Patrick and Patrick - [2009] FMCAfam 326

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATRICK & PATRICK

[2009] FMCAfam 326

FAMILY LAW – Parenting – wishes of 13 year old – intractable conflict – separation of siblings – 13 year old interviewed by Federal Magistrate and family report writer.

Family Law Act 1975 ss.60B, 60CC, 65DAA

Applicant:

MR PATRICK

Respondent:

MS PATRICK

File Number:

BRC 6303 of 2007

Judgment of:

Demack FM

Hearing date:

7 April 2009

Date of Last Submission:

7 April 2009

Delivered at:

Brisbane

Delivered on:

17 April 2009

REPRESENTATION

Solicitor for the Applicant:

Ms Fairon

Solicitors for the Applicant:

Frank Carroll Solicitor

Counsel for the Respondent:

Mr Nguyen

Solicitors for the Respondent:

Sunnybank Solicitors

ORDERS

That the children [Y] born in 1996 and [Z] born in 1998 live with the mother.
That the child [X] born in 1995 live with the father.
That the mother and the father have equal shared parental responsibility for the long-term care, welfare and development for all of the children.
That the children [X], [Y] and [Z] spend time and communicate with the father and the mother, at all times as may be agreed in writing between the parties, however, failing agreement, as follows:
(a)[Y] and [Z] will spend time with the father:
(i)Each alternate weekend from after school Friday through to before school Wednesday;
(ii)By telephone each Friday from 7:00pm to 7:30pm with the father to initiate such a call;
(iii)At all such times as agreed or as specified below.
(b)[X] will spend time with the mother:
(i)Each alternate weekend from after school Friday through to before school Wednesday;
(ii)By telephone each Friday from 7:00pm to 7:30pm with the father to initiate such a call;
(iii)At all such times as agreed or as specified below.
That the times referred to in Order 3 will be coordinated so that the children are all together on weekends.
That whilst the children are in the care of each parent, should any of the children express a wish to telephone the other parent, then the parent with whom the children are living with shall facilitate such telephone time between the children and the other parent.
That during Queensland Gazetted school holidays the children shall spend the following time with each parent:
(a)With the father:
(i)For the first half of all school holidays in even years;
(ii)For the second half of all school holidays in odd numbered years;
(b)With the mother:
(i)For the first half of all school holidays in odd numbered years;
(ii)For the second half in even numbered years
That the school holiday period arrangements begin at the end of the last day of school term and conclude at the commencement of the first school day after the holiday period.
That the children spend time with each parent for Christmas as follows:
(a)With the father:
(i)From 11:00am Christmas Day to 11:00am Boxing Day in all even numbered years and each alternate year thereafter;
(ii)From 11:00am Christmas Eve to 11:00am Christmas Day in all odd numbered years and each alternate year thereafter.
(b)With the mother:
(i)From 11:00am Christmas Day to 11:00am Boxing Day in all odd numbered years and each alternate year thereafter;
(ii)From 11:00am Christmas Eve to 11:00am Christmas Day in all even numbered years and each alternate year thereafter.
That the children spend time with each parent for Easter as follows:
(a)With the father:
(i)From after school Thursday to 5:00pm Easter Saturday in even numbered years and each alternate year thereafter;
(ii)From 5:00pm Easter Saturday to 9:00am Tuesday following Easter in odd numbered years and each alternate year thereafter.
(b)With the mother:
(i)From after school Thursday to 5:00pm Easter Saturday in odd numbered years and each alternate year thereafter;
(ii)From 5:00pm Easter Saturday to 9:00am Tuesday following Easter in even numbered years and each alternate year thereafter.
That all of the children will spend time with the father on the Father’s Day weekend from 5:30pm on the day prior to Father’s Day and the father shall deliver the children to school on the Monday following Father’s Day.
That all of the children will spend time with the mother from the Mother’s Day weekend, from 5:30pm on the day prior to Mother’s Day and the mother shall deliver the children to school on the Monday following Mother’s Day.
That for the children’s birthdays, the father’s birthday and the mother’s birthday, the parent who is not spending time with the children pursuant to these Orders will telephone the child on the day and spend time with the child on the weekend prior or subsequent to the birthday.
That these Orders shall be sufficient authority for any medical practitioner or allied health professionals who may treat the children from time to time to speak freely with both parents about the children and provide wither parent with any information he or she may reasonably request about the children and any diagnosis and treatment the child or children may be receiving.
That these Orders shall be sufficient authority for any school, sporting organisation or similar extra-curricular organisation which the children attend, to speak freely with both parents and provide both of them with whatever verbal or written information he or she may reasonably request.
That in the event of any special occasion or event that the parties wish for the children to attend, the party wishing to make that request shall do so in writing providing two (2) weeks written notice to the other party. The other party must not act unreasonably in this regard and respond within three (3) days.
That each parent shall keep the other informed as to the children’s health, welfare and education and also keep the other parent informed of their current residential address and mobile telephone number, notifying the other within forty-eight (48) hours of any change thereto.
That each parent shall keep the other informed as to the name, address and telephone number of any medical practitioner or allied health professional who treats the children from time to time whilst in that parent’s care.
That neither parent shall denigrate the other or members of their family to the children or in the presence or hearing of the children.
That the parents will not pass messages through the children and will instead use text messages to pass such messages concerning the children to the other parent.
That no party be permitted to order a transcript from the proceedings on the 7 April 2009 between the hours of 10:00am and 11:00am, which is the interview between the child [X] and the family report writer

Mr Parker and Federal Magistrate Demack, without obtaining an Order of the Court.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 6303 of 2007

MR PATRICK

Applicant

And

MS PATRICK

Respondent

REASONS FOR JUDGMENT

(As Corrected)

[X] is presently 13 years old and is in grade 9. She is the oldest sister of [Y] who is 12 and in grade 8 and of [Z] who is 10 and in grade 6. Their parents separated in June 2005 and since then for the most time the children have lived in their mother’s care.
There have not previously been orders made for arrangements between the mother and the father until in October 2008 when Federal Magistrate Jarrett made orders on an interim basis and made directions for the parties to have counselling and subsequently a family report.
In October 2008 there had been a most dreadful incident when [Y] was spending time at her father’s place and her father sought for her not to return at the earlier agreed time. When the mother and [X] and a adult male friend of the mother’s attended at the father’s house there was a most awful scene. It was after that incident that the father commenced his proceedings to regularise the time that he would have with the children.
The interim orders that Federal Magistrate Jarrett made in October 2008 provided for all three of the children to live with their mother and to spend time with their father each alternate weekend from after school Friday to before school Wednesday; for half of school holidays and on other special occasions as well as telephone communication no less than once per week.
Those orders have been put into effect by the parties as best I can tell. Mr Francis Parker undertook the job of producing a family report.

Mr Parker had understood that the family report was to be prepared after the parties had attempted a mediation as ordered by Federal Magistrate Jarrett the mediation never took place and eventually

Mr Parker had to organise his family report interviews so as to have the report done in time.
When Mr Parker did his interviews and produced his report he was left with the impression that he hadn’t really managed to get to the bottom of who the subject children were and what matters were important to them. He commented in the report that in all of his years of experience he has rarely found three girls who have presented in such an inhibited manner at interview.
Mr Parker was particularly struck by the fact that [X] the 13 year old was expressing to him that she wanted to live in her father’s care.

Mr Parker couldn’t get [X] to unpack the reasons why she wanted to remain in her father’s care: the reason that she gave Mr Parker was that she liked the rules at her father’s house. This was a curious comment for [X] to make because [X] hasn’t previously been known for her love of complying with rules.
Indeed up until the order of the Court in October 2008 [X] had not spent any time in her father’s care for a period of approximately nine months. She had not spent time in her father’s care because she had disagreed with her father about boundaries that her father was setting up for her to comply with when in his care. It would seem clear that the reason she stopped spending time at her father’s was because she was against him making rules which she didn’t agree with which she considered impacted upon the things she wanted to be doing.
Further, [X] has had difficulties at school. She has had many periods of failing to attend school from her mother’s care. It was therefore quite reasonable for Mr Parker to be surprised at family report interviews conducted in February 2009 that she wanted to be with her father because of his rules. [X] wasn’t able to further express that to

Mr Parker in the interviews. Mr Parker was concerned that [X] may have been borderline depressed on presentation to him.
The parties were not able to reach an agreement following the recommendation which Mr Parker eventually formed in his report. Because of his lack of conviction that what [X] expressed to him was something that she had properly thought through and because [X] was herself contemplating a separation of herself from her two younger siblings, Mr Parker’s eventual recommendation in his report was that the three girls should remain living together and to continue to have extended weekends on a fortnightly basis in the father’s household.
The matter came on before me after the release of the family report. Both the mother and the father were represented. I was given to understand by the submissions made to me at the bar table that the parents were inviting me to speak with [X] and that they considered that if [X] spoke with me that would be of assistance in the resolution of these proceedings. I made trial directions and set the matter down for a one day hearing. I advised the parties that I would speak with [X] in the presence of Mr Parker on the morning of the final hearing.
The father filed updated material. His updating affidavit spoke of the changes in [X] since the interim orders of Federal Magistrate Jarrett and the change in his relationship with her, her relationship not only with him and with also the other members of his household and why he continued to seek that [X] live with him as expressed to be her wishes to Mr Parker. The father also in the trial relied upon an affidavit filed by his now wife.
The mother in her material relied upon her affidavit which was filed in response to the father’s initiating application. The mother did not file any updated material and therefore did not put before the Court any evidence as to how the arrangements which had been in place since the orders made by Federal Magistrate Jarrett had been working in reality. There was no other witness on behalf of the mother.
On the morning of trial Mr Parker and I spoke with [X]. We spoke with her in the court room with only my Deputy Associate otherwise present. We spent around forty five minutes speaking with [X]. She told us certain things which Mr Parker than relayed to the solicitors for both the mother and the father. I will be making an order that the part of the transcript which relates to [X]’s conversation with me and the report writer not be able to be accessed without order of the Court as it seems to me that it would be proper to assess the proposed use of such transcript rather than have it simply available.
It had been my real hope that when the parents were advised of what [X] had said to Mr Parker and myself that there may have been the opportunity for some real discussions and resolution by these parents. That was not to be.
I therefore required Mr Parker to be the first witness so that through his evidence he would be able to place onto the record, fairly and squarely what [X] had said to he and I in the absence of the parents before the trial started. [X] had it seems to me been more forthcoming during her conversation with us at the Court than she had been with Mr Parker during the family report interviews. She presented quietly and thoughtfully but was clear in her views. She was happy to express her views and did so with very little reluctance, if any. Her preferred outcome was that she be able to live in her father’s household and that she spend time with her mother and her two sisters in her mother’s household every alternate weekend from Friday after school until Wednesday school.
Further, her preferred view included that her two younger sisters would spend every other weekend with her in the father’s household from Friday after school until Wednesday school. Through this process all of the three sisters would be in each other’s company outside of school times each Friday, Saturday, Sunday, Monday and Tuesday nights, leave each other on Wednesday at school and being back with each other from Friday after school.
[X] was clear that her middle sister [Y] went to the same school as her and that she and [Y] saw each other on a regular basis at school. [X] was also clear that she loves [Y] and [Z] and her mother and she was also clear that she wants to spend much more time in her father’s household than she presently does.
I turn now to the father’s household. The father married Ms P who brought into the relationship three children of hers from two earlier relationships. [A] is presently aged 12, [B] is presently aged 9, [C] won’t turn 6 until the end of this year. The father and Ms P together had a baby born in 2008. This child is the only boy amongst these six girls. His name is [D].
[X], in speaking with Mr Parker and I, was clear that she enjoys very much the company in the household of her father’s. She considers herself to have a close relationship with Ms P and a close relationship with all three step sisters and she clearly adores her baby brother [D]. When she is at her father’s house she shares a room with [A]. [Y] always shares a room with [C] and [Z] shares a room with [B]. These arrangements have been put in place through negotiations between all six girls and Ms P and Mr Patrick. This is an arrangement in terms of sleeping and bedroom space in that household that Mr Patrick has with his wife Ms P which they say works well.
The father’s brother presently lives in a downstairs bedroom of the same house with his own ensuite. It is not a long term arrangement that is presently in place and in any event if that room became available because the uncle moved out that room would not be a room suited to any of the girls using.
Baby [D] for the time being sleeps in a cot in his mother and father’s room.
In the mother’s household there are [X], [Y] and [Z]. There is talk in the material that the mother is presently in a relationship from a man from Ghana who presently works in China. It is said that in 2009 which is this year, she intends to be come engaged to and marry this man. There is no evidence before the Court from this man. The children apparently have not met him. The mother met him over the internet. In the event that that relationship moves to the point of cohabitation that will be it seems to me, a significant change to [X], [Y] and [Z].
When this matter was listed for final hearing by me I was lead to understand that the only issue was whether the orders which were being proposed by the parties would include [X] living with her siblings in her mother’s household or whether [X] would be split from her siblings and would live in the father’s household.
I was therefore surprised to read the mother’s outline of case document which proposes that the children’s time with their father be reduced from Friday after school to Wednesday to become Friday after school til Sunday evening. Mr Parker was quite clear it seems to me in his report that the children’s time with their father should not be diminished. The mother has not placed any evidence before me to provide any information at all as to why that should be the case. Her counsel commenced the trial by saying indeed that the mother’s position had changed and what she now said to be her preferred outcome was that [X] have 50/50 with both of her parents and the younger children having a lesser time.
I pause to comment that Mr Parker had suggested to [X] that there may be a possibility of compromise between what she said her preferred position was and what the mother’s preferred position was. Mr Parker was at pains to ensure that [X] understood the notion of compromise and it seemed to us that she did. The compromise that Mr Parker proposed to [X] was that the younger children spend time with their father from a Friday after school til a Wednesday, that [X] join them at that time and that [X] remain with the father until the Friday. That proposal would mean that [Y] and [Z] would return to their mother’s care on the Friday having had five nights with the father and that [X] would return to the mother after having had seven nights.
[X] said to Mr Parker that she understood that that would be a compromise and that was not her preferred option.
Mr Parker and I asked [X] how she would feel if an order was made that which was different to that which she had told us was her preferred option. She told us that she would feel angry.
Mr Parker mentioned in Court that he had not seen [X] angry. But it’s clear on that night in September when there was particularly bad trouble that [X] was angry and it is also clear from school reports that she has some anger at times at school. Mr Parker was very concerned that the young woman who he had now seen a couple of times who presented in an inhibited, and at times I guess passive way, could have such a presentation of aggression at times. Mr Parker considered that a demonstration of that kind of aggression was to be avoided; that it would be no good for [X] to have those sorts of outbursts and that he would be concerned if that was something which she was going to be going through in the future. He considered that the possibility of [X] having difficulties with aggression could be a risk for her.

The mother’s position at trial then is not completely clear to me, the lack of clarity may in part have been fed by counsel for the mother seeming to not be clear as to what [X]’s expressed wish was.
Mr Parker’s position in the family report was that the separation of siblings should not ordinarily be contemplated because of the level of protection that siblings give to each other when their parents are in an intractable dispute. These parents have been in an intractable dispute. Their method of communicating with each other is worse than poor. The events in September 2008 reflect very badly on both of them. They have very different parenting styles which in and of itself should not be the cause for concern or complaint. But somehow these parents have allowed that to be the case.
The father’s parenting style includes being structured and having routines, both of which are absolutely necessary considering the number of children in his household and the fact that both he and Ms P are in employment.
The mother clearly has a less structured household and that of itself is no cause for complaint.
The fact that [X] now says that she prefers the greater level of structure in the father’s household may indeed be one way for [X] to express her present wish to spend more time in her father’s household. Further it may be the case that the level of dispute between both of the parents has reached a point where it is beginning to adversely impact upon [X]. I asked [X] what she thought about her parent’s way of interacting with each other and I think the word she used was that it’s silly.
I had the benefit of seeing both the father and the mother cross examined. The father was robust in his views, he was articulate, he was definite and he was deliberate.
The mother in cross examination was of the view that she provided for [X] a level of structure and routine that [X] required, that she was appropriately supportive of [X]’s attention to school and homework and she proffered the view that [X]’s two recent suspensions from school stemmed from a combination of [X]’s confusion as to her present status and some other behaviours more typical of a 13 year old including pushing boundaries and some attention seeking. The mother wondered whether [X] was wanting to play her parents off one against the other.
It was submitted on behalf of the mother that I should take less notice of [X]’s wish, that [X] was young and confused and the fact that she had changed her mind a couple of times about the father indicated her confusion and the fact that her wish may not be reliable. It was submitted that [X], having now come into puberty, the best person for her to be assisting her was her mother. It was submitted that the accommodation in the father’s household and the sheer volume of people there was not to be preferred over the arrangement in the mother’s household. I was reminded that for a period of nine months [X] had had no time with her father. It was submitted that there was a prospect that [X]’s schooling might become an issue in the father’s household.
It was submitted on behalf of the father that I should be taking [X]’s views and wishes and giving them such weight so as to make orders in terms of what [X] had as her preferred option. It was submitted that the issues raised by counsel for the mother were not relevant factors in so far as the accommodation was perfectly ample, the father was more than capable of dealing with the issues of puberty, that there was no issue about schooling save any issue that may arise if the child is excluded from the school.
The solicitor for the father also submitted that the mother’s amended oral position of equal time for [X] was not going to be in [X] best interests because of the vast differences in style between the two households and the intractable conflict between the parents.

The law

I turn now to the law. The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (“the Act”). In any decision which I make the best interests of the children must be paramount. The objects and principles of the part of the Act which relate to the matters to do with children are set out in s.60B. I’m mindful of the fact that it’s legislatively provided that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
…
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Importantly the principles include that parents should agree about the future parenting of their children. I was most disappointed that the parents having invited me to speak with their daughter did not take on board what was relayed to them as being the contents of that conversation such that they could then agree about future parenting for [X].
The Family Law Act 1975 requires me to turn my mind to whether the parents of [X], [Y] and [Z] should have equal shared parental responsibility. As I would understand the positions of both the mother and the father, neither of them seeks to rebut that presumption. Indeed there is nothing before me that would cause me to rebut the presumption: there are no issues with respect to abuse or family violence which have any particular impact. There was poor behaviour on the part of the parents in September last year. The mother is under an undertaking to remain to be of good behaviour and not to commit any act of domestic violence towards the father. I intend during these orders to release the mother from that undertaking because it seems to me that both of these parents upon the orders of Federal Magistrate Jarrett have been able to put the Court’s orders into effect. I anticipate the same will happen after these orders are made.
There will be an order that the mother and father continue to have equal shared parental responsibility. That being the case the Court is required pursuant to s.65DAA to consider the children spending equal time or substantial time with each parent in certain circumstances. Those circumstances are if it is considered by the Court to be in the children’s best interests and if it is reasonably practicable to do so.
I will quickly deal with the reasonable practicability. The parents live some little distance from each other. The children when they are in the father’s care are able to attend the schools that they have otherwise been attending in the mother’s care. The children are able from the mother’s household to get themselves home from school back to the mother’s household. In the father’s household, he is able to make arrangements for them to be driven to and from school. There are no issues particularly of reasonable practicability which are pertinent to my considerations.
In terms of how I determine the best interests of the children particularly in light of the legislative requirement to turn my mind to equal time and failing that to substantial and significant time are through the factors set out in s.60CC. Section 60CC(2) tells me that the primary considerations are twofold – the benefit to the children of having a meaningful relationship with both of the child’s parents and secondly the need to protect the children from physical or psychical harm from being subjected to or exposed to, abuse, neglect or family violence.
It is clear in this matter that all three children are wanting to, keen to and indeed do have a meaningful relationship with both their mother and their father. I am concerned the intractable dispute between the parents has had an adverse impact upon the children in the past and will continue to do so in the future unless the parents work out a way of keeping their adult issues separate from the parenting issues. Other than that there is nothing which particularly worries me in terms of matters to do with harm.
The Family Law Act 1975 sets out a raft of additional considerations in s.60CC(3). Those considerations are all to be viewed in the light of the particular circumstances of every individual case. They are not a proforma. They are not a formula. They are not set out in order of their priority - the fact that that one factor comes higher in the list than the other does not afford it more precedence. In any particular case there may be matters which have more relevance than others. In some cases some factors will have no relevance.
In this case I have been asked by the parents to make orders with respect to all three of their children. The trial focused on [X]’s wishes. [X]’s wishes included the separation of siblings. Mr Parker was aware of that when he wrote his report. His outcome in his report was to go against [X]’s wishes because he was not satisfied that the wishes that she expressed in the interview were ones which were reliable. He was concerned that she was inhibited and that her wishes presented as being contrary to some of her views about her father and her relationship with her father. That concern about the weight that could be afforded to her wishes, along with the fact that her wishes contemplated the separation of siblings (something which the Court will only do in certain circumstances) lead Mr Parker to his conclusion in his report that the three girls should remain living with their mother with the extended long weekends with their father.
As I understand Mr Parker’s view about how [X] presented when spoken to at the Court by Mr Parker and myself there was a marked difference in her presentation to how she had been at the family report interviews. [X] was much more able to express her reasons for wanting to be with her father and presented them in a quiet and sensible manner. It is interesting to note that both of the parents had expressed to Mr Parker during the family report interviews that [X] was a mature 13 year old. Mr Parker at that stage had not been so sure. He reflected on that in his evidence in Court that she had presented more maturely during our interview with her at the courtroom.
The fact is that the mother’s outline of case document presented a position of the mother of wanting the children’s time with the father limited to the short every second weekend. The mother had not filed any updated material. The mother’s counsel said that after Mr Parker had given his evidence she had revised her position to say that [X] could spend 50/50 with her and the father. I did not understand her position to include that the two younger girls would spend longer than every second weekend in their father’s care.
It is not the case that the Court therefore is simply being asked as to what is in [X]’s best interests. The Court is being asked as to what is in the best interests of all three of the subject children. [X]’s interests can not be put above those of the other two girls. The Court does not rank the importance of any of the children so as to afford one or more greater assistance than the others. When I am turning my mind to what is in the best interests of the children it must be to the interests all three of them.
It was clear that [X] was saying that her two younger sisters should properly stay with their mother and they would miss their mother if they were not there and indeed the family report reflects this. [X]’s wishes have been expressed clearly and I have set them out earlier.
In terms of the nature of the relationship that the children have with their parents and any other persons it is clear that the children love their mother and their father. It is clear that the children have lived with their mother and spent time with their father. Their mother has been their primary carer. I am not aware of anybody on the mother’s side who is of particular noteworthiness in terms of the nature of the relationship that the children have. On the father’s side there is his present wife, her three daughters and the half brother, the baby [D]. Clearly the father’s relationship with Ms P and Ms P’s children has become important to [X] in recent times. There is no evidence before me as to the level of importance those relationships are to [Y] and [Z] in the same manner that [X]’s relationship is highlighted to me.
In terms of the willingness and ability of both the mother and the father to facilitate and encourage a close and continuing relationship between the children and the other parent, I must make both parents culpable for the poor relationship that the children have had with the father. It is simply not good enough for the mother to have allowed [X] to have gone for about nine months without spending time with her father. The child was in the mother’s care: it was the mother’s duty to facilitate the relationship between the child and the father. The mother failed to do that. The two younger children continued to see their father and the mother’s acquiescence to [X]’s wishes at that time clearly demonstrates the mother’s attitude to the father in [X]’s life. This reflects very poorly on the mother.
The only evidence that I have about how the arrangements have been working since the interim orders comes from the family report and the father’s updating affidavit. There is nothing that would cause me to be concerned that the orders won’t be complied with in the future from either the mother or the father.
In terms of the likely effect of any changes of the children’s circumstances including the likely affect on the child of any separation from either of their parents or from any other child, it is important here to focus on the separation of the siblings. There are other separations of course, contemplated through [X]’s preferred option. [X] will be separated from her mother for nine nights out of every fortnight, she has been in her mother’s care all of her life and particularly post separation. [X] had the view that her sisters wouldn’t be able to move with her because they would miss their mother too much. She also had the view that she would be seeing her sisters for ten nights out of every fourteen and she would see her sister [Y] at school. The separation then from [X]’s perspective would be slight.
Could the Court reasonably expect that for [Y] (who is 12 and in grade 8) and [Z] (who is 10 and in grade 6) the separation likewise would be of little consequence? I can not make that finding.
The separation may well be of greater consequence to them than it is to their older sister and will need to be managed effectively and supportively by all of the adults involved.
The other matter which it seems to me needs to be considered under this particular head is the likely effect on [X] in the event that the Court does not give weight to her wishes such that the orders reflect her wishes. I’m mindful of Mr Parker’s concerned about [X]’s aggression and that [X] herself used the feeling of anger as being what her reaction will be if the orders made are not those which reflected her wishes. [X] is very much a girl in the throes of adolescence and with the capacity to know her own mind on any given day. Mr Parker was of the view during the family report writing process that [X] would deal with any disappointment in her wishes not being put into effect. I am not so sure.
In terms of the practical difficulty and expense. There are no particular issues which take great relevance in this matter. Both of the parents have the capacity to provide for the needs of the children including the emotional and intellectually needs, although some criticism has been made by the father of the mother’s attention to [X]’s schooling. [X]’s schooling has been let down by [X] and her mother. [X] has not attended school as she should. There have clearly been issues for [X] and whether they arose solely from school or through some other process as well, I am unable to tell. But the fact that she has so many days absent and has not paid attention to her homework as she should, must reflect on the mother’s care.
The father has a different approach in his household. There is much more structure and organisation. [X] presented as going happily from her father’s place to school, although there have clearly been some recent difficulties whilst the current arrangements has been in place.
In terms of any characteristics of the children that are particularly relevant, submissions were made on behalf of the mother that as [X] is a girl going through puberty, her mother was in the best position to attend to any needs arising out of that stage of development. [X] has apparently spoken with both her step mother and her father about matters to do with menstruation. It would seem clear that [X] would prefer to talk to a woman about this than a man and Ms P has been available in the father’s household to do that. I note that there is no evidence before me from the mother that [X] has had any particular needs to have those discussions with her - there being no updating affidavit. I am not minded to base any part of the outcome of the final hearing on a preference for a 13 year old girl to speak to a female about her periods. The arrangements in the father’s household which provides for Ms P to speak to [X] are more than adequate.
[Y] and [Z] are younger than their sister: one has just started high school, the other one is nearing the end of her primary school years. They likewise presented to Mr Parker during the interview as being inhibited, the conflict between their parents has no doubt rained on them heavily as well. [Z] being the youngest seems to be the least affected. It seems to me the parents need to reflect on how their children have presented and look in their hearts as to whether any of their actions could properly be held responsible for this outcome.
In terms of the attitude to the children and to the responsibilities to parenthood demonstrated by each of the children’s parents, I’m satisfied that this mother and father both in their very different ways strive to do what they think is best for their children. They do have different of going about ways of doing things and it is because of those different ways that the argument is made that an equal time arrangement for [X] will not be in her best interest. The father says that he needs to have [X] living with him predominately so that he can have the necessary input made into [X]’s education and development.
He says and I accept that he was very concerned when [X] recommenced to spend time with him that [X] had not turned her mind to the purpose of her schooling and where she may go career wise. He was concerned that a child heading into year 9 had not properly considered matters to do with her career. Certainly within the father’s household, his focus on manners, behaviour and achievement would appear to be much more formulated and adhered to than in the mother’s household.
Both of these styles of parenting have their positives.
[X] it seems to me is currently calling out to take the positives that are found in the father’s household. The two styles of parenting and the two separate sets of ideas as to what is important are too different for a child to be able to thrive spending equal time in both households. It seems to me that the answer in this case must require a predominate time for each time with one of their parents. I do not find that it is in the best interests of the children to have equal time with their parents.
It seems to me that it is important for the children to have substantial and significant time with the parent with whom they are not living. Substantial and significant time has a legislative definition. The mother’s outline of case document does not suggest substantial and significant time although it seems that her oral application did at least provide for equal time for [X]. As I say I am not clear whether she meant to have the two younger girls having substantial and significant time with their father.

If the children are with the parent with whom they do not live from after school on a Friday to school time on a Wednesday every second then they will be able to spend week day and weekend time. There will also of course be provision for half school holidays.
The remaining question then is whether [X] should have the same time moving between her mother and her father as [Y] and [Z] or she should have the time reversed for her. It seems to me that the evidence which I have upon which to base this decision has its limitations. The mother has not filed any updating affidavit. The father’s updating affidavit refers only to [X] which may be because he understood that the only issue was whether the orders for particular time spent should be reversed with respect to [X]. But as I said at the outset this decision can not be only in [X]’s best interests but must be in the best interests of her two younger sisters as well.
I’ve come to the view that [X]’s relationship with her sisters will be able to thrive and remain meaningful even if she is not living in the same household as them fourteen days out of every fortnight. I’m also of the view that if [X]’s wishes are not afforded the weight that [X] would prefer such that she is thwarted in her desire to live with her father that [X]’s unhappiness may flow through to anger and that her sisters may at times be exposed to that. I can not see that [X] being angry in her mother’s household would be good for her relationship with her sisters or good for her sister’s full stop.
The proposal that the younger girls [Y] and [Z] have every second weekend for the expanded weekend in their father’s household and that [X] have the same on the alternate weekend allows these girls to have ten nights out of every fourteen in each other’s company. So long as [X] remains at the school she is presently studying at with her sister [Y] she will have the possibility each and every Thursday to run into [Y] at school. In two years time [Z] will be in grade 8 and [X] will be in grade 11 and they will all be at the same high school so long as [X] remains at school. In the event that Education Queensland forms a view about [X]’s continuation at the school she is presently at, that matter will be beyond the jurisdiction of this Court.
I am also of the view that the mother and father through the inability to work through their high level of conflict have assisted in creating a situation where their daughter’s may no longer live together permanently. It is a big step to separate siblings. Siblings provide a buffer for children who are moving between two households where the adults clearly don’t respect each other. It is difficult for children to move between households where there is that level of conflict.
In this situation [Y] and [Z] will continue to have each other to share that burden. [X] will carry that burden on her own, but it will accord with her wish. I’m satisfied that [X] has, doing the best she can as a

13 year old, thought through the possibility of not living properly with her sisters and that the benefits which await her through longer periods of time in her father’s household will assist her if there are difficulties arising.
I’m satisfied in all of the circumstances that [X] should live with her father and that [Y] and [Z] should live with their mother.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Demack FM

Associate: E Crutchfield

Date: 9 April 2009

Corrections

1. The child’s name “[omitted]” was amended to “[Y]” in Order (4).