PEEL & HANNAN

[2013] FCCA 196

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEEL & HANNAN [2013] FCCA 196

Catchwords:
FAMILY LAW – Parenting – interim orders - best interests – children and father (religion omitted) – mother (religion omitted) – issue to do with children’s attendance at (omitted) religious classes whilst in mother’s care – consideration of recommendations of family report writer.

Legislation:
Family Law Act1975, Part VII, s.60B

Cases cited:
Goode & Goode [2006] FamCA 1346

Applicant: MS PEEL

Respondent: MR HANNAN

File Number: BRC 7630 of 2011

Judgment of: Judge Purdon-Sully

Hearing date: 26 March 2013

Date of Last Submission: 26 March 2013

Delivered at: Brisbane

Delivered on: 26 March 2013

REPRESENTATION

Solicitors for the Applicant: McNamara & Associates

Solicitors for the Respondent: Nyst Lawyers

ORDERS

1. That the Orders dated 29 March 2012 be varied to provide that the children, X born (omitted) 2005 and Y born (omitted) 2006 (“the children”), commencing from the start of the school term after Easter 2013, shall live with both parents equally in alternate weeks, with changeover being at school each Monday, with one parent to deliver the children to school in the morning and the other parent to collect them from school in the afternoon.

2. That by no later than 4.00pm on 23 April 2013 the parties shall complete a post parenting orders program.

3. That the parties shall comply with any reasonable direction of the program coordinator and in particular:

   (a)attend as requested for the purposes of assessment as to whether they are suitable for participation in the program;

   (b)advise the coordinator of their contact telephone number and advise the coordinator of any change in that number; and

   (c)attend and participate in the program as requested including attending referrals to treating health professionals as recommended by the program coordinator.

4. That pursuant to s.121 of the Family Law Act 1975, both parties be granted leave to publish a copy of the following documents to the post parenting orders program coordinator:

   (a)Family Report prepared by Ms W dated 12 March 2012; and

   (b)Family Report prepared by Ms W dated 20 March 2013.

5. That the children be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings.

6. That this matter be adjourned for Mention at 9.30am on 3 July 2013 in the Federal Magistrates Court of Australia at Brisbane.

7. That this matter be set down for final hearing for not more than two (2) days in the Federal Magistrates Court of Australia at Brisbane on a date to be advised.

IT IS NOTED:

A.That it is requested that the Independent Children’s Lawyer give consideration to the preparation of a cultural report to assist the Court in these proceedings.

B.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.

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

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT BRISBANE

BRC 7630 of 2011

MS PEEL

Applicant

And

MR HANNAN

Respondent

REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore and corrected for literal and grammatical errors.

Introduction

1. In this matter, the parents of X, born on (omitted) 2005, and Y, born on (omitted) 2006, are unable to agree on the interim arrangements for their children. 

2. The father is an (religion omitted) and the mother, who was born in (omitted), describes herself as a (religion omitted). 

3. The children have been raised in the (religion omitted) faith.  There is no issue that that should not continue.

4. However, the issue that presents for determination is balancing the children’s need to have a meaningful relationship with each parent, which I assess to be in their best interests, whilst supporting their religious practices.

5. Whilst the parents agree that a week-about care arrangement with changeovers on a Monday should be implemented, in line with the recommendations of a Family Report dated 20 March 2013, prepared by the court expert, Ms W, what they are unable to agree on is whether during the time that the children spend with their mother, they should continue to attend (religion omitted) educational classes, known as (omitted), which they do four afternoons a week from 4.15pm to 5.15pm whilst in the care of their father.

6. These classes involve, amongst other things, the learning of the (omitted) language and the history of their faith.  There is also a social aspect to class involvement. 

7. The father is prepared to undertake all of the transport arrangements for the children to enable their attendance (omitted) in the mother’s week.  He will also agree to some make-up time on his weekend for the time that they miss with their mother.

8. Whilst the mother does not oppose the children’s involvement in (omitted), she does not wish them to attend when they are in her care.  It is her case that they can continue their studies in the father’s week and that the father prioritises the children’s religious routines and observances over their relationship with her.

9. The mother’s detailed proposal is contained in a Minute of Order handed to the Court yesterday by her lawyer, Mr Millwater. 

10. I have had the benefit of oral submissions.  I do not propose to respond to every submission made, but in reaching my decision I have considered all submissions.  I incorporate into my ex tempore reasons the various affidavits that have been relied upon by the father and mother in the proceedings to date, together with Ms W’s two reports and a letter from Mr P which was marked exhibit 1.  That letter details the importance of regular continuous attendance at (omitted).  Its receipt was objected to by the mother, however, I ruled that it be admitted into evidence.

11. The mother sought a hearing on an interim basis at short notice yesterday.  There were financial considerations for both parties if the matter was to be adjourned to another day.  I could not accommodate an early trial of the matter.  This influenced the mother in seeking to proceed expeditiously by way of an interim hearing.  I agreed to that course in the particular circumstances that presented.  There was some urgency, given that Ms W’s second report was recommending the implementation of a week-about parenting structure by Easter and Mr Millwater for the mother described the parties’ differences in relation to the children’s attendance at (omitted) during the mother’s week as an intractable dispute. I think those were his words.

12. Mr McAdam for the father raised the issue of placing before the Court some further evidence in relation to the importance to (religion omitted) children of (omitted) education.  Whilst I accept that that evidence could have been placed before the Court in the previous 12 months, the parents had reached agreement on a particular interim basis following the handing down of the first family report and the matter had been listed before me by way of mention only yesterday.

13. Accordingly, I cannot criticise the father for failing to place that evidence before the Court earlier or in a sworn format. 

14. Having, however, determined to hear the matter by way of an interim hearing yesterday and having stood the matter down until 4.00pm, Mr McAdam sought some evidence from Mr P in the intervening hours.

15. Whilst its receipt was objected to by Mr Millwater, he did not seek an adjournment of the hearing to enable the mother an opportunity to more fully consider the contents of the letter and respond.  It was open for him to do so.  That is not a criticism, by any means, but having considered the contents of the letter in my discretion, I admitted the letter into evidence, having deemed it procedurally fair to the father, in my view, in all of the circumstances, that he be permitted to adduce some evidence even at that late stage.

16. The question of what weight the Court is able to attribute to its contents, however, at this untested stage of the proceedings is another matter.  That is not a criticism of Mr P or Mr McAdam.  Mr P acknowledges the limited time within which he had to respond and noted that with some more time, the (omitted) would be able to substantiate their views on the matter in a concise report.

17. If the matter proceeds to trial and this issue remains a live one, then both parties will be able to adduce evidence on the matter which can then be fully tested, if required, or it may be appropriate to have the evidence adduced by a single expert.

18. In addition to the material to which I have referred, I have the evidence of Ms W, the court appointed expert, to which I will make reference. I accord significant weight to her assessment and conclusions in two reports, at this stage of the proceedings.  There was no issue that her reports should be admitted into evidence, notwithstanding that they were not in a sworn format. I intend to mark her first and second reports as exhibits 2 and 3 respectively, as I did not do that yesterday.

19. Ms W’s reports outline her qualifications and employment history.  She identifies in her reports the material provided to her to which she had regard.  Her reports were also based on a series of interviews, including with the children, and her observations of the children with their parents, the mother’s partner and the children’s step-sibling, Z. With respect to Z that took place during the second interviews. 

20. Ms W’s observations are enhanced by the fact that she has undertaken two sets of interviews with this family some 12 months apart. 

21. Her evaluation is contained in paras. 186 to 212 of her first report and paras. 94 to 113 of her second report.

22. The children do not present with any developmental concerns.  In the first interviews they were assessed by Ms W as both missing their mother.  However, X was assessed as being more aware of the family dynamics and her father’s expectations, and less inclined to speak as openly as Y. 

23. Ms W concluded at that time that they were unable to express their feelings to their father about being sad with respect to their mother and were bearing that sadness alone for fear of disappointing him or evoking his disapproval.

24. It was her view that the father was probably aware that the children were wanting to spend more time with their mother, but in her view, had clearly prioritised other issues above the mother-daughter relationship.  Ms W observed, at paras. 199 and para 200 of the first report, the following:

    “199.    X and Y are little girls and it is natural that they would want to spend more time with their mother.  I would expect that this yearning to be with their Mother will only increase as time progresses, particularly if the children are prevented from having reasonable time with her.

    200.  I am concerned that if the children’s views are not listened to and responded to at some level, they are likely to react angrily, particularly in the future, when they reach their teenage years.  At this stage, the children are still young and anxious about upsetting their Father, however, as they grow up and develop as individuals, it is likely that they will be more outspoken in their views.  If the children’s views are consistently ignored and dismissed, then it is likely that their reaction will eventually be expressed through their behaviour in some form.”

25. In recommending increased time with their mother in her first report, Ms W went on to observe the following at paras. 206, 207 and 208 of her report:

    “206.    At this stage, I recommend an increase in the Mother’s time with the children so that she has them for a block of 5 day consecutively, from Wednesday- Monday each alternate week, and for half of each holiday.

    207.  This allows for the children’s time with their Mother to increase gradually, and for everyone to have a chance to adjust to the changes.  I note that Mr Hannan’s major objection to the Mother having more time with the children is that she does not ensure that they adhere to the guidelines of (religion omitted) living as he expects, and that she does not ensure that they attend (religion omitted) classes.

    208.  In my view, there is ample time in the 9 days that Mr Hannan would have the children in his care to instil the lessons of the (religion omitted) faith, and while they are with their Mother, she should be free to parent them as she sees fit.”

26. Whilst Ms W was not prepared, at that stage, to recommend equal time, as sought by the mother, she viewed that as being possible with time and recommended the parties’ attendance on a post-orders parenting program.  She went on to recommend, as I have indicated, that the mother’s time with the children be increased to five nights a fortnight.

27. I am informed by both of the lawyers today that the parties have not attended the post-orders parenting program and that they are asking the Court to make that order. It is contained in the Minute that was handed to the Court by Mr Millwater yesterday.

28. In her second report, Ms W concluded that the children’s care arrangements were working better and it was her assessment that the co-parenting relationship had improved markedly over the last year. 

29. At the second interviews, the children were noted to be relaxed and happy.  Whilst they had responded positively to extra time with their mother, they continued to want more time with her.  It was noted that they worried about upsetting their father by talking too much about missing their mother.

30. Y was described by Ms W as outspoken, humorous and attention seeking, whilst X was observed by Ms W to be more serious and careful in her comments and that whilst very keen to please her father, was nevertheless assessed as missing her mother and wanting to spend more time with her.  Y was observed to be very upset and cried when she separated from her mother during the course of the interviews. 

31. Both children spoke positively about attending (omitted) College in the future.  (omitted) College is a private school and it is a school attended by Z, their half-sibling.

32. I place significant weight at this interim stage when I am unable to test evidence, on Ms W’s evidence as the independent expert. She has had the benefit of seeing the parents and the children twice and was able to make observations and assessments of the children and the parents relevant to the issues that present on the evidence before me.

Personal details

1. I do not propose to detail the parties’ history as it is covered in the family report, save to note that the mother was born in (omitted) and is aged 31.  She lives with her partner at (omitted).  She refers to herself as being a (religion omitted), although she does not practice her religion strictly.  She is not in employment, but is studying to become a teacher’s aide.  Her partner is an (occupation omitted) and they plan to marry this year.

2. The father, who is aged 45, lives alone with the children at (omitted).  He is a (occupation omitted).  His daughter Z, who is aged 14, is a child from his first marriage.  Until recently, Z has lived with her mother in (omitted) but she is now living with her father and attending school in Brisbane. 

3. Notwithstanding Z’s mother being described in the evidence before me as a committed (religion omitted), Z has been raised in the (religion omitted) faith.

4. The parties were in a relationship for about seven years.  They married in Australia, however, they divorced in (omitted), separating there in 2008. 

Some relevant background

1. Parenting and property orders were then formalised in (omitted) in 2008.  Pursuant to those orders, the children lived with their father and spent alternate weekend time with their mother, including half the school holidays. 

2. In 2008, the parties and the children relocated back to Brisbane.  The mother complains in her evidence of the father adopting an exclusory and controlling role towards her time with the children.  The father asserts that the mother was a disinterested parent and focused on her own personal interests.

3. The mother initiated parenting proceedings in this Court on 31 August 2011. 

4. Both children are now attending school, X in year three and Y in year one at (omitted) Primary School. 

5. Pursuant to interim orders made by consent on 29 March 2012, the children live primarily with their father. The orders were made following receipt of Ms W’s first report dated 12 March 2012.  Those orders provided that the parents share equally the responsibility for major decision making to do with the children’s welfare and there was specific provision in that regard, which included decisions about religious instruction and observances by the children.

6. In line with the recommendations of Ms W that the mother’s time with the children be increased, the orders provided, as I said, for the children to spend time with their mother from Wednesday after school until Monday morning in each alternate week and during the school holidays.

7. Whilst there was provision for the children to spend time with their father during (religion omitted) celebrations, there was no provision that during the time the children were to spend with their mother that they were required to attend (omitted). 

8. It is unclear on the evidence if, at the time the orders were made, they were expected to attend (omitted) four afternoons during the school week, which is the present situation.  The father certainly - I think it was in his Affidavit filed in November 2011 - outlined the time that the children were spending at (omitted) at the time of the swearing of his Affidavit, which differed from – it was something less than the four afternoons a week that they are currently attending whilst in his care.

9. The interim orders provided for the matter to be adjourned for a period of time to enable the parties to engage in a parenting orders program which they have not been able to do and to assess the workability of a week about care arrangement which was being sought by the mother.

10. On 28 November 2012 the matter was listed for mention to come back before me yesterday.

Legal principles

1. The applicable law is contained in Part VII of the Family Law Act and the Full Court in Goode & Goode [2006] FamCA 1346 has outlined the pathway that a court is required to follow in making orders that are in the best interests of children. That pathway is well known and I do not propose to take up time this morning in detailing it. The principles are well known and understood.

2. These proceedings were pending as at 7 June 2012, the relevant date with respect to the introduction of certain amendments to the Family Law Act brought about by the Family Law Legislation Amendment (Family Violence and Other Measures) Act2011.  That means that the provisions of the Act then in force, prior to 7 June 2012, apply to these proceedings. 

Applying the law to the circumstances of this case

1. Both children have expressed a clear, open and consistent wish over time to spend more time with their mother and that their time with her not be interrupted (see para. 112 of Ms W’s second report).

2. Notwithstanding their young age, I place significant weight on their views which support the mother’s proposal. 

3. At para. 113 of her second report, Ms W concluded that the children’s wishes and her observation of the distress of Y in separating from the mother in the course of the interview supported that the progression to a week-about care arrangement being transitioned sooner rather than later. She recommended that from Easter 2013 holidays the parents move to the week-about care arrangement. 

4. However that recommendation was not advanced on the basis that the children must continue to attend (omitted) during their week with the mother, a matter specifically addressed by Ms W in her second report.

1. The children enjoy a positive relationship with both their parents, by all accounts.  They appear to be delightful children and they certainly have beautiful names, X and Y.

2. Whilst these delightful children are obviously a credit to both of their parents, I must and do recognise that it is also to the credit of their father who has been their primary carer since 2008. 

3. Whilst the father has been the children’s primary carer since separation, there is now no issue that the children’s best interests will be served by them moving to an equal-time structure. 

4. There is no evidence to suggest that the children do not enjoy a positive relationship with Z, their half sibling. 

5. The children also have regular contact with numerous members of the father’s family who reside in Brisbane, attending regular family gatherings.  This is not a case where, on the mother’s proposal, they would not be able to maintain that contact with their relatives who are of the (religion omitted) faith, including cousins who also attend (omitted).

6. Whilst both proposals would afford the children with regular time in the care of their parents and the father’s makeup proposal attempts to address the impact of (omitted) attendance whilst in the mother’s care, his proposal involves significant interruptions during the school week at a time when the children are seeking uninterrupted time with their mother.  It does not address the benefits that Ms W identified for the children in having such uninterrupted time - see, for example, paras. 105, 107 and 110 of her second report, including the benefits to the children of having different experiences, whether religious or otherwise, and when the mother can just be with the children as a mother, on Ms W’s evidence.

7. It presents also with practical ramifications for the children’s time with their mother after school, given the time available to them before bed time.

8. It does not address and potentially exacerbates the issue raised by X and identified by Ms W in the second report at para. 67, namely, that it was hard – in X’s view - having two families as sometimes she did not know who was picking her up from school and that it was also difficult sometimes going back and forth.

9. The father’s proposal of makeup time would involve a further period of time when the children will be going back and forth between parents. 

10. There are no concerns about parental capacity.  Both parents are able to meet the day-to-day needs of the children.  Both are able to care for the children before and after school.  I say this notwithstanding the father’s concerns expressed to Ms W in this regard. Ms W did not identify the mother’s behaviour as being unstable or her being unable to meet the children’s needs. 

11. Both parents present as loving, caring parents.  This is not a case where either parent is presently unwilling or unable to care for the children or where either parent presents as shirking their parenting responsibilities.

12. I am required to consider the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.  I am unable to make fulsome findings about this at this interim stage.  The mother, a non-(religion omitted), has agreed and continues to agree that the children be raised as (religion omitted), something that is very important to the father.  I accept the submission that there is no evidence to suggest that her proposal is motivated by any attempt to undermine the children’s belief system, and that was Ms W’s view at para. 111 of her report noted the following:

    “I am not aware of any evidence which indicates that the mother is trying to undermine their (religion omitted) religion or to replace it with her own religion, but simply that she does not want their time to be consumed by this during her week, when she believes that they could be doing other activities or just spending time with her, which is also beneficial to them.”

13. The mother’s evidence is that while she is prepared to be flexible, the father presents as controlling and minimising of her role in the children’s lives.  It was Ms W’s assessment in her first report that the father had prioritised other issues ahead of the mother/daughter relationship, in her view. However, they were observations that were made at that time.  Happily and to their credit, both parents informed Ms W in their recent interviews of improvements in their communications and co-parenting relationship since her last report.

14. Both agreed that the children have responded positively to the extra time with their mother and the father has now abandoned his proposal that the implementation of the equal-time arrangement be delayed for a further period of time.

15. The parents’ cultural background and the issue of religion, particularly (omitted) attendance, is obviously a significant issue in this case.  It will be a matter for tested evidence if this matter does not resolve. 

16. Clearly, it is in the interests of these children, who love their parents, to develop a meaningful relationship with each of them.  As I indicated earlier, it is a question of balancing that need whilst, at the same time, supporting their cultural and religious practices.  In the light of the decision of their parents that they be raised as (religion omitted), the involvement of an Independent Children’s Lawyer to marshal appropriate evidence in this regard may assist the Court and I shall return to that issue later.

17. I am unable to conclude that the mother’s proposal does not appropriately address the children’s religious observances at an interim stage.  Ms W observed that the father did not present as particularly extreme in this religious views with the children attending non-(religion omitted) schools and participating in a wide range of activities.  He married two (religion omitted) women.  He allows the children to have non-(religion omitted) friends.  He was, however, in her words, “dogged about his insistence of their attendance at (omitted)”. 

18. She assessed the mother’s objection to (omitted) attendance in her time with the children as not an attempt, as I said, to undermine their father, but as an imposition on the mother’s time with the children which was understandable in her view and from the mother’s perspective, the father’s attempt to control and influence the children.  The latter will, of course, be a matter for evidence at trial.

19. Given the children’s identified need to spend more uninterrupted time with their mother, I am concerned that the father’s proposal does not sufficiently support that need notwithstanding his proposal for makeup time.  In reaching this conclusion I have considered as best I can, at this interim stage, the contents of the report from Mr P, limited in its scope and untested, together with evidence that whilst the children have spent less time in (omitted) under the current interim care regime, there is no indication that they are disadvantaged or have suffered spiritually, are at moral risk or that they have been unable to identify with their faith. 

20. The evidence is to the contrary.  Both parents reported to Ms W that the children were doing well and were happy.

21. I accept the evidence of Ms W that the children will continue to gain a knowledge and practice of the (religion omitted) religion during their time with their father. Nor is there any evidence to suggest that if the order was made, as sought by the mother, that interim arrangements cannot be put in place to address the requirements of (omitted) or that if continuous religious education attendance did not occur there would be a significant negative impact on the children’s understanding and experience of their (religion omitted) faith pending trial - or a negative impact on the other matters identified by the father as the benefits arising from religious observance. Ms W outlined at para.53 of second report what the father saw as the benefits arising from religious observance.  He outlines that at para.48 of his affidavit filed on 14 November 2011.

22. There is no suggestion that those benefits cannot be achieved in the father’s week.  The letter of Mr P does not suggest that the children cannot be taught history of religion, the difference between right and wrong, values and ethics, whilst in the father’s care.  Whilst it refers to the difficulties that may present in a disruption to (country omitted) learning, it does not assert that there are no other options for children who are unable to attend regular continuous (country omitted) classes to enable them to retain language learning.  Common sense and experience would suggest that there are.

23. Further, it is an inference that I can draw from the reading of exhibit 1 that children who do have interrupted lessons tend to be placed in lower learning groups.  So there appears to be a process in place to respond to that circumstance.  There is no evidence to suggest that being placed, for example, in a lower learning group, if that was to happen to these children, would stigmatise them or otherwise negatively impact upon them.

24. The father appears to be an educated man.  There is no suggestion that he cannot problem solve with intelligence to respond to non-continuous religious education attendance prior to a trial when there will be a full hearing of all of the evidence.

25. Importantly, and I place weight on Ms W having reported that he informed her that the children know their religious identity, and I refer to para. 51 of her second report.

26. So this is not a case where these children, who have already had reduced (omitted) attendance, are experiencing identity confusion.

27. The mother was reported by Ms W as having an understanding of the issue and of not wanting to confuse the children or make their lives more difficult.

28. It was Ms W’s view, at para. 109 of her second report, that if the children spent a whole week with their mother without attending (omitted) or the evening meal at their uncle’s house on Friday, and in relation to that - that is the evening meal, that was not agitated by the father before me - there is no evidence in her report that they would be placed at a disadvantage.  Y had indicated to Ms W that she enjoys the break.  It does not appear to be an issue for X as the father is reported to have informed Ms W at para. 56 of her report that X was protective of the mother and made excuses for her if she did not take the children to (omitted).

29. Further, Z, who is attending (omitted) College, does not attend religious classes.  She remains, however, a practising (religion omitted) having been primarily raised, on the evidence, by a devout (religion omitted). 

30. Nor does the evidence enable me to conclude that the children cannot maintain pending trial, an (religion omitted) lifestyle and values whilst in their mother’s care.  The mother was at pains to point that out.

31. It is not whether they are raised (religion omitted), but, pending trial, whether their failure to fully engage in what appears to be religious education classes, only a part, I should say, of their religious upbringing until age 12 years, will negatively impact upon them in some way. 

32. Ms W observed, at paras. 201 and 202 of her first report, the following:

    201.  It is understandable that Mr Hannan might wish to protect and shield the children from what he considers to be undesirable influences, however, they are growing up in a modern, multicultural society and having regular contact with peers from a range of different families.  They will be having regular time with their Mother so it is unavoidable that they will be confronted with a range of different ways of living, and social values.

    202.  This raises the question as to whether it is actually detrimental to the children to be exposed to different ways of living in each household, or whether this ia a matter of Mr Hannan wanting to maintain absolute control over his daughters, at the exclusion of their mother.  In my view, there needs to be a compromised position reached whereby the children are able to maintain a commitment to their (religion omitted) religion, but at the same time, this should not detract from them being able to develop a meaningful relationship with their Mother, which necessarily involves them spending more time with her.”

33. At para. 107 of her second report she observed the following:

    “Mr Hannan needs to appreciate that the children have two parents and that they can benefit from them both in different ways, although they are not both (religion omitted).  Ms Peel has not actively promoted her (religion omitted) religion to the children, as she realises this would be too confusing for them at their age given the intensive instruction they are receiving during their father’s time.  In this sense, she has allowed Mr Hannan to raise the children as (religion omitted), and it seems that the children understand this and have a developing understanding of what their religion involves.”

34. At para. 110 of the report she goes on to pick up some of the views that she expressed in her first report, and that is:

    “In my view, the children will benefit from the different experiences gained in each household and Mr Hannan needs to appreciate that their time with their mother also needs to be valued.  Knowledge and practice of their (religion omitted) religion that they gain during their time with their father will certainly hold them in good stead during their mother’s week and their lives generally, however, I see little point in trying to coerce Ms Peel in this respect.”

35. I place significant weight on those views which are open on the evidence before me, albeit untested. 

36. In my assessment of the proposals before me I must also take some small account of the fact that, whilst neither child is currently attending extra-curricular activities, both parents in their interviews with Ms W contemplate that this would occur.  The father outlined in his evidence the numerous past extra curricular activities that the children had been engaging in during the school week and on weekends, and both girls seemed to be interested in pursuing particular additional activities which will also need to be accommodated by their parents in the context of the time they spend with each of them.

37. On the mother’s evidence, the father engaged in acts of domestic violence during their relationship, including physical violence, and he engaged in family violence with a nanny he had previously employed to care for the children and he exposed the children to this.

38. She asserts that he has acted in the past in a controlling, abusive and dismissive way towards her. 

39. The father denies these allegations. 

40. The father also asserts that the mother engaged in domestic violence during their relationship. 

41. I am unable to make any findings on the untested evidence.

42. These are interim proceedings and consequently my consideration of what orders are least likely to lead to further litigation and the appropriateness of making those orders will be a matter for trial. 

43. Other than the practical implications for the children during the school week in reducing their time with their mother, which I have earlier addressed, there are no other issues of practical difficulty and expense to which I need turn my mind.

Conclusion

1. Whilst the children’s ability to be raised in and observe the tenants of their (religion omitted) faith, including attendance at religious education or classes, is a consideration to which I accord significant weight, it is of no lesser importance than their relationship with their mother and their need to spend frequent, regular and uninterrupted time with her.

2. Where there is a tension between the two then the former must give way to the latter in the circumstances of this case, given my assessment on the evidence of the importance to the children of their relationship with their mother and their desire to spend additional time with her. 

3. This factor is a primary consideration under the Act. I also note with respect to the objects of Part VII of the Act and the principles underlying those objects which are set out in s.60B, one of the objects is ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children.

4. I also have reference to s.60B(2)(a), (b) and (e) namely that children have a right to know and be cared for by both their parents regardless of whether they are separated; that children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents that the children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture.

5. I am unable to conclude in balancing the children’s right to have a meaningful relationship with both their parents in their best interests, that the mother’s proposal risks undermining their cultural and religious practices or belief system or presents as an unacceptable risk to the children’s emotional and psychological development were they not to attend (omitted) during the week that the children lived with their mother pending a final hearing of this matter.

6. I place significant weight on that finding, which will enable the children to maximise their time on the mother’s proposal in an uninterrupted way whilst in the care of the parent with whom they have been consistently seeking to spend more time. 

7. Whilst the father’s views, strongly held, are not irrelevant, the children also enjoy a very close relationship with him and at least one is mindful of his views about (omitted) attendance.

8. There is no evidence to suggest that he is likely to decompensate if the children did not attend (omitted) every week or that there would be some negative impact in his parenting of the children as a consequence.

9. My preliminary assessment of the evidence, albeit untested, is that the father does not present as a religious zealot; an observation that was made by Ms W, albeit not using those words.  Indeed, the history would tend to suggest some pragmatism in his adherence to the tenets of his faith, notwithstanding what I accept are views about religious upbringing which are clearly important to him and should be respected.

10. I also note that the father had made a number of compromises in the orders that both parties sought that the Court make yesterday in the context of the implementation of the equal-time week about regime, the father having informed Ms W during the course of the interviews for the second report that he was seeking that that implementation be delayed for a period of time.

11. Whilst it is an option for the Court to put in place an arrangement that would see the children continue (omitted) in their mother’s week pending trial, the mother’s proposal more appropriately addresses a balancing of the issues that present and that I have identified.

12. It is, of course, in line with the recommendation of the court expert whose reports I have accorded significant weight.

13. The mother seeks a continuation of the interim order made for equal shared parental responsibility.  The father did not respond to that yesterday. It did not appear to be an issue.  Notwithstanding my inability to make findings relevant to family violence issues, it is appropriate that I continue that order at this interim stage.  The children, in my view, would clearly benefit from both parents engaging in decisions to do with their long term care and welfare.

14. Both parents agreed to equal time and it is clearly appropriate for me to make that order.

Orders

1. Now, in relation to the orders then that I am intending to make, those orders are in line with the mother’s proposal.  The mother seeks the orders in a Minute was handed up. That minute is quite detailed.  It seems to mirror the orders that were made in March.

2. I am also going to make an order that the parties attend a post orders parenting program.  I think it is important that they do that.  Notwithstanding that they had not, they have made some considerable ground in relation to the improvement of their co-parenting relationship. However there does not seem to be any objection in my making that further order.

1. I will make an order that the parents, within 28 days of today’s date, enrol in a post parenting orders program and that either party be at liberty to provide to the coordinator of that program copies of Ms W’s reports.

2. Having heard submissions from the parties I appoint an Independent Children’s Lawyer. I am satisfied that this matter meet the Re K test in light of the cultural and religious differences.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Purdon-Sully

Date:         3 May 2013