceable and should not have been included. No agreement was reached following mediation in 2018 and 2019 and on 19 January 2021, the father enlivened the proceedings by filing an Initiating Application.
The father considered that he should spend equal time with the children and likely anticipated that attending mediation would result in an increase of his time with them. The mother opposed the father’s proposal. She considered that the children should continue spending four nights per fortnight with the father but that it be in a block of time.
The basis for the mother’s opposition to the father’s proposal is that she considers the father undermines her relationship with the children, the parties have a poor co-parenting relationship and difficulty communicating which has a profound and negative impact on the children.
As a result of the parties’ inability to negotiate an increase of the father’s time with the children, the father filed an Initiating Application seeking orders to increase his time with the children. It is unfortunate that the 2017 orders, which were intended to be final, were essentially interim orders and can be seen as promoting further litigation by including a clause to oust the principles enunciated in Rice & Asplund. Ongoing litigation can never be seen as being in the best interests of the children and for reasons set out below, the evidence supports a finding that the children have been significantly and adversely affected by the litigation which has spanned nearly eight years.
It is not in dispute that the parties’ ability to communicate has historically been regrettable and their co-parenting relationship has been turbulent. Although a significant focus of the cross examination and the affidavit material was on historical text message communication between the parties, it appears that with the father obtaining benefit from therapeutic assistance and the implementation of a parenting communication app, the parties are not entirely unable to communicate effectively.
The father has engaged in counselling with Mr D, which he considers has been positive. It appears that although the tenor of the parties communication has improved it is unlikely that they will be unable to amicably and constructively co-parent.
DOCUMENTS RELIED UPON
The father relies upon the following documents:
(1)Amended Initiating Application filed 13 November 2023;
(2)Affidavit of the father filed 12 November 2023 (‘the father’s trial affidavit”);
(3)Affidavit of the father filed 16 January 2024 (“the father’s reply affidavit”);
(4)Affidavit of Ms J filed 13 November 2023;
(5)Affidavit of Mr D filed 13 November 2023;
(6)Affidavit of Mr L filed 13 November 2023;
(7)Affidavit of Mr L filed 17 January 2024; and
(8)Affidavit of Ms M filed 19 January 2024.
The mother relies upon the following documents:
(1)Amended Response to Initiating Application sealed 30 December 2023;
(2)Affidavit of the mother filed 4 January 2024 (“the mother’s trial affidavit”);
(3)Affidavit of Mr K filed 30 December 2023;
(4)Affidavit of Dr O filed 20 January 2024; and
(5)Child Impact Report dated 28 July 2022,
Both parties relied upon the Family Assessment Report dated 28 October 2022 and the updated Family Assessment Report dated 29 September 2023 as well as their respective Case Outline documents filed prior to the commencement of the trial.
TREATMENT OF THE EVIDENCE
The parties trial material was voluminous, to say the least. The father’s trial affidavit comprised 407 pages and his reply affidavit, a further 154 pages. The mother’s trial affidavit totalled 206 pages comprising of 353 paragraphs. In circumstances where the dispute was of narrow compass, and the parties’ trial affidavit material referenced matters dating back to 2016, the Court raised concern as to how the best interests of the children would be served by revisiting historical, and outdated, matters.
Ventilating matters that occurred in 2016 and were no longer the subject of dispute nor were relevant to the issues that the Court was required to determine, is likely to only further cause conflict between the parties and cannot be seen to be in the best interests of the children.
Prior to the commencement of the trial, the parties’ counsel both provided extensive objections to evidence. The father’s objections to the mother’s trial affidavit comprised 16 pages. Noting that the parties were each legally represented and had instructed experienced counsel, I raised with counsel as to whether the trial material was the subject of settling in circumstances where the objections related to entirely inadmissible evidence or matters which the Court would give little, or no weight or regard to.
I also highlighted the provisions of Division 12A of the Act and in particular, whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”). Neither party spoke against the application of the provisions of s 69ZT.
Section 69ZQ of the Act enables the Court to actively direct, control and manage the conduct of the proceedings and impose the Court’s will in terms of management. It is a matter of discretion to be exercised by me including in relation to the issues of objection to evidence and affidavit material and manner in which evidence is to be called.
Many of the parties’ objections to evidence coalesce as to relevance, opinion, supposition or argument.
Having regard to the foregoing and absent any submissions made by counsel as to the treatment of the evidence, I indicated, and consider, that the best way to manage these proceedings is not to deviate from s 69ZT of the Act other than as indicated namely, to apply a strict approach of the application of the Evidence Act for matters relating to objection. I ruled on matters of objection so as to assist counsel and the parties focus on the real issues of this case namely, the care arrangements for the children. I consider that the balance of the matters are to be considered by the application of s 69ZT.
THE EVIDENCE
The father
The evidence of the father must be considered against the background of the proceedings which initially commenced in 2016 and were temporarily resolved by consent on 22 May 2017.
A combination of the final orders and subsequent interim orders resulted in the children spending time with the father each Tuesday from the conclusion of school until 7.00 pm and in the first week from the conclusion of school Wednesday until 5.00 pm Friday and in the second week from the conclusion of school Friday until 5.00 pm Sunday.
The father has been seeking to extend his time with the children which has been refused by the mother.
The tenor of the father’s evidence is that the mother’s continued refusal to extend the time that the children spend with him is in part explained by his view that the mother seeks to alienate the children from him and to disrupt their relationship.
The apparent enmity between the parties is exemplified by what at times could be categorised as a slavish focus on the early history of conflict between the parties and an unnecessary focus on what occurred at the time of the failed mediation in or about September 2018.
As discussed, the parties were able to reach substantial agreement as set out in a Minute of Order dated 29 January 2024 (“Exhibit 4”).
An important part of the Minute of Order is that the parties are to have equal shared parental responsibility for the children.
There is a concession as to the time the children are to spend with each of the parties during the short school holidays and whilst the subject of more recent proposed amendment by the father, there is even broad agreement that the orders for the children to spend time with the parties during the long school holidays, such that each of the parties but in particular the mother, would be able to travel with the children to visit extended family in Country E.
It is reasonable to assume that the father’s concession recognises the importance to the children of enhancing their Country E heritage.
Given then the very narrow issues of the time the children should spend with the father during school terms, it is surprising that an agreement was not able to be reached.
In examination in chief, the father provided some further background information as to his current employment and occupation and agreed that Child Support was no longer an issue.
By way of observation, there is significantly more that the parties have been able to agree rather than that which is not agreed despite the apparent attempt by each of the parties, by the very nature of their affidavit material, to portray an intense dislike of each other thereby promoting a difficulty in the parties being able to communicate or reach consensus as to matters affecting the children.
To his credit, the father now does not criticise the mother for conduct that previously concerned him. The father does not consider that it is necessary for Y to continue to receive the therapeutic assistance however, even that issue has now been the subject of agreement.
The father also considered that even though he held a view of the mother coaching the children and attempting to alienate them from him, the relationship between the parties appeared to be improving, at least from his perspective.
When pressed the father still thought that if it was possible, the mother would seek to exclude the father from the children’s lives.
Neither of the parties attend any sport activity or extracurricular obligations of the children at the same time but for his part, the father will not object to the mother attending if the children are spending time with him although it is understood that the mother does not adopt the same position of the father. An indication of the low point in the relationship between the parties is exemplified by the practice adopted by the father whereby he would seek to video the occasions of handover between the parties.
The father’s evidence was unconvincing in terms of his denial as to both frequency and purpose of his video recordings but of greater significance is that there is now some confidence that the practice has come to an end.
The difficulty for the father is to justify his view that the mother seeks to disrupt his relationship with the children in circumstances where the mother supports orders that would see the children spending time with the father four days per fortnight and each alternate weekend.
The father was forthright in his evidence, and I accept that even though there is mistrust and animosity as between the parties, they have been able to navigate their difficulties with the children, who are aware of the ongoing conflict, appear to be relatively unscathed.
The father’s evidence allowed the finding that the Court could be confident he was well motivated, appropriately caring of the children and once the litigation is concluded, likely to be prepared to have a civil relationship with the mother contrary to the somewhat grim picture painted by the father’s affidavit material replete with allegations and accusations.
Mr D
The father relied upon an affidavit of Mr D dated 9 November 2023. Mr D is a family violence counsellor who the father consulted in or about late 2022 for counselling in respect of family violence.
Mr D provided a report dated April 2023 as well as a letter dated August 2023 which sought to provide an update with respect to the report.
Mr D was not called for cross examination.
I accept that the father has undergone significant therapeutic engagement and at least as far as Mr D was concerned, therapy that had a focus on the damaging consequences of aggressive behaviour and family violence.
Mr D considered that the father had the ability to reflect on his views concerning the mother and had softened his opinion.
He was better able to control his anger and it is an important observation that over the period that the father consulted Mr D, he demonstrated increasing self-awareness, insight and the ability to self-critique.
The evidence of Mr D should also be considered against the father’s evidence of his engagement in long term counselling with Mr L from about January 2021.
The mother
In similar presentation to the father, the mother’s evidence focussed on allegations that had their genesis in the early days of the parties’ relationship.
Given that the mother concedes equal shared parental responsibility and a continuation of significant and substantial time between the children and the father, it is difficult to understand in what context a raft of detailed allegations of the father’s alleged misconduct could be seen as relevant.
The issue in respect of the orders sought is to be determined not by what the parties want for themselves but rather what will ultimately be in the best interests of the children. Simply put, the extent, if any, of any extension of time that the children spend with the father is to be determined by what would be in their best interests, not necessarily what each of the parties want and whilst informed by the views of the children, not determined by their views.
The mother presented as a credible witness. Her high level of emotion in respect of the proceedings and in particular as directed towards the father was palpable.
It is likely that the children have observed their mother’s distress and upset.
Similar to the position adopted by the father, the mother conceded that the children should spend the equivalent of four nights a fortnight with the father with her preference being that the time be taken as a block rather than in the current fragmented arrangement. The mother opined that the less opportunity for the parties to come into direct contact with each other the less acrimonious would be the environment for the children.
There was again an unfortunate focus on the early conduct of the parties following separation and leading up to the 2017 final orders. Whilst that evidence is likely to be of limited assistance, what it did highlight was the extent to which the mother could be seen as forthright and forced in her approach to the father.
I accept the mother’s evidence that there were some issues about which the parties were not able to agree. It is apparent that each of the parties expected there would be more concession given by the other during the 2018 mediation process.
There were threats and counter threats made by each of the parties as to the extent to which, if concessions as to time were not made, there would be little or no flexibility in future arrangements.
Contrary to the position that the mother intended to convey namely, that the relationship between the parties was entirely dysfunctional and that they were therefore incapable of reaching any consensus, agreement has been reached as to the future educational arrangements for the children.
Moreover, the parties have commenced to communicate via a “parenting app” and it seems that the language is both polite and present noting that the topics of communication are limited.
The mother conceded that the communication between the parties might be described as “functional” and agreed that if the parties did not have to communicate directly with each other then communication via the “parenting app” was a better way forward.
The mother made an appropriate concession that she was satisfied with the activities undertaken by the father including appropriate attention to the children’s school work and their extra-curricular activities.
Exhibit “5” is the “parenting app” exchange between the parties from 10 November 2023 to 21 January 2024. Even a cursory consideration of the communication passing between the parties demonstrates that they have a capacity to be civil and focus on the children’s needs rather than the broader conflict that has so confounded them since 2016.
The Court had the assistance of the 2023 school reports for the children (Exhibit “6”) and it is a reasonable summary that the children were conducting themselves in a satisfactory manner and that their academic and social pursuits were within what might be considered a normal and expected range for children of their age.
The mother agreed that the children were still attending therapy provided by Q Family Services however that was now likely to be of no further benefit to the children and would soon cease.
Similar to the father, the mother has also sought long term therapeutic intervention and assistance for the children.
Whilst it could not be said that the apparently extensive counselling and therapy undertaken by the parties has been an appropriate antidote to quelling the mistrust and conflict between the parties, I am satisfied that it represents goodwill by each of the parties and a genuine attempt to resolve their differences.
As the children have aged, the mother conceded that it was progressively easier to navigate the future parenting arrangements with the father.
Again, the mother’s evidence was significantly more benign as towards the father than was conveyed in her affidavit material. In part, the explanation for the different presentation of evidence may lie in the revelation that the mother’s trial affidavit was not a fresh document but rather had been prepared by cutting and pasting earlier affidavits.
Court Child Expert
Pursuant to an order made on 2 August 2022, Ms N (“the report writer”) conduct a child impact assessment to provide expert advice as to how the children might be supported through the litigation including a dispute resolution process and interim hearings.
The Child Impact Report (“the report”) dated 28 July 2022 was heavily qualified and was not specifically directed to future orders.
The report adequately sets out the competing proposals of the parties (as they then were) and the relevant history.
The interviews with the children are informative. X was eight years of age and Y was six years of age.
It is apparent that X was aware of the ongoing court proceedings. X reported having fun at his father’s house and confirmed that the father implemented appropriate parental discipline if the children misbehaved.
The report writer notes that X was aware of the strong adverse positions adopted by each of the parties towards the other and expressed discomfort of having to report to each of his parents about the other and in particular in respect of the domestic arrangements in each home.
Of recent date, X noted that there had been some improvement particularly at handover however, X noted that the father now does not engage with the mother in any verbal conflict or overt aggressive behaviour. Y was also keenly aware of the conflict between the parties but enjoyed his time with each of them.
The conflict between the parties is adequately summarised in the following paragraph of the report:
42.Whilst [the father]’s frustration in relation to [the mother]'s alleged inflexibility and intrusiveness regarding time spending arrangements is somewhat understandable, he may underestimate the distress that the children, (in particular X) are experiencing as he allegedly allows this anger and frustration with their mother to play out in their presence, in the form of alleged hostile body language and verbal communications.
The key recommendations of the report writer were to put in steps to minimise the physical contact between the parties in particular the use of a parenting app and for each of the parties but with a focus on the father, to undertake Parenting Orders Program and a Men’s Behaviour Change Program for the father.
The focus is to minimise the exposure of the children to the adult issues clearly playing out between the parties.
The report writer was not convinced that even if the parents were able to resolve their differences there would still be the potential for guilt and/or divided loyalties on the part of the children.
Family Consultant
Ms P (“the family consultant”) is a Child and Family Consultant.
She has had an active engagement with the family from 2022 resulting in a Family Assessment Report dated 28 October 2022 (“the first report”) and dated 28 September 2023 (“the second report”).
The family consultant considered that the children were reliable in their reporting of events and an initial assessment did not reveal any anxiety or adverse psychological presentation.
The reports set out the separate proposals of the parties and in the first report the issues in dispute are identified as follows:
24. Competing care/time proposals, including school holiday time.
25. The mother’s proposal to travel overseas with the children.
26. Those relating to the risk issues, above.
27.The children’s experience of relationship, care and time spending with each party.
28. The parties co-parenting relationship.
As is apparent from the substantial areas of agreement, some of the issue in dispute in the 2022 assessment have, to a significant degree, been resolved favourably between the parties.
There remained a dispute between the parties as to the impact of alcohol use on their relationship.
The father denied that he had used alcohol during the relationship in a manner that was problematic whereas the mother maintained her complaint that the father’s use of alcohol at times led to aggressive, controlling and intolerant behaviour on the part of the father.
At the time of the first report the parties had put in place the parenting app and each of them considered that it was satisfactory.
As a counterfoil to the mother’s allegations of the father’s alleged aggressive behaviour during the course of the relationship and post-separation, the father pointed to the aggressive tone in the mother’s communication with him in particular via text message.
What was apparent from the presentation of each of the parties to the family consultant was that whilst there may be some lessening of aggressive conduct upon the parties coming into contact with each other, the level of mistrust had not dissipated.
The father remained fixed in his view that the mother’s behaviour was both controlling and designed to be alienating with the intention of disrupting his relationship with the children.
The level of mistrust was epitomised by the father not being prepared to accept that a compromise made by the mother was a sign of “goodwill”.
At interview the mother denied that she was attempting to alienate the children from the father and was surprised at X’s disclosures during the Child Impact Report as to the child’s observations of the conduct of each of them. X was aged 8 years and Y aged 7 years at the time of interview for the first report.
Their response to the family consultant was not dissimilar to the matters raised in the Child Impact Report.
The children appeared happy in each of the parents’ homes. There was clear evidence of a strong emotional attachment.
X had no concerns in respect of the mother’s partner. The children remained acutely aware of the conflict and in particular the father’s anger towards the mother and her distress and upset.
X reported that the father had asked the children to lie to the mother about their relationship with the mother’s partner and it was apparent that but for the continuing mistrust between the parties the children had a positive experience when in the care of each of them.
The children reported that they felt “caught in the middle” of the dispute but that there were some initial signs that the parties were able to reach agreement as to certain aspects of their parenting.
X maintained that he would like to spend more time with his father whereas Y considered that at the time, the time spending was about right.
The family consultant considered that the mother showed greater insight as to the damaging consequences of the conflict upon the children whereas the father’s level of insight was considered as poor.
The children appeared to enjoy positive experiences with each of the parties even though the parent’s ability to coparent was suboptimal.
An important inquiry undertaken by the family consultant was to obtain information from the children’s school that there did not appear to be any concerning behaviour in their presentation.
The family consultant placed significant weight on the high conflict between the parties as the very antithesis of a stable and beneficial coparenting relationship.
The family consultant was alive to the allegations made by the mother that the father presented with aspects of control and family violence whereas the father considered that his behaviour was necessary in order to push back against his perception that the mother was seeking to alienate the children from him.
The family consultant could not confirm that the father’s concerns as to alienation of the children by the mother was present. And whilst the mother conceded that she had made inappropriate remarks and comments about the father, these did not seem to have the same emotional impact upon the children as opposed to the father’s more aggressive response.
Again, the significant observation of the family consultant was the potential for divided loyalties.
The circumstances as they existed in the 2022 assessment prompted the family consultant to report as follows:
137.Therefore, given the father’s current behaviour during this phase of the dispute and his difficulty in acknowledging or showing insight into this behaviour which places an emotional burden on the children and a distinct lack of child focus, if his time with the children were to increase there would be increased exposure to this behaviour which, in association with the children increasing in age, would likely pose a greater risk of alignment and subsequent impact on the children’s relationship with the mother.
The presentation of the family as recorded in the second report highlighted that there had been some improvement in the communication between the parties which was described as “functional”.
The father appeared to be more consolatory in his approach and the mother had made some concessions which had likely removed a number of areas of potential conflict.
For their part, whilst the children appeared to be functioning well, the conflict between the parties was still a feature and the issue of divided loyalties had not dissipated.
The children also reported a positive experience during the extended holiday time period with the father even though the mother remained concerned.
There was a disconnect between the mother’s view of how the children were being adversely affected by their time with the father and the children’s own favourable reporting.
X continued to report that his father had asked him to do “bad things” to his mother such as lying to her, being rude and engaging in a joke that might be designed to cause hurt or emotional upset.
X did not know why his father would want him to engage with his mother in this way but that it was too hard for him to talk about.
X expressed a preference for the current arrangement because it enabled him to spend time with his father in each week but also with his mother. He did not think that a week about arrangement would work but was clear that he liked the current arrangement and he was able to maintain a positive relationship with each of the parties.
It was apparent that the children were aware of the tension between the parties and the father’s intention to seek a shared care arrangement.
The family consultant summarised X’s position in the second report as follows:
61.In further exploring his relationship with both parties, [X] feels more consistently understood and supported by his mother. Differences in how [X] feels in relationship with his father are connected to the dispute; that the father does not understand [X] does “not want 50/50”, and his directions towards [X] “causes problems at Mum’s house” as it affects how [X] behaves towards his mother.
For his part, Y was unaware of how each of the parties feel about the other but had sufficient understanding to note that when returning from time with his father X would often “act all weird at mum’s house…he gets angry, he just wouldn’t look at mum…sometimes mum tells him to stop, then he stopped and kept on doing it”.[1]
[1] Family Assessment Report dated 28 September 2023, paragraph 67.
The family consultant noted that there had been better and more civil communication between the parties and acknowledged that there were now more areas of agreement.
The family consultant focussed on the ability of the parties to coparent and considered that 12 months on from the last report, there had not been much improvement.
Fortunately, and despite the poor coparenting relationship, the children appear to be developing well.
Whilst the family consultant considered that the mother is likely hypersensitive to the presentation of the children when they return from their time with the father, she appears to have developed more insight into the needs of the children than was apparent from the father’s presentation, evidenced by his continued denial of X’s experience.
The family consultant carefully brought to account the presentation of each of the children. X’s indication that he was opposed to equal time and the need for the parties, but in particular the father, to be more respectful of the potential for adverse consequences to the children of the ongoing conflict, that whilst equal time was not considered to be in the children’s interests, a modest increase from the current arrangements of four nights a fortnight to five nights a fortnight could be cautiously considered.
The recommendation of the family consultant in the second report are as follows:
•The children spend time with the father on alternate Fridays to Mondays and intervening Wednesdays to Fridays and otherwise with the mother.
•The children spend shared school holiday times between the parties on a week about basis as per existing orders.
The family consultant did not consider that there was any reason to change her view of the most appropriate arrangements for the children and emphasised that the Court could have confidence in what the children were saying was as a result of their lived experience.
A particular concern of the family consultant was that X needed to be heard and if he considered that his views were being ignored, he could become resentful and react badly.
STATUTORY FRAMEWORK
I consider it necessary that I adopt the approach that considers the practical reality of the separate parenting proposals of the parties.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties, in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act, are to be considered and if more weight is to be given to one or more of the matters raised, then it must be the subject of delineation and comment;
(7)Section 61DA of the Act requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in s 61DA(2) which would rebut the presumption if a person or persons living with the child has engaged in:-
(a)abuse of the child or another child who, at the time, was a member of the parents’ family, (or the other persons family); or
(b)family violence.
(8)Section 61DA(4) of the Act provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The parties have reached substantial agreement as set out in the Consent Order comprising exhibit “4”. The extent of the agreement includes an order for equal shared parental responsibility.
What remains for consideration is the time the children spend with the father during school terms and a resolution of the mechanics of orders sought by each of the parties during the long school holiday period that allows for each of them to travel with the children overseas. As has been discussed, the dispute between the parties is of narrow compass.
It is a relevant consideration that the parties have been able to reach substantial agreement.
PARENTING CONSIDERATIONS
Meaningful relationship
The focus of parenting proceedings is to ensure that the children have a meaningful relationship with their parents.
The children have a meaningful relationship with each of their parents. The issue is not then whether the proposal of either of the parties would have the potential to adversely impact upon the quality of the current relationship the children have with their parents but rather, whether it would be in their best interests.
Given that the parties have agreed on equal shared parental responsibility, the Court is obliged to consider whether there should be equal time but if not indicated as being in the children’s best interests, then significant and substantial time.
The children have a close emotional attachment with each of the parties. They enjoy their time in the home of their father and their mother. The children have a good relationship with their mother’s partner.
For his part, X does not want a significant change to the current arrangements but equally does not want to see a diminution of his time with the father.
Are the children at risk
The mother considers that the children have the potential to be at emotional or psychological risk firstly, by the ongoing conflict but more particularly, arising out of the father’s apparent inability to accept that the mother may well be hypersensitive to the needs of the children but that should not be seen as a desire to alienate the children from him.
The father remains mistrustful of the mother however the evaluation of the relationship between the parties by the family consultant pointed to the mother having a greater level of insight than the father.
There is no evidence that supports a finding that the mother has embarked upon a process designed to disrupt the children’s relationship with the father.
The extent of agreement between the parties would support a finding that the parties have become more supportive of the children’s relationship with the other than was previously the case.
I do not consider that the children are at risk other than the need to remove the children from the dispute as much as possible and to minimise the potential adverse consequences of divided loyalties.
Wishes of the children
X has expressed a strong view that he wants to keep the time that he spends with each of the parties as it currently is. Y was less affected by the conflict but was able to make the important observation that X acted at times in a “weird manner” when he returned from time spent with the father.
X is currently 10 years of age and Y is 8 years of age.
Their experiences are somewhat different but likely consistent with X being an older child and developing a greater level of awareness.
The family consultant considers that weight should be given to the wishes of the children but in particular, X.
The nature of the relationship with the parties
The children’s primary attachment is with the mother. That does not derogate from the children’s positive relationship with the father but highlights that given the level of conflict, a cautious approach should be adopted to ensure that the positive nature of the children’s relationship with each of their parents is not undermined.
The likely effect of any change in the children’s circumstances
X does not want a dramatic change and whilst it is likely that there could be some advantage to children spending more time with the father as they get older, any transition must be gradual and designed to cause the least disruption in terms of the parties coming into physical contact with each other.
The advantages and disadvantages of the separate proposals of the parties
The children are currently secure in the primary care of the mother. There is no challenge to the manner in which the children are developing and but for some earlier consideration as to the school attendance of the children, the mother’s ability to care for the children at a high level is not in dispute.
The same could not necessarily be said for the father, there remains a residual concern that the father continues to believe that the mother seeks to alienate the children from him with the damaging consequence of X being asked to lie to the mother about his feelings towards her partner and to behave in a way that could be considered as disrespectful towards her.
Whilst the extent of the parties ability to agree most of the outstanding parenting issues is commendable, what appears not to have changed from the presentation of the parties to the family consultant and their evidence in court, is the level of mistrust that continues unabated.
The ability of the parties to coparent which would be a prerequisite of the father’s proposal remains unresolved.
Again, the issue is not as between the parties but rather the consequences of their conduct upon the children. Coparenting could not flourish in an environment of mistrust that continues to undermine the children and exacerbate what is already self-evident namely, that the children experience divided loyalty between their parents.
Simply put, it is not in the children’s best interests for there to be a shared care equal time arrangement where there is evidence that such an outcome would adversely impact the children. The family consultant was clear in her assessment of X that if he was not listened to there was the potential for a poor outcome.
CONCLUSION
The evidence supports a finding that the best interests of the children are supported by them remaining in the primary care of the mother but spending significant and substantial time with the father.
A careful reading of the family consultant’s second report and giving weight to her evidence is such that whilst she considers five nights a fortnight to be achievable, it is not inevitable, nor should it be undertaken without proper consideration.
X and by likely implication, Y are progressing well under the current arrangement which has them spending time with each of their parents in each week.
There is merit in the children spending a block time of four nights a fortnight in the father’s care from the conclusion of school Thursday to the commencement of school on the following Monday but at this stage, I consider it premature for there to be a further block of time in the intervening week.
The transition to five nights a fortnight must progress in a manner that is able to be understood and accepted by the children.
The children should continue to spend time on the intervening Tuesday evening with father to enable him to participate in extra-curricular activities, homework and an evening meal.
There should then be a transition to one further overnight period. The mother seeks that the children spend time with the father in a block of time whereas the father would seek overnight time in the intervening week, conceding that the current interim arrangement for an evening meal with the children is somewhat rushed.
The evidence from the family consultant supports an extension of the father’s time and whilst her recommendation is that the children spend time with the father in each week, she does not suggest that the children would not cope with an extended period of time with the father even if they no longer spend time with him in the intervening week.
The father’s proposal was that there be shared care. I consider that the children should spend significant time with the father and am assisted by the efforts undertaken by each of the parties via counselling and therapeutic assistance and support resulting in improvement in the parties ability to communicate with each other. It is a fine line between five nights a fortnight and shared care. The order that I propose to make should be seen in the context of building upon the current orders with a twelve months transition to a block time period of five nights.
The remaining issue for consideration are the competing proposals of the parties for overseas travel. The parties are mostly in agreement but I propose to transition the father’s time over a period of two years.
The parties were not initially agreed as to whether a security bond should be required and paid. During the course of the proceedings, and following some negotiations, the parties agreed that there should be provision for a security bond but were not able to agree quantum. The father’s position was that the security bond should be $25,000 whereas the mother considered $10,000 was sufficient. In the circumstances of the case, and taking into account the financial position of each of the parties, I consider that quantum of the security bond should be fixed in the sum of $15,000.
The litigation has been financially challenging for the parties. Given the ages of the children, it is possible that travel arrangements will be an issue at least for the next four to six years. It is a matter for the parties as to whether they would wish to retain solicitor’s however, I am of the view that they should be allowed to negotiate between themselves a different and less onerous alternative.
Accordingly, the orders reflect that the security bond is to be held by the travelling party’s solicitor or as otherwise may be agreed.
The parties were also not agreed as to the arrangements in respect of the children’s passports. I do not consider that it is practical nor necessary in the circumstances of this case that a Judicial Registrar of this Court be tasked to hold the passports of each of the children pending overseas travel.
As such, I have provided for the children’s passports to be held separately by each of the parties but provided to the travelling party twenty-one days prior to the intended date of travel. At that time, the non-travelling party will be aware of whether the security bond has been paid by the travelling party.
The mother seeks an order that the father provide her with a “USB stick” in his possession which electronically contains photos and videos of the children as and from their birth. It is not unreasonable that each of the parties should have access to material relating to the children. If the father has a “USB stick” containing the sought after material then he should provide a copy of same to the mother.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 22 March 2024
0
0
1