Railton and Railton - [2009] FMCAfam 1282

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAILTON & RAILTON

[2009] FMCAfam 1282

FAMILY LAW – Parenting orders – significant absence of father in day-to-day parenting – where father seeks greater involvement in children’s lives – where both parents express concerns as to the other parent’s capacity to show a responsible attitude to parenting – where each parent indicates a doubt as to the other parent’s capacity to foster a relationship between the other parent and the children – where there is evidence of psychological harm to the children – consideration of a recommendation of ‘parallel parenting’ – rejection of proposal – consideration of principles and best interests of the children.

Family Law Act 1975(Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant:

MR RAILTON

Respondent:

MS RAILTON

File Number:

CSC 693 of 2008

Judgment of:

Coker FM

Hearing dates:

14 & 15 September & 13 October 2009

Date of Last Submission:

13 October 2009

Delivered at:

Townsville

Delivered on:

4 December 2009

REPRESENTATION

Applicant:

Self-Represented

Counsel for the Respondent:

Ms Benson

Solicitors for the Respondent:

Cope Family Law

Counsel for the Independent Children’s Lawyer:

Ms Wilson

Independent Children’s Lawyer:

Newman Family Law

ORDERS

That the Father and the Mother have equal shared parental responsibility for the major long term issues of the children [X] born [in] 1997, [Y] born [in] 1999 and [Z] born [in] 2000 including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision
That notwithstanding Order 1 herein:
(a)The Father shall be responsible for the daily care, welfare and development of the children whilst the children are living with him; and
(b)The Mother shall be responsible for the daily care, welfare and development of the children whilst the children are living with her
That both the Father and the Mother forthwith take steps to commence a parenting program and “Focus on Kids” program and advise the other parent, within 28 days of such arrangements and confirm completion of such programs to the other parent within 14 days of completion.
That the children live with the Father and Mother during the gazetted school term on a week about basis commencing with the Mother from after school Friday 4 December 2009, provided however that the Father has obtained accommodation for he and the children comprising at least 3 bedrooms for the exclusive use of he and the children and that the Father has a motor vehicle available for his private use at all times that the children are in his care and until such time, that the children live with the Father from after school Friday to before school Monday or Tuesday if the Monday is a public holiday or pupil free day in each alternate week during the gazetted school term.
That the operation of Order 4 herein be suspended during the Queensland gazetted school holiday period.
That during the Queensland gazetted school holiday period the children live with the Father as follows:
(a)The entire Easter school holiday period in odd numbered years
(b)For the first half of the Queensland gazetted school holiday period in odd numbered years
(c)For the second half of the Queensland gazetted school holiday period in even numbered years
That during the Queensland gazetted school holiday period the children live with the Mother as follows:
(a)The entire Easter school holiday period in even numbered years
(b)For the first half of the Queensland gazetted school holiday period in even numbered years
(c)For the second half of the Queensland gazetted school holiday period in odd numbered years
That the operation of Order 4 herein recommence with the parent who has not had the children in their care for the second half of the Queensland gazetted school holiday period from 5.00pm on the Sunday immediately prior to the recommencement of the gazetted school term.
That each parent have telephone communication with the children when the children are not in their respective care at times to be agreed and, failing agreement, each Sunday and Wednesday between 6:30pm and 7:30pm with the parent without the children in their care to be responsible for the making of the call and the parent with the children in their care to ensure that the children are available to take the call in a quite and private environment.
That should the children not be in the care of the Father on Father’s Day, then the Father is to spend time with the children from 9.00 am until 5.00pm.
That should the children not be in the care of the Mother on Mother’s Day, then the Mother is to spend time with the children from 9.00am until 5.00pm.
That should the children not be in the care of the Father on the Father’s birthday, then the Father will spend time with the children from 9.00am until 5.00pm in a non school day however, if a school day, for at least two hours.
That should the children not be in the care of the Mother on the Mother’s birthday, then the Mother will spend time with the children from 9.00am until 5.00pm in a non school day however, if a school day, for at least two hours.
That on any of the children’s birthday, the parent with whom the children are not living spend time with the children for (4) four hours as agreed and failing agreement from 1.00pm until 5.00pm however, if a school day, for not less than (2) two hours as agreed and failing agreement from 5.00pm until 7.00pm.
That if in the same locality, the parent not having the children in their care on Christmas Day or Easter Sunday spend time with the children for a minimum of 6 hours at times to be agreed upon and failing agreement between 2.30pm and 8.30pm, with the parent spending time with the children to be responsible for the collection and return of the children to the parent with whom they are living.
That should the parties not be in the same locality on Christmas Day or Easter Sunday then the parent with whom the children are not spending time have telephone communication at a time to be agreed upon and failing agreement from 9.00am, with the parent with whom the children are living to initiate the call to the other parent and to ensure that the children are in a quiet and private environment to make such a call.
That each party be restrained and an injunction issue restraining either party from denigrating the other in the presence of the children or from allowing the children to remain in the presence of any other person acting in such a way.
That both parties shall notify each other as soon as practicable by any means of any illness or serious injury suffered by the children which requires hospitalisation so as to enable the other parent to communicate with an/or visit the child at the hospital.
This Order shall act as an authority for the children’s educational providers to discuss with either parent the care, welfare, treatment and development of the children and to the schools that the children may attend from time to time to provide each of the parents with all information relating to the children’s progress at school, including school reports, newsletters and photographs.
That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Tuesday;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Tuesday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;
(c)The whole of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the Sunday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(d)The parent having the children in their care for the Easter long weekend shall be entitled to the Easter long weekend and the end of Term 1 gazetted school holidays;
(e)The whole of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Friday which follows or is the last day of school to 6.00pm on the Sunday preceding the recommencement of school;
(f)The first half of a gazetted end of Term 2 or end of Term 3 school holiday period shall be from 5.00pm on the Friday which follows or is the last day of school to 6.00pm on the Saturday of the middle weekend of such holiday period;
(g)The second half of a gazetted end of Term 2 or end of Term 3 school holiday period commences at 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(h)The whole of the gazetted end of Term 2 or end of Term 3 school holiday period is 5.00pm on the Friday which follows or is the last day of school to 6.00pm on the Sunday preceding the recommencement of school;
(i)The first half of the gazetted Christmas school holiday period commences at 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling

22 days later;
(j)The second half of the gazetted Christmas school holiday period commences at 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CAIRNS

CSC 693 of 2008

MR RAILTON

Applicant

And

MS RAILTON

Respondent

REASONS FOR JUDGMENT

This application relates to orders sought with regard to the parenting of three young children: [Z], born [in] 1997, [Y], born [in] 1999; and [Z], born [in] 2000. The children are the children of the relationship between Mr Railton, whom I shall refer to as “the father”, and

Ms Railton, whom I shall refer to as “the mother.”
The proceedings were originated by the father. He filed his initial application in relation to these proceedings early in 2008 and subsequently amended the application on 25 March 2009. The orders that were sought on a final basis are detailed in orders 1 through 8 of the amended application. They are as follows:
1.The children [X] born [in] 1997 and [Y] born [in] 1999 and [Z] born [in] 2000 shall live with the father and mother “Equal Share Care” on a rotated weekly basis.
2.The father to have sole authority and responsibility for schooling/educational matters for all of the children.
3.The father to have sole authority and responsibility for medical/dental check-ups and treatment for all of the children.
4.The mother must notify the father by “SMS Text”, no later than 24 hours after any accident or incident relating to any of the children’s health and well being.
5.If the mother proposes to have the children babysat that she will engage in appointing an individual that is “Blue Card” certified.
6.The mother will ensure that all of the children attend to school on time, if any of the children are absent she must provide a GP/Doctors certificate to the school administration.
7.That the mother be restrained and an injunction issue restraining the mother from using her ex-husband “Mr S” to babysit the children anytime in the future, without the written consent of the father or further order.
8.Removal of order No.3 (The father is restrained from holding over the children other than in accordance with the Orders made I the family Court of Australia at Cairns on 7 June 2006).
The mother also responded to the application and amended her response in the latter part of 2009, in fact, just prior to the hearing on 14 September 2009. The orders that the mother sought on a final basis in relation to this matter were very detailed and were in these terms:
1.The children [Z] born [in] 1997, [Y] born [in] 1999 and [Z] born [in] 2000 (“the children”) live with the mother.
2.The mother has sole parental responsibility for the children.
3.The children spend time with the father at all times as may be agreed between the parties and failing agreement as follows:
(a)Until such time as the provisions of paragraph 4 of these Orders are met, from the conclusion of school on Friday until the commencement of school on the following Monday, or Tuesday if Monday is a public holiday, in each alternate week
(b)Upon the provisions of paragraph 4 of these Orders being met, the children spend time with the father from the conclusion of school on Thursday until the commencement of school on the following Monday, or Tuesday if Monday is a public holiday, in each alternate week
(c)For the first half of the Queensland gazetted school holiday periods in odd numbered years and for the second half of the Queensland gazetted school holiday periods in even numbered years
(d)On the father’s birthday from the conclusion of school on that day until the commencement of school the following day or until 9.00am if a non-school day, or where the father’s birthday falls on a non-school day, from 3.00pm on that day until the commencement of school the following day or until 9.00am in a non-school day
(e)On Father’s day from 9.00am until 5.00pm
(f)On each of the children’s birthdays in even numbered years from the conclusion of school on that day until the commencement of school the following day or 9.00am on a non-school day, or where the child’s birthday falls on a non-school day, from 3.00pm on that day until the commencement of school the following day or 9.00am on a non-school day
(g)On each of the children’s birthdays in odd numbered years from the conclusion of school on the preceding day until the commencement of school on the child’s birthday or 9.00am if a non-school day, or where the child’s birthday falls on a non-school day, from 3.00pm on the preceding day until the commencement of school on the child’s birthday or 9.00am if the child’s birthday is a non-school day
(h)From 3.00pm on Christmas day until 3.00pm on Boxing Day in even numbered years unless the mother has taken the children away from the Cairns area on holiday in which case the children shall communicate with the father be telephone with the mother to initiate calls to the father’s landline and/or mobile telephone.
4.For the purposes of the children spending time with the father in accordance with paragraph 3(b) of these Order, the father shall provide to the mother and to the Independent Children’s Lawyer:
(b)evidence of his having obtained suitable accommodation which provides at least for the children [X] and [Y] sharing one bedroom and the child [Z] having her own bedroom, with each of the children having their own beds
(c)evidence of this having his own transport to collect and deliver the children to and from school
(d)evidence of his having at least one set of school uniforms for each of the children
(e)evidence of his having successfully completed a parenting program conducted by a recognised provider of such programs; and
(f)evidence of his having successfully completed an anger management program conducted by a recognised provider of such programs
5.At times when the children are to spend time with the father in accordance with paragraph 3 of these Orders the children shall spend time with the other as follows:
(a)on the mother’s birthday from the conclusion of school on that day until the commencement of school the following day or until 9.00am if a non-school day, or where the mother’s birthday falls on a non-school day, from 3.00pm on that day until the commencement of school the following day or until 9.00am if a non-school day
(b)on each of the children’s birthdays in odd numbered years from the conclusion of school on that day until the commencement of school the following day or 9.00am on a non-school day, or where the child’s birthday falls on a non-school day, from 3.00pm on that day until the commencement of school the following day or 9.00am on a non-school day
(c)on each on the children’s birthdays in even numbered years from the conclusion of school on the preceding day until the commencement of school on the child’s birthday or 9.00am on a non-school day, from 3.00pm on the preceding day until the commencement of school on the child’s birthday or 9.00am if the child’s birthday is a non-school day
(d)on Mother’s day from 9.00am until 5.00pm
(e)from 3.00pm on Christmas day until 3.00pm on Boxing Day in odd numbered years unless the father has taken the children away from the Cairns area on holiday in which case the children shall communicate with the mother by telephone wit the father to initiate calls to the mother’s landline and/or mobile telephone
6.For the purposes of the children spending time with each parent as provided in these Orders, on non-school days the Father shall be responsible for collecting the children from outside of the mother’s residence and the mother shall be responsible for collecting the children from outside of the father’s residence.
7.The children shall communicate with the father by telephone every Tuesday and Thursday and each alternate Sunday when the children are not already in the father’s care, between 6.00pm and 6.30pm, with mother to initiate call to the father’s landline telephone.
8.The father is hereby restrained from and an injunction shall issue preventing the father from:
(a)denigrating, abusing or openly criticising the mother
(b)communicating with the mother other than for some emergent reason relating to the children’s care needs
(c)attending at the mother’s residence or place of employment other than as provided for in these Orders unless agreed by the parties in writing
9.The parties shall communicate in respect of matters relating directly to the care arrangements for the children only by way of a communication book to be exchanged at the time of changeovers.
10.Neither party shall denigrate the other or members of the other’s family in the presence of the children and shall remove them from the presence of other who may be doing so.
11.Both parties shall notify each other as soon as practicable by any means of any illness or serious injury suffered by the children which requires hospitalisation so as to enable the other parent to communicate with an/or visit the child at the hospital.
The parties then had the opportunity to consider their positions in relation to this matter by way of filing of written submissions at the conclusion of the hearing. The mother’s position in relation to the matter remained generally unchanged.
Parental responsibility was still to vest in her and it was the case that the mother proposed that the children live with her and spend time with the father. Her proposals, however, had at least changed to some small extent in that it was her suggestion that time spent by the children with the father be extended so as to commence on a Friday after school until the following Monday, or Tuesday if the Monday were a public holiday, in alternate weeks. The mother’s stance in this regard was, to a significant degree, able to be explained by the concerns that she had in relation to the behaviours of the father in relation to his dealings with her.

The father’s position, however, changed somewhat from the final orders that were sought in the amended application that was filed by him. By that I mean that the father had originally indicated that the would be seeking sole parental responsibility or, at the every least, would be seeking orders which provided for equal shared parental responsibility except in special circumstances and they, in particular, related to a situation which might arise with regard to education of the children, as well as in relation to issues in respect of the medical and dental health of the children.
The father, however, in his final address to the court indicated that his position had changed. He advised that, in the end, his position was to seek that there should be equal shared parental responsibility in respect of all aspects of the children’s lives and, of course, in relation to the long term decisions to be made with regard to the children, that school holidays should be shared between the parents, that during the gazetted school term the children should live with each parent on a week about basis and that whilst he had previously considered that it would be appropriate for there to be sole parental responsibility vesting in him, in relation to certain aspects of the parenting of the children, he had come to the conclusion that that would not be in the best interests of the children and would, as he put it, hinder the parties, “working together”.
He indicated that it was for that reason that there should be an arrangement for equal shared parental responsibility and the utilisation by both parties of the resources and assistance of the other so that they could work together and, more importantly, could be seen by the children to be working together, in relation to the best interests of the children.
It was noteworthy that the Independent Children’s Lawyer, in a case outline that was filed in relation to this matter, had what I might describe colloquially as “a foot in each camp”. The mother still sought that there should be sole parental responsibility whilst the Independent Children’s Lawyer suggested that there should be sole parental responsibility only until such time as the father had completed a parenting orders program and a Focus on Kids program and that thereafter the mother and father should have equal shared parental responsibility. In other words, a reflection of what the father’s final position was in relation to the matter.
The Independent Children’s Lawyer additionally proposed that the children should spend significant and substantial time in each of the parents’ households but suggested that rather than equal time, as the father sought, or a greater limitation, perhaps three or four nights per fortnight as the mother sought, that it should be an arrangement which would involve, initially, only Friday until Monday or Tuesday if the Monday is a public holiday or pupil free day, but once the father had obtained suitable housing that it should be five nights each fortnight commencing after school Friday until commencement of school on Wednesday.
In other words, the Independent Children’s Lawyer suggested that there should be a more significant time spent in the household of the father than that which was proposed by the mother but less than what was proposed by the father. The Independent Children’s Lawyer also went on to detail arrangements as proposed in respect of the various gazetted school holiday periods and, in particular, arrangements with regard to the Easter school holidays as well as special days that might need to be considered in relation to arrangements.
As is perhaps obvious from those opening proposals by the parties and the Independent Children’s Lawyer, this matter is not so much one that relies upon issues of the capacity of one parent or the other to meet the needs of the children but rather is one in which there are difficulties being experienced by the parties, in relation to what they might or might not be able to provide for the children, at least insofar as the other is prepared to recognise, as well as a real concern held, understandably, by the Independent Children’s lawyer, in relation to what might be in the best interests of these children.
Quite simply, it is an extremely difficult case and one that became more difficult, in fact, in my assessment as the evidence unfolded. I will comment a little further in relation to that particular aspect of the matter as I address issues in relation to the evidence.
As is almost invariably the case, the two most significant witnesses in relation to proceedings in respect of parenting of the children are the parents themselves. However, a number of other witnesses were called who provided, in varying degrees, assistance in relation to the determination of these proceedings.
In particular, it was noteworthy that evidence was called from the father’s father - in other words, the paternal grandfather - though he was called by the Independent Children’s Lawyer. Additionally, the father’s partner of some 20 years, Ms K, was called, but not by the father, but rather by the mother. The mother also called a friend in relation to one particular instance that had arisen in relation to she and the father’s dispute with regard to the parenting of the children and of very great assistance and significance in relation to the determination of this matter was evidence that was called from Ms Pat Woodcock, the family report writer. I shall refer in more detail to her evidence in due course.
Before turning to the report writer, however, or, of course, the evidence of the mother and the father it is important that there at least be some consideration of the evidence of the other witnesses called in relation to these proceedings. In that regard, I note that Ms K was called on behalf of the mother. Ms K is the partner of Mr R, the paternal grandfather.
I gained the distinct impression that there was a real animosity between Ms K and the father in these proceedings. It was obvious from the questions that were directed to her by the father in cross-examination and I must say, it was also obvious by the tone of the answers that were given in relation to the questions that were directed to Ms K. Ms K, in her affidavit spoke of the difficulties that she had observed in relation to the interaction between the father and the paternal grandfather and it was clear that that was one of the many factors that had led to the deterioration in the relationship between the father and Ms K.
Unfortunately, much of which Ms K had to say in relation to very many of the issues that she complained of or expressed concern about, arose from issues that she was not directly involved in and were statements more of a hearsay nature and, were of very little assistance to me in relation to the final determination. What was clear, however, was that she was unchallenged in relation to the statements she spoke of with regard to the mothers’ relationship with the children and also in relation to her observations as to the mother’s parenting.
In her affidavit filed on 21 August 2009, she says in paragraph 6 that she has been actively involved in the children’s lives, more or less since birth, and goes on in paragraph 7 to say the following:
I have on many occasions over the years cared for the children at times when Ms Railton has had to work or has had other commitments. I have been more than happy to care for the children.
She goes on in paragraph 8 to say the following:
I thoroughly enjoy spending time with the children and I have observed them to be very happy and content whilst spending time with me.
She then goes on also to comment about her observations of the children’s relationship with their paternal grandfather, Mr R, and it was clear that there was little that arose in relation to a challenge, as to that particular aspect of the matter.
Additionally, as I indicated, Ms K also spoke of her observations of the mother’s parenting. She said that she had never witnessed the mother being abusive to the children, nor had she ever witnessed the mother saying derogatory things to the children about their father. It is clear that the support which would be so necessary for the mother, being a single mother for many years as she was, was made available to her by Ms K and also by Mr Railton senior, and as I say, they were virtually unchallenged witnesses in relation to such matters as their observations or relationship with the children. I accept Ms K’s evidence in relation to her observations and also with regard to her relationship with the children.
I am less inclined, however, to draw any real conclusions in relation to matters involving her interaction with the father and, of course, therefore, her observations of the father’s care in relation to the children. I gained, unfortunately, the distinct impression, as I have said, that there was a real animosity between Ms K and the father which led to difficulties in relation to any great reliance being placed upon evidence with regard to the father’s interaction with the children.
It is a most unfortunate situation, however, as Ms K has an obviously significant role in relation to the children’s lives, being relied upon on many occasions by the mother to assist in respect of the care of the children and yet, the rather difficult circumstances that exist between the father, his father, and his father’s partner, Ms K, means that the children are, on many occasions, caught between the wishes or hopes of the father and the relationship that they have with extended family.
It is, unfortunately, a recurring theme in relation to these proceedings, as a result of the circumstances that the children find themselves in with the positions taken by both the mother and the father.
I also had the opportunity to observe Mr R, the paternal grandfather. Mr Railton’s affidavit was filed on 26 August 2009. He speaks in his affidavit about his contact with the children and his involvement with the children. Again, the distinct impression that I got was that there was a genuine affection that the paternal grandfather had for the children, and a wish to continue involvement in the children’s lives. There was nothing in the evidence that was given by Mr Railton senior in either written or oral form which would give rise to any concerns in respect of Mr Railton’s capacity to be involved in the children’s lives as a caring and doting grandfather.
The real tragedy, as I say, in relation to this matter, arose from the fact that the relationship between the father and the paternal grandfather had deteriorated to such an extent that there were very strained relations between the two of them. The paternal grandfather, in his affidavit, says at paragraph 23, the following:
I am extremely disappointed that Mr Railton has not provided for his children financially. I would describe Mr Railton’s interaction with the three children as strained. I observe the children to be uneasy when they are with Mr Railton. There is no doubt they like their dad because he is their father. I detect that when the children are with Mr Railton his voice raises one or two octaves and he is uneasier with the children in his care. When I usually come to the unit the children race up and put their arms around me. I have observed when the children are with him, the children are essentially in Mr Railton’s one small bedroom, not the main bedroom of the unit, and they play on an Xbox. Apart from that they go down to the Esplanade to skate, as Mr Railton does not have a motor vehicle.
He then goes on, in paragraph 24, to say the following:
I believe that Mr Railton has never become emotionally or physically involved with the children. I believe the children spend time with Mr Railton more out of obligation then [sic] love.
It is clear that the relationship between the father and his father is strained to an extent where the observations that each make in relation to the other is somewhat coloured or tainted by their feelings toward each other. This was evident in the cross-examination that was directed by the father to the paternal grandfather. It centred on issues with regard to the paternal grandfather’s medical health and in particular his mental health, but I note that in that regard there was a suggestion that the paternal grandfather was suffering from mental health issues which were longstanding.
In answers to questions, however, Mr Railton senior indicated that he had had a breakdown in about 1978 and that subsequently there had not been any circumstances up until recent times, when an application was made by the father to have his father examined pursuant to a justice examination order. Apparently that had occurred and no further steps had been taken.
The father, unfortunately, would not accept that was the case, and if anything, his cross-examination in relation to his father, the paternal grandfather, reflected far more on the pedantic and determined nature of the father rather than in any way giving rise to concerns with regard to the capacity, in any respect, of the paternal grandfather to be involved with the children. In fact, I must say that I was enormously impressed with the paternal grandfather.
Again, the distinct impression that was given was that he clearly understood the boundaries that properly should be drawn between the roles of parents and of grandparents. His interest in the children were limited to what might be called the “fun activities” that could be arranged between a grandparent and the children, and his observations of what the continued difficulties between the parents were doing to the children were telling. He referred to the children being in what he called a “terrible mess”.
He went on at another stage of his cross-examination, to say that he was concerned for the children, that they could not keep on going in the way that they were, and his observations that all, and no doubt that included both parents, were upset in relation to the issues, was, I thought, both perceptive and correct.
The fact is that these children have been harmed as a direct result of the dispute between the parents and the determination of both of the parents not to recognise, I think in any real way, the appropriateness and the importance of the other parent’s involvement in the children’s lives.
It was telling evidence, and it was evidence which I thought reflected strongly in favour of the grandfather and of his significant role in relation to the children and also reflected, at least in this instance, very poorly upon the father and his determination to in some way seek to reduce or even exclude the paternal grandfather’s involvement in the children’s lives.
Also called on behalf of the mother was a friend, Ms B. Ms B filed an affidavit on 25 March 2009 which related specifically to an incident as between the parents, and, of course, the children, on 29 November 2008. Again, the distinct impression was that Ms B was attempting, as best she could, to be fair and balanced in the evidence that she gave in relation to this matter, though of course she did stress that she was a good friend of the mother and had known her for about 20 years, and certainly had known her prior to the commencement of any relationship with the father.
Ms B, I thought, was a most honest witness. For example, and in particular, when the father cross-examined her about the incident on

29 November 2008 and her involvement, she was, I thought, very clear in relation to the father’s state insofar as whether it was agitated or not. The father asked her, for example, whether he was aggressive when he attended at the house at the time of collection of the children. She indicated that he was not aggressive, but he was not happy. I thought that was perhaps a very astute observation, in that I gained the distinct impression that the father would have been under control and would not have been, for example, abusive or in any way threatening toward Ms B, but at the same time, I did gain the distinct impression that the father’s frustrations, if it can be described that way, in relation to many of his dealings with the mother, would obviously influence his appearance, his mood, and certainly his state of happiness.
I also was impressed with the evidence that was given by Ms B in relation to her observations of all of the children at the time on

29 November 2008, when the father took the two boys into his care and held them over for a week or so. It was clear that the father wanted to emphasise that the boys were not, for example, distressed, crying or hysterical as a result of going with him.
Ms B was again, I thought, quite particularly honest in relation to her observations, in that she did not suggest that that was the case but she quite astutely observed, she said, that both of the boys were very quiet, and that would be understandable in light of the obvious observation that their father was, not happy. She also indicated that it was clear that [Z] was not upset directly or overtly as a result of the father taking the boys, but again, Ms B indicated that she was quiet, and, if anything, her mood was one of upset, in that she had been left behind by the father.
I was impressed by Ms B. Whilst her evidence was not overly influential in relation to this matter, I gained the distinct impression that Ms B was a witness of honesty and one who had tried very hard to maintain a neutrality in relation to her dealings with the parents so as to ensure the children’s best interests were, as best she could do so, met.
I turn now, to the evidence of Patricia Ann Woodcock, psychologist. Ms Woodcock has prepared a report in relation to this matter. The report is dated 1 September 2009, and was filed as an attachment to her affidavit of 14 September 2009, which affidavit was prepared by the independent children’s lawyer. Ms Woodcock’s report was of enormous assistance in relation to this matter.
In perhaps reverse order, I note that her recommendations in relation to this matter were, I think, enormously well-considered. She said at paragraphs 141 and 142, the following:
Due to the ongoing conflict between the parents, parallel parenting with both parents involved, but arrangements designed to minimise contact and conflict between the parents is recommended.
142: The children reside week about time with each of the parents, once appropriate housing is supplied by the father, ie, separate bedroom for each child.
Ms Woodcock then goes on in her recommendation to comment upon the changeover routine and suggests that it should occur after school or day care on Fridays and that the children move between the homes as a group.
The significance of that is obvious, in that she, on a number of occasions in her oral evidence, referred to the three children as closely sibling bonded and also being described by her as a unit, “that should not be broken up”. It was clear that there were real concerns that

Ms Woodcock held, in relation to the possibility of the children being dealt with differently in relation to time to be spent with one parent or the other.
Ms Woodcock also went on in her well-considered recommendations to make comments in relation to responsibility for transportation, to and from school and from activities of the children, as well as to then go on specifically to make recommendations with regard to counselling for the children, as well as possible more specialised involvement in relation to [Z] and [Y] with regard to learning disorder assessments and central auditory processing disorders in relation to [Y].
Ms Woodcock also recommended that the parents avail themselves of mediation, utilising experienced mediators, as well as participating in programs, both in relation to parenting as well as focus on kids programs.
It should be noted, as it was significant in relation to this matter, that Ms Woodcock made reference to the possibility of what is referred to as “parallel parenting”. In that regard, significant evidence was taken as to exactly what parallel parenting might be. She referred specifically to an article under the hand of Jaffe and others, and a copy of the commentary from the Family Court Review was provided to the court. Under the heading, Parallel Parenting, the following comments were made:
In contrast to the co-operative nature of a co-parenting arrangement, parallel parenting is an arrangement where each parent is involved in the children’s lives, but the relationship is structured to minimise contact between the parents and protect the children from exposure to ongoing parental conflict, particularly by having each parent make day-to-day decisions independently of each other when the children are in his or her care, and responsibility for major decisions (eg, education) is assigned to one parent. There is limited flexibility in a parallel parenting arrangement, and the parents typically abide by a very structured and detailed schedule. Parallel parenting developed in recognition of high conflict separations in which both parents appear sufficiently competent. Rather than encourage co-parenting, the goal of this plan is to disengage the parents from each other and their longstanding hostilities.
Parallel parenting will typically involve a child spending more time in the care of one parent, who will be the primary residential parent, though there can be roughly equal time in the care of each parent. The hope is that, over time, parental hostility may decline and parallel parenting may evolve towards some form of co-parenting, but this may take years and in some cases will never occur. Therapy for the parents to deal with their feelings of anger and hostility towards each other may help parallel parenting to evolve toward co-parenting, but this is not always a realistic possibility. The legal framework for parallel parenting may be joint or sole legal and physical custody, depending on the philosophy of the court or parties establishing the arrangement and the resources available to counsel and monitor the family. The time share arrangements, however, should not be one that divides the child’s world into two spheres that do not relate to one another or unduly disrupts the child’s continuity in schooling, social and extracurricular activities. The criteria for appropriate use of parallel parenting in fact is the contra-indicate its use, are outlined in Table 2, section B.

It should be noted, that in the table that is referred to, it refers to divided decision-making responsibilities and different issues being allotted to each parent. That was at least one possibility that was suggested in relation to this particular matter.
I should indicate however that, having considered the possibility, I do not think this is a matter in which it would be appropriate to order parallel parenting. What is clear though, is that the degree of hostility and difficulties that have been experienced by the parties in dealing with each other over a very significant period of time, have meant that there have been ongoing concerns expressed by both parents, about their ability to work with each other.
More tragically still, there have been concerns obviously indicated in relation to each of the parents’ interaction with the children. These children have been hurt as a result of the continued hostilities and difficulties with the parents, and of course, Ms Woodcock commented at length in relation to those particular issues.
I was assisted enormously by the report prepared by Ms Woodcock in relation to this matter. She commented at length upon very many of the issues that were salient in respect of this matter. In particular, in commenting in her report about the father’s parenting techniques, she observed that they were good. She said at paragraph 45 in subparagraphs (a) through (g) a number of things which reflected upon the father’s ability to deal with the children and with the parenting of the children. She said:
The Father’s parenting techniques were observed to be good:
(a)Mr Railton and the Children were observed at his residence and at the pool/recreation area of the apartment complex
(b)Mr Railton played with each of the Children at their level of ability and interest. Mr Railton moved easily among the three Children who were all interacting with a video or computer screen in their interest area
(c)Mr Railton was able to play at the Children’s level and was knowledgeable about the Children’s interest in various video/computer game characters.
(d)Mr Railton appropriately cared for [Y]’s infected ear when [Y] complained of his ear hurting.
(e)Mr Railton easily organised the Children to move from the apartment to the recreational/pool area. Mr Railton readily guided the Children through a game of soccer and negotiated well with [X] who was upset at being outplayed by his younger sister.
(f)Although Mr Railton did not ‘power over’ or ‘bully’ the Children, the Children did wait for instructions from their Father, indicating that they are used to waiting without making a fuss for their Father to give the instructions about what to do next. Nevertheless, all the Children argued with Mr Railton when they were told it was time to leave for school. [X] especially attempted to logically convince his father that he should have the day off school. [X] initially used humour with his logic, then turned to disrespectful whining in an attempt to dissuade his Father from sending the Children to school. Nevertheless, he ultimately complied with his Father.
(g)Mr Railton knows how to play and assist the Children to enjoy themselves. All parties were heard to be laughing and easily chatting throughout the observation time. At no time were the Children out of control, although they were often impolite and spoke disrespectfully to their Father.
In paragraph 50 of her report, relating to her observation of the father, she said the following:
In summary, Mr Railton presented with a relaxed demeanour, with limited co-operation of the Report writing process, although co-operating fully with the process once he had secured employment. Mr Railton seemed to answer the questions put to him with honesty; however, Mr Railton’s reflections about the Mother of his children were less than charitable. Mr Railton both denigrated and maligned Ms Railton and positioned the couple’s communication difficulties firmly on Ms Railton’s lap.
She then goes on, however, to say:
Mr Railton’s interactions with the Children were relaxed and seemingly happy, with the Children frequently laughing while playing with their Father. However, the Children were also impolite and disrespectful toward their Father.
Ms Woodcock also made similar comments or observations in relation to the mother’s interaction with the children. In paragraph 65 she detailed what she headed the relationship with the children, and said the following:
Ms Railton’s observed parenting abilities were good and lent strongly towards a friendship model of parenting rather than a typical authoritative parent-child relationship. That Ms Railton had an atypical parenting experience due to her mother’s schizophrenia may have unknowingly influenced how she parents her own Children.
Ms Woodcock then went on in paragraph 65 through subparagraphs (a) through (h) to comment about her observations of the mother’s interactions with the children. She says, finally, however, that there were some issues of concern. In paragraph 66, she spoke of the concern that she had with regard to the children’s education and that the mother, as she put it:
…believes that all children are progressing well and justifies her statement by supplying achievement awards which the children had recently received.
Ms Woodcock, however, goes on to say the following
Achievement awards are for encouragement and indicate that the children had been extended effort and were congratulated on their “confidence” and “persistence”, not on their academic progress. Ms Railton seems to misunderstand the nature of academic progress, that is, that the children meet benchmarks on examination, of primarily literacy and numeracy skills.
In that regard, I note that in cross-examination, for example, it was obvious that there were concerns that were expressed by Ms Woodcock in relation to the issues of the children’s education. Ms Woodcock spoke in a very concerned way about the issue of education. In particular, she commented that one of the real concerns was that when the child [Z] was observed to be having difficulties in relation to numeracy and literacy and additional assistance was provided, it was [Z], and no other child within the group, who was not able to succeed in achieving the levels that were expected for the age and competency of the child.
The real concern, of course, that arises in that regard is that the mother, it would appear, had failed to fully understand the nature of that difficulty and to address that issue, though, of course, the difficulties that were being experienced by both she and the father in dealing with each other, may to a significant degree affect those developmental stages that needed to be met, in relation to the children and, in particular, [Z].
I was particularly assisted by Ms Woodcock’s observations in relation to each of the children. She spoke of what the children’s aspirations or hopes might be, and spoke also, when relevant, of what she said were different observable behaviours by the children, with each of the parents. At paragraph 73 of her report, she says, in relation to the child [Z], the following:
[Z] presented slightly differently when observed with each parent. With Ms Railton, [Z] seemed to be constantly attempting to please her mother. She spoke in a pseudo-adult manner. In interview, [Z]’s wish was to be ‘18 years old, with Mum, playing on a playground.’ With Mr Railton, [Z] presented more like a typical young girl, that is, engaged with him on her terms (cheerfully and enthusiastically playing soccer) yet was obedient to most of his requests, getting ready to leave the school being the exception.
Ms Woodcock went on to comment about that particular aspect of the matter in relation to [Z] and said in paragraph 74 the following:
[Z] seems extremely aligned with her mother, stating that there was “nothing” she disliked about living with her mother and ‘nothing’ she liked at her father’s except the Xbox. [Z]’s dislikes, that she has to walk when with her father, that her father has not got a house and only has an Xbox, and that she sleeps on the floor at her father’s home due to her nightly bedwetting. [Z]’s mother puts her in night knickers.
It seems clear that the child was at least to some extent parroting the concerns that had been raised by the mother. This was emphasised by Ms Woodcock when, at paragraph 76, she says the following:
[Z]’s interactions with her father belied her statements to me in regard to her not wanting to ‘go at all to Dad’s.’ During this family consultant’s observation, [Z] smiled, met her father’s gaze, sought out her father’s touch, and often touched him, gleefully joined his side of the soccer game.
She goes on:
[Z]’s statements about not wanting to go to her father’s home were spoken when the mother was waiting in the next room, with the boys. Therefore, [Z]’s statement may have been examples of her loyalty towards her mother.
It was clear that this was an issue that arose in relation to this matter, and it was a matter which, I must say, troubled me in relation to the determination of these proceedings. I gained the distinct impression that whether the mother knew it or not, there was now developing, as Ms Woodcock described it, a pseudo-adult or dependency type relationship where [Z] found herself in a situation where she would have to support her mother, either in word or act and certainly when her mother was about, such that the child herself could experience difficulties as a result of the pressures unknowingly, one would think, brought to bear upon her.
It was certainly a situation where I was troubled by many of the concerns that also, quite clearly, troubled Ms Woodcock.
In summary, Ms Woodcock, commenting in relation to [Z], said at paragraph 83 of her report the following:
[Z] is a nearly nine-year-old girl who has tremendous physical skills and who struggles with academic work. [Z] demonstrates some anxiety and is strongly aligned with her mother, repeating her mother’s negative statements about her father. In observation, [Z] presented differently with each parent: more like a young girl with the father, and more like a pseudo-adolescent with her mother. However, relationships with both parents appear to be positive, warm and loving.
Similarly, Ms Woodcock commented about observations in relation to the boys. In relation to [Y], it was noteworthy that there were concerns expressed by Ms Woodcock about certain statements made by [Y]. At paragraph 89 of her report, she says:
Like his sister, [Y] seems to have a negative view about his father, which [Y] ties to what his mother has told him. [Y] indicated that his mother had told him that his parents split up because ‘Dad wouldn’t give money to Mum, and Dad was seeing another girl.’
It is clear that there were issues that had arisen in relation to [Y]’s statements with regard to his father which, brought about either overtly or covertly, were a reflection of what concerns were being expressed by the mother. It was also noteworthy that the interaction that

Ms Woodcock observed in relation to [Y] and the father was not as black and white as would be indicated by the various statements that were made by [Y].
I noted, I must say, with some concern, as did Ms Woodcock, that in paragraph 95 of her report she says the following:
[Y] worries about his parents, particularly about his mother being left alone now that his stepfather had left. It seems that [Y] is quite overwhelmed by his parents arguing. [Y] does see his mother as needy, and that he has to help her. This parentification, ie, [Y] parenting his mother and not expecting his mother to look after him, will cause great distress for [Y]. [Y] is not overly demonstrative in expressing his feelings and may internalise his distress, thus believing it is his responsibility to make his family better, and when he cannot, [Y] may succumb to illness. [Y] frequently has ear infections. It is clear that [Y], like his sister, has taken on something of an adult role in relation to the parenting of the mother, and that this would be having, in the longer term, an affect upon the child.
In relation to [X], the oldest of the three children, it was interesting that Ms Woodcock observed at paragraph 104, the following:
[X] seems to have an equal affiliation with both of his parents. [X] could easily name his likes and dislikes at both his parents’ homes.
[X], however, was still affected by the difficulties that were being experienced in relation to this matter. It was clear that [X] had made statements to the school counsellors about things allegedly done by his father, but it was also noteworthy that many of those remarks that were noted in the school counsellor’s reports, and which were of concern to Ms Woodcock, were of a nature of being repeats of what [X] had heard from his mother about his father. It was also distressing for

Ms Woodcock - and I must say no doubt troubling for all in these proceedings - that [X] had indicated to his school counsellor that he was extremely stressed about the court case, and that it appeared to be going on forever.
It was noteworthy, however, that, in addition to observing an equal affiliation with both of his parents, in the observed interactions between [X] and his parents, it was clear that Ms Woodcock had seen a good relationship with both parents. It is tragic that [X] appeared to be stressed by the ongoing dispute between his parents, and that there was an obvious effect being had upon the child and his relationship with each of his parents.
Under the heading, Evaluation, Ms Woodcock made a number of comments which were in many ways positive, and in many ways negative, in respect of each of the parents. She spoke at paragraph 118 of the past aggressive behaviour in front of the children that has been significant for both of the parents. She spoke of the inappropriate communications by both of the parents, and in particular spoke of what appears to be evidence of the mother having informed the children about those communications, and, therefore, the children forming the view, from statements made by the mother, that the father lies, that the father does not give money to the mother, and that the father has caused difficulties for the mother.
Ms Woodcock noted therefore, that there were real concerns that were expressed in relation to the behaviours of both of the parents, and of the actions of the children as a result of those behaviours.
Ms Woodcock also, understandably, expressed real concerns about issues in relation to education. It was clear that the mother had, to a significant degree, failed to fully appreciate or to appreciate at all, the significance, until very recent times, of the children’s non-attendance at school. Their absenteeism was very significant, and Ms Woodcock specifically had referred to findings which were to the effect that children would not normally miss more than five to 10 per cent of a school year, whilst in relation to these children, at least until about 2008, there had been far more significant absenteeism and, unfortunately, in relation to [Z], that absenteeism and difficulty seemed to continue.
I was most assisted by the evidence of Ms Woodcock in relation to this matter. I gained the distinct impression that whilst there were concerns expressed by her in relation to this matter, there was also a glimmer of hope. It was clear that the children would benefit from the parents moving forward, and whilst there was little indication that that had occurred, certainly up to the time of interview and preparation of the report, there was an understanding on the part of Ms Woodcock that both parents were intelligent people and could do so.
Both parents recognised the importance of moving forward in relation to their interaction with each other, and that if that could occur, then, as Ms Woodcock had suggested, parallel parenting might, as envisaged in the report, move towards co-parenting over time. The report prepared by Ms Woodcock and the statements made by her in relation to the observations of each of the children, each of the parents, and of the children’s interaction with each of the parents, was of particular assistance in relation to this matter.
I turn now, obviously, to the evidence of each of the parties. I must say that it was one of those most difficult matters, where there were issues that gave rise to very real concerns in respect of both parents, as well as matters that gave rise to very real respect, in relation to the determination of both the mother and the father to provide the very best that they could for the children.
The overriding impression that I gained in relation to this particular matter was, that both of the parents love each of the children with all of their hearts. I also gained the impression, that both of the parents were determined to, in every way possible, provide for the children to the very best of their ability.
In that respect, I note that Ms Woodcock, in fact, made a comment to the effect that both of the parents were very different persons, that both of the parents were able to provide good guidance and direction to the children, and that they both brought qualities in relation to parenting, which would no doubt be beneficial to the children. I accept that assessment in relation to the matter.
The real difficulty here is the unfortunate lack of appreciation by both parents of the real effects of their behaviours upon the children and the real effect of the lack of true appreciation or respect that each has for the other, in relation to the parenting of the children.
The father was for many years an absentee parent. He cannot get around that particular aspect of the matter, and I thought that the comment that was made by Ms Woodcock when asked about some of those aspects of the matter was very telling in relation to the father. Ms Woodcock was advised that the father had made a comment that perhaps 80 per cent of the mother’s parenting, even now, was bad in relation to the children. She was asked what conclusions she might draw or weight she would give, in relation to such a statement, and she said that a statement like that was what she would consider to be a, “defensive statement.”
It was a statement she thought, made on the father’s part because he had been absent and was made to deal with his guilt feelings and to cover up the absences that had been occurring in the past. I thought that this was a most astute observation and consideration in respect of the father.
It is true that these parties separated even before the birth of the youngest child, [Z]. There is some dispute as to whether there might have been some attempt at reconciliation, or at least some cohabitation subsequent to [Z]’s birth, but to all intents and purposes, from about the latter part of 2000 - in other words, for a period of about seven years - the father was not a significant factor in these children’s lives.
The father, to his credit, has taken steps to change that. Since about April of 2008 he has lived in the same locality and, again to his credit, has sought continuously to extend his involvement in the children’s lives. It is clear that the father wishes to have that involvement, and it is also clear that the children enjoy their involvement with the father.
The real difficulty here is that there is, in my assessment, also a degree of compensation being taken by the father knowing, or perhaps even unknowingly, which relates to his significant absence in the early part of the children’s lives. For that reason, the father wishes now to be very acutely involved in the lives of the children, and to see himself acutely involved means that there has to be, at least one would think, unfortunately, a degree of criticism on his part, in relation to the mother.
The real concerns here are to deal with those issues in relation to the exchange with each of the parents, and how they can work together, if possible, in relation to the children. The father certainly gave me the impression that he was attempting, as best he could and as best his personality and character would allow, to work towards a more equal relationship with the mother, in relation to the parenting of the children, and in relation to decisions to be made. There was still a long way to go.

It was clear, that even in more recent times there have been disputes or lack of proper communication between the mother and the father, in relation to decisions to be made particularly, for example, in relation to [X]’s education. But there were at least some indications that times had changed and that the perspective of the father had moved on. In that regard, as I commented at the very beginning of these reasons, it was clear that the father had given some further thought to issues in relation to the parenting of the children, and that he was mindful of the need for there to be progress. As he said in his final submissions in relation to this matter, he would like sole parental responsibility with regard to education, but he now considered that it was not in the best interests of the children because it would hinder the parent’s working together.
He indicated that it was, perhaps, a double edged sword, in that, if he had sole parental responsibility, then there was more likely to be continued disputation between he and the mother, than might be the positives he saw as arising from only him having the power to make decisions in relation to education. He also, in his address to me, I think, took a most conciliatory approach in relation to the issues in dispute between he and the mother. He said, in his final statement to the court, that he did not want to go through all the negatives, because it would not help either he or the mother in working together in the future.
I gained the distinct impression that that was said with a genuine concern held by the father to ensure that there could be progress, and that he and the mother could move forward and work together. In that regard also I was enormously impressed with the additional evidence that was called at the time of address.
It would not normally be the case that additional evidence was called, but it was clear, and particularly it was supported by the independent children’s lawyer, that there should be some further evidence relating to what arrangements, if any, were made with regard to the school holiday period, which had concluded just a week or so prior to the final address.
It was sought on the part of the mother that there should be evidence given in relation to that particular aspect of the matter. I will comment a little further in relation to that evidence, but I thought that the father’s approach in relation to cross-examination, and in relation to the evidence that was given generally in relation to the matter, did him great credit and unfortunately, reinforced concerns that I already had in relation to the mother.
It was clear that the mother sought, through the evidence that was called, to indicate that she had been intimidated or pushed into agreeing to providing assistance to the father with regard to the care of the children during the first week of the holidays, when the children were to be in his care. However, it was also clear that the father had attempted to negotiate with the mother, and it was also clear that the father had been conciliatory in relation to other arrangements that were made during the school holiday period.
The mother, in my assessment, did herself absolutely no credit whatsoever in attempting to suggest that the father had been intimidating or difficult in discussing arrangements with regard to the first week of the school holidays and to the provision of care arrangements during that first week. Because, when she was asked questions about the second week of the school holidays, and the assistance that was sought by her in relation to the care of the children during some nights that she was working, she was, in the extreme, evasive and I think directly untruthful in relation to the evidence that she gave.
A far better impression that I gained in relation to this matter was that the father was trying terribly hard to work with the mother in relation to a conciliatory or flexible approach to arrangements with regard to the children. The mother’s answers were evasive and I think, directly untruthful in relation to whether there might or not have been arrangements made with regard to school holidays and to the evenings in the second week when the children were in her care. It was again, a reflection of what Ms Woodcock, in her report, noted was a passive-aggressive stance taken on the part of the mother, and a genuine attempt by the mother to manipulate the situation.
I was not at all impressed by the mother’s stance in relation to this part of the evidence, and, if anything, I gained the distinct impression that the mother was exactly what Ms Woodcock suggested she may have been in prior dealings, passive-aggressive and, in fact, manipulative.
It was a wonderful opportunity for her to use the request by the father, which was not in any way intimidating or harassing, as a sword in relation to the proceedings, but in fact it was what could only be described as a double edged sword, because her evasive and, untruthful answers in relation to the arrangements made with regard to the care, on the evenings of the second week, when the children were to be in her care during the school holiday period, did nothing but undermine the position that she wished to take in relation to this matter. If anything it gave rise to further support for the need for the father’s involvement in these children’s lives, and for the recognition of the fact that, whatever might have been the past circumstances, these children could only benefit from further involvement of the father.
The father clearly has a determined view in relation to matters. The father clearly has a personality in which there is a very strong impression given that only his position taken and only his stance is the right one. The father certainly has a somewhat dominating and overbearing technique when it comes to correspondence, be it by SMS, text or by email. But what is also clear, is that there is underlying all of those difficulties, and they are matters which must be addressed by the father, a genuine concern for the welfare and the wellbeing and the best interests of the children, and a real desire to be involved.
The father’s behaviour on many instances would no doubt have been difficult for the mother to deal with., but I must say that I gained the distinct impression that the father was very precise in much of the evidence that he gave and that there was a real determination on his part to move forward in relation to the best interests and the welfare of the children, so as to be able to ensure that he and the mother could both have involvement in their lives, and to ensure that there could be progress.
Whilst the father has a long way to go and it is clear that there needs to be a parenting program participated in urgently by the father, as well as a focus on kids program, there is what might be called “light at the end of the tunnel”, and a desire on the part of the father to be fully and properly involved in these children’s lives. The father was pedantic and overbearing, but the father was also, without any doubt, genuinely concerned about his children.
It was, in my assessment, a learning experience for the father to be before the court for three days, and I thought that his final submissions and address in relation to this matter, with regard to the concerns that he expressed about being before the court were of a genuine nature. He said that neither he nor he expected the mother, wanted to continue on the path that they were on, and that it was genuine hope on his part that there could be progress. There was, I thought, an inkling of recognition by the Father of the difficulties that had arisen in this matter being, at least in some part, as a result of the father’s behaviours.
The mother’s personality is very different to the father’s, and perhaps it was necessary for the father to have the time in court to experience the very raw emotions that were expressed by the mother. I, as I say, gained the impression that the father had learned and grown from the experience, and that there was a real prospect of better communication and greater respect held by the father of the mother as a result of the proceedings, and as a desire became clear to be involved as greatly as possible in the lives of his children.
Insofar as the mother was concerned, I was unfortunately troubled by much of the evidence and by many of the comments that were made in relation to this matter. I gained the distinct impression that the mother was, as commented upon by Ms Woodcock, to a significant degree, passive-aggressive, and I think, in a number of instances, extremely manipulative.
I have referred previously to the evidence of Ms B in relation to the incident which occurred on 29 November 2008, and in that regard, I do gain the distinct impression that the mother’s communication, or lack of communication, was the direct catalyst for the difficulties that arose in relation to the matter.
It may be that the mother was overborne by the father in relation to the proceedings, but in that particular instance, I gained the distinct impression that the mother’s refusal to properly communicate, and I do assess that that was the case in this particular instance, was the main, if not sole, reason for the significant difficulties that flowed on from 29 November 2008.
Just as clearly, and I have already spoken about it, I gained the distinct impression that the mother’s evidence, given in relation to the September/October end of Term 3 school holiday period in 2009, was nothing, if not a clear example of the mother’s desire to manipulate the situation. I found her evidence wholly unconvincing in relation to what might or might not have been the circumstances of the first week. Of the holidays I in fact forward the view, that there were proper discussions between the mother and the father, and that the mother was perfectly capable, if she had wished to do so, of simply suggesting that the father make alternative arrangements, in relation to the care of the children. She cooperated, but not because she was intimidated but because it was a child-appropriate course to follow. The real tragedy was that subsequently she sought, in my assessment, to use that amicable and cooperative arrangement to her own advantage.
Of far greater concern, however, was what I would consider to be her obviously untruthful evidence in relation to the second week. I am quite satisfied that whilst the mother remembered clearly what might or might not have happened during the two weeks of the school holidays, her evasive, if not untruthful answers in relation to the second week were quite clearly an indication of an attempt to manipulate the situation.
I was far more impressed with the father in relation to the attempts to move forward, therefore, since the day of trial, than I was by the mother, and if nothing else, it reinforced in me the concerns that I had about the mother’s real determination, in relation to this matter.
The mother should be showered with praise for the role that she has taken in relation to the care of these children since separation some nine years or so ago. What is tragic, however, is that whilst the mother has been determined in so many respects, to work appropriately to ensure that the children’s best interests were met, the one thing that there appears to have been in more recent times is a total rejection of any notion that there can be benefit to the children in spending additional time with their father, benefit to the children in their father being significantly involved in their lives, and benefits to her in having some relief and some support.
I gained the distinct impression that the mother’s position in relation to this matter was unfortunately much more focused on her desire to continue to control the situation than any real desire to protect the children.
In that regard, for example, there appears to have been a total rejection by the mother of the preponderance of evidence given by

Ms Woodcock in relation to the children’s interaction with their father. The evidence of the mother, and it was supported, unfortunately, by both Ms K and Mr R Senior, was that the children’s interaction they observed as being with the father of a more restrained nature. There seems to have been little, if any, appreciation of the fact that the children were acting out what the mother might, unfortunately, perhaps even unconsciously, have wanted to see in relation to this matter.
The observations of Ms Woodcock in relation to both [Y] and [Z] taking on pseudo-adult roles in relation to the mother are tragic considerations, and again, are still matters that the mother does not seem to fully appreciate or accept.
I was troubled by much of the evidence that was given by the mother in that regard, and as I say, whilst I was enormously impressed by the role that she had taken in relation to the children over a very significant period of time, there seemed also to be a real determination on the part of the mother to refuse to accept that which was clear in relation to the children’s views and their wishes. As well the mother failed to recognize or even accept the benefits in relation to interaction with the father, as well as a real lack of appreciation of the harm, and there was harm being done to all of the children, as a result of the continued difficulties between the parent’s, to which the mother was just as responsible in more recent times, as was the father.
Both of these parents have a great deal that they can offer to the children. Both of these parents should have the opportunity to involve themselves in the children’s lives and to ensure that the many benefits that they can bring from that close involvement with the children is fostered and developed.
I was troubled by much of the evidence by both of the parents. I was troubled by the lack of respect that each, unfortunately, seemed to show to the other. I was more troubled, I must say, however, in the latter part of the trial and on the final day of addresses, to see that what appears to have been progress made by the father is not reflected in any progress made by the mother or any acceptance that there is a significant role for the father to play in the lives of these children. It gave rise to real concern for me in relation to the final determination of this matter..
I turn now to matters of the law and to the application that must be put of the evidence to the law. The starting point, as it always must be, are the provisions of section 60CA of the Act. That of course provides that the paramount consideration is the welfare of the children. That is an obvious consideration that must be looked at in relation to any determination, but there is certain guidance and assistance provided to the court in relation to that determination by the provisions of the Act itself.
The court must of course consider those provisions set out in section 61DA of the Act relating to parental responsibility. There is a presumption at law that it is in the best interests of the children for there to be equal shared parental responsibility. The provisions of section 61DA provide as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
It is clear therefore, that that presumption can be rebutted in circumstances of domestic violence which affects the parties' capacity to interact with each other or in other circumstances where the court is satisfied that it would not be in the best interests of the child or children for the child's parents to have, equal shared parental responsibility.
In this instance, the father contends now that equal shared parental responsibility is in the best interests of the children. His position is one which is supported by the independent children's lawyer though, as I noted earlier in these reasons, it was clear that that position was one which was to develop from the father, but also one would think appropriately the mother, conducting themselves in a more proper manner in relation to their dealings with each other and, at least insofar as the father is concerned, following him undertaking and participating in parenting programs and a ‘Focus on Kids’ program.
The mother's position, as indicated previously, is to oppose such an arrangement and to suggest that she should have sole parental responsibility as a result of the difficulties she has, particularly in relation to dealing with the father.
In light of the concerns that I have expressed in relation to this matter, particularly with regard to the mother's somewhat manipulative character, I am far more inclined to think that it should not be a situation where one parent or the other should have the sole role in relation to determination of matters, with regard to the long term care, welfare and development of the children.
It may be trite to say, but it is clear that these parents would benefit from working together, but more particularly these children would benefit from their parents putting the children's best interests and welfare to the forefront.
It is not an easy road ahead for the parents. It is never easy for any parents to make joint decisions in relation to the children, but the one obvious factor that arises from such matters is that it will be, in the long term, in the best interests of the children for the parents to work together and in this matter if both parents can recognise their own shortcomings in certain dealings with the other, then there can only be benefits to the children.
I am satisfied that if both parents were to properly participate in parenting programs, and both parents also to involve themselves in the various focus on children programs that are available, then there can only be benefits to the children in moving forward on that basis. I am satisfied that whilst equal shared parental responsibility will give rise to some difficulties on the part of the parties, it will also no doubt have, in the longer term, far greater benefits to the children, such that orders of that nature should be made
I am required then of course to consider those matters which are set out in section 65DAA. Quite simply the court is required to consider a child spending equal time or substantial and significant time with each parent in certain circumstances. The terms of section 65DAA are as follows:
Equal time
(1)If a parenting order provides (or is to provide that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)     consider whether the child spending equal time with each of the parents would be in the best interest of the child; and
(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)If:
(a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)     the court does not make an order ( or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision sin the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a chid will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to b e involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are or particular significant to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significant to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)     how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.

In this instance there is again a divergence in the position of the mother, the father, and it would seem also the independent children's lawyer. The father seeks equal time. The father says that it is a workable arrangement, that it is appropriate for the children to spend equal time with both of their parents, and most particularly he says that it is reasonably practicable.
The independent children's lawyer says that that is not necessarily in the best interests of the children, but that there should be significant and substantial time. The breakdown is shown over a 14 day period as nine nights with the mother and five nights with the father. It is, with respect, not clearly indicated as to why that might be more appropriate than the equal time, seven nights and seven nights as proposed by the father, or less significant or substantial time as proposed by the mother which would be in the vicinity of four nights per fortnight, in other words a 10 night, four night breakdown.
It may be that it is simply a comfortable compromise, but by the same token it would seem that it does not fully, address the issues with regard to, both the children's obvious attachment to the father, the capacity of the father once proper accommodation and matters of that nature have been addressed, and the wishes of the children to spend more significant time with the father.
In my view it is a situation where equal time is not only practicable but it is appropriate.
I am mindful of course of the benefits that would flow in relation to equal time or of course more significant and substantial time than that which is proposed by the mother. It would involve both parents having a more complete involvement in the children's lives, both in relation to their academic and scholastic development as well as extra curricular and cultural development.
It would provide both parents with the opportunity to be fully involved in the children's lives, but at the same time would provide both parents with the opportunity for some respite, or assistance in relation to time being spent with the children, and the inherent responsibilities associated with spending that time with the children. In particular, the distinct impression that I did gain throughout the hearing of this matter was that the mother would benefit from such opportunities being made available to her, in relation to some respite from the ongoing and onerous duties that she has to date taken in relation to the children.
It is an unfortunate circumstance, as I have alluded to previously in these reasons, that because of the father's absence, and there were significant periods where he was not involved in the children's lives, the mother has taken on a position where it would appear that, at least from her perspective, the father cannot be trusted to remain in the children's lives if allowed fully back in.
I do not think that that is the case and I am comforted in that particular aspect of the matter by the evidence of Ms Woodcock, where it is clear that she has found that the father's perspective and position in relation to the children has radically changed and, that he has taken steps certainly to ensure that he is able to be involved in the children's lives now and into the future.
I am mindful, in particular, of the definition of reasonable practicality as set out in section 65DAA(5). The court, whether determining that there should be equal time or significant and substantial time, must look at whether it is reasonably practicable for a child to spend equal time or significant and substantial time with each of the parents. The court is required to have regard therefore, to those matters which have been the subject of judicial commentary over many years.
There needs to be consideration of where the parents live. That is not an element that gives rise to concern in this matter, both parents living in the Cairns city area, and both parents recognising that they can, through input on their parts, facilitate the children's continued attendance at the same schools and continued involvement in cultural activities and extracurricular activities in which the children have already been involved and, no doubt, in which they will become involved over time.
There needs also, of course, to be consideration of the parents' current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents. That is a factor which needs to be considered in relation to this matter.
There have been, as I have said already, significant changes in the approach of the father and, I am satisfied that there is a far greater recognition, on the part of the father, of the importance of the mother in the children's lives and of the need for there to be an acceptance of that importance. Unfortunately I am not so satisfied that that is the case with the mother.
However that both parents, particularly if they participate in the courses that have been recommended by the independent children's lawyer and to which I have already alluded, will more fully appreciate and therefore be able to implement an arrangement which will allow each parent to be fully involved in the lives of each of the children.
There needs obviously to be consideration of the future capacity, as well as the current capacity to communicate with each other and to resolve difficulties that might arise. In that regard I am of the view that the parents can communicate and that they have communicated in appropriate ways in relation to arrangements with regard to the parenting of the children, particularly in the recent past.
The father's evidence in that respect was far more convincing than was the evidence of the mother, specifically with regard to the end of term 3 school holiday period, and in my view it was an unfortunate indication of the mother's passive/aggressive resistance in relation to a recognition of the benefits of appropriate communication and of joint decision making, in relation to the children.
The parents have a capacity to communicate, that is already evidenced. They have a future capacity to improve that communication and I would assess that it is the only appropriate course to follow, in relation to this matter.
The court must also consider the impact of that arrangement on the children and in that regard, whilst there will be changes, and it will need to be considered, not only pursuant to the provisions of section 65DAA(5)(d) of the Act, but also pursuant to the provisions of section 60CC(3), the fact is that there will be changes in relation to these children's lives no matter what arrangement might be put in place.
Indeed, all agree that more time, including time during the school week, needs to be spent by the children with the father. It is simply a matter of the degree of time that is spent and in my view the children, particularly when they are aware of both parents' determination to ensure that their best interests are met, will be able to adjust to any changes in arrangements that would occur.
In the end therefore, I have come to the determination, when looking at those matters which must be considered pursuant to the provisions of section 65DAA, that it is reasonably practicable for these children to spend either equal or significant and substantial time with both of their parents and that both parents are fully able, when they properly appreciate the best interests and the welfare of the children as the paramount consideration, to make such an arrangement work.
Obviously and, finally, there must be a consideration of those matters which are set out in the objects of the Act as defined in section 60B and in the primary and additional considerations which are to be looked at pursuant to the provisions of section 60CC, but in particular those matters which are detailed in subsections (2) and (3).
Subsection (2), the primary considerations, relate to the benefit to the child of having a meaningful relationship with both of the child's parents and that appears to be recognised by the parents, the independent children's lawyer and I must say, is also acknowledged by the court as being a significant factor to be considered in relation to this determination.
The children will benefit no doubt from greater opportunities spent with both of their parents and will no doubt benefit from parents who are more able to devote specific time to the children. There are, in my assessment, no downsides to there being far more significant time spent by these children with their father and there are certainly no concerns as to there being a detraction or diminution in the relationship that the mother has with the children, because of there being more significant time spent with the father.
The balance or counterweight that must be looked at in relation to that primary considerations are those matters which are referred to in section 60CC(2)(b) and relate to the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
These are issues of concern in this matter and unfortunately a lack of appreciation by both parents of how their words and actions can be as harmful as a physical striking of one or other of the children.
However, there is a need for these children to have the opportunity for a relationship with both of their parents and for that relationship to be significantly developed and grown. In fact if it does not occur, then there is a real harm which is perpetrated upon the children of a psychological nature.
I am also mindful of the concerns that were expressed by Ms Woodcock in relation to the psychological development of the children and in particular the younger children [Y] and [Z] insofar as their pseudo-adult protective arrangements, in relation to the mother. Those matters must be dealt with because to fail to address such matters is, in my view, as harmful, if not more harmful, than any other of the observations or concerns that might be arising in relation to the dealings between the parents and what is seen by the children in those dealings.
In any event, I am not satisfied that there is any physical or psychological harm which would arise in this matter, which would in any way outweigh the extreme benefit to the children of having a meaningful relationship with both of their parents and of that being fostered and developed in every possible way.
Obviously I must also look at the additional considerations which arise pursuant to the provisions of section 60CC(3). In particular, of course, there needs to be consideration of the views expressed by the children and there must be in this matter, in particular, consideration not only of the statements apparently made on different occasions by different children, but also the explanations that are given and the observations particularly made by Ms Woodcock, in relation to certain of the statements that are made by the children.
The fact is, that the body language and the real impression given in relation to this matter is that the children enjoy their time with their father, the children benefit from their time with their father, and the children most significantly, can be children with their father. The views, particularly those expressed by [Z] and to a lesser extent [Y], which are reflective of the mothers' wishes and wants in relation to this matter are in my view not, under any circumstances, a true reflection of the wishes of the children, but rather are a reflection of what they perceive are the mother's wishes or wants, in relation to this matter.
If anything they are damaging to these children and whilst there needs to be consideration of those views, and how they might properly be addressed in relation to the development of the relationship of the children with their father, they are matters which in the exercise of my discretion in this matter carry little weight in relation to any determination, as to the best interests of these children.
As is obvious from many of the comments already made in relation to these proceedings, and in particular the assessment of Ms Woodcock, the children have a very positive relationship with both of their parents. They have also positive relationships with others significant in their lives and in that regard I particularly note the closeness of the relationship between the paternal grandfather, and his partner Ms K, with the children
But just as clearly, those relationships in all respects can continue to develop and can continue to be fostered, but that needs to occur in light of the primary consideration, which is of course relating to the children's meaningful and beneficial relationship with both of their parents.
There are real issues of concern which arise pursuant to the provisions of the consideration necessary in respect of section 60CC(3)(c). There needs to be consideration of the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent. Unfortunately, both parents have, over many years, fallen short of what would be hoped could be the case and would be the case in relation to fostering the relationship, with the other parent.
The father was absent for a very significant period of time during these children's lives. He has left the mother with the entire responsibility of rearing the children and then has come back into their lives in the last year and a half or thereabouts and has, to a very significant degree, been critical and unappreciative of the very significant steps and enormous efforts that have been undertaken by the mother.
It is essential that that be addressed by the father and is a matter which was touched upon, particularly by the independent children's lawyer, in relation to their strong recommendations with regard to the need for the father to participate in parenting programs and focus on children programs.
Just as clearly, however, and unfortunately I must say in this instance more overwhelmingly, there are concerns about the mother's real willingness and ability to facilitate and encourage the relationship with the father and the children. Whether it is knowing or unknowing, the fact is that the mother has not fully or properly appreciated the benefits to the children of a relationship with their father, nor has she in any real way, taken proper steps to encourage the relationship between the children and their father.
It is necessary, in my view, for both parents to move forward and to move forward significantly. Both parents must realise, that to not properly and fully encourage the children's relationship with the other parent and to recognise the benefits that flow from the different parenting skills that each bring, is in fact harmful to the children.
The parents both have much to learn and both have a long way to go in relation to ensuring that they are fully able to facilitate and encourage a relationship, but by the same token if there is not a recognition by each of that necessary step, then there is harm to the children and it is a matter of real concern, unless both parents are to address such issues.
I have already commented about the difficulties that might arise in relation to changes to the children's circumstances, including spending more time with their father and less time with their mother and other persons significant in their lives. However, I have no doubt the children would adapt and would be able to adapt quickly, particularly with the appropriate encouragement of each of their parents and the appropriate communication to the children by each of the parents of their wish and desire for both to be fully involved in the children's lives.
Section 60CC(3)(e), relating to the practical difficulties and expense of the children spending time with and communicating with the other parent is not really a significant issue here. The parents will be living in the same locality and will be continuing to ensure that the children move between each parent's household on an appropriate basis. There would not be particular financial concerns that would arise, but there would certainly be a need for both parents to recognise the financial circumstances of the other and the need for them to have appropriate input.
In that regard, for example, the calling by the father upon the mother on many occasions, to facilitate transportation must cease or at the very least must be properly recognised as an assistance provided by the mother, for which there should be appropriate credit and for which there should be appropriate recompense. It is hoped, and was indicated, that the father would be arranging the purchase of a proper motor vehicle and that he would be able to meet the travel requirements in relation to the children.
The fact is that there are no enormous difficulties over and above what any family or what any parent is required to meet, in relation to the needs of the children. The fact is that here, both parents simply need to recognise that they both must, to at least a significant degree when the children are with them, put “themselves out”, to ensure that the best interests and the welfare and needs of the children are met.
Section 60CC(3)(f) requires consideration of the capacity of each of the child's parents and of other persons to provide for the needs of the child, including their emotional and intellectual needs. There are obviously concerns in relation to both parents in respect of their ability to meet the emotional needs of the children. The father has failed to recognise on many occasions the effect of his actions, particularly in relation to dealings with the mother and, at least on some occasions, the effect on the children of them being held over from their mother, when that was not the appropriate course to follow.
Just as clearly however, the mother, perhaps again unknowingly, has failed to recognise her effect upon the children, particularly the younger children, of failing to appreciate or to even facilitate a close involvement within the lives of the children, by their father. There is a lack of appreciation by both parents of the emotional effects upon the children of their behaviours, but there is hope that each parent can move forward.
I remain troubled, however, again pursuant to this subsection, by the failure to meet the intellectual needs of the children. Both parents have, at least to some degree, failed to meet particularly educational requirements in relation to the children though both have laid criticism at the foot of the other parent, in relation to issues with regard to the children's development.
It cannot be avoided, however, that there was a very real concern that arose, in relation to the children's school attendance and that was almost entirely when in the care of the mother. It is a matter that troubled me very greatly in relation to this matter and is one that needs to be addressed by the mother in particular. One would hope, that if there is, as anticipated by all, far more involvement by the father in the children's lives, including their academic lives, then there will be a greater opportunity for both parents to recognise the need for the intellectual development of the children and of the absolutely essential nature of ensuring that the children's school attendance is of a very significant and appropriate level.
I obviously have commented about issues in relation to maturity, sex, lifestyle and background during the commentaries in relation to this matter and, in my view, there are no factors which would arise which would give rise to any real effect upon any orders to be made. Similarly, there are not issues here relating to Aboriginal or Torres Strait Islander cultural matters and they are not factors which would impact on any proposed parenting orders.
I have commented at length upon issues in relation to the attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents and of course in many instances they have each in different ways fallen down on what might be hoped or expected. I have no doubt, however, that both parents have both the intellectual capacity, the wherewithal and determination to show an appropriate and responsible attitude to parenting and to ensure that the children's best interests are met.

Family violence is not a factor that arises to any real or significant degree in relation to this matter and in my view is not a matter which would in any real way influence a determination, in respect of the matter.
There is a general catchall that arises pursuant to subsection (l) and subsection (m) of section 60CC(3). The court must make orders that would, as best it can assess, be least likely to lead to the institution of further proceedings and must also, of course, consider other matters that might be relevant in relation to determination.
There is no real assurance that any orders that a court might make, following a determination of proceedings, is going to be less likely than other orders to lead to further proceedings, but in this matter in particular I am comforted by the fact that, if both parents have the opportunity for full and proper involvement in the children's lives, and at the same time have the respite that is available by shared time with the children, that it is less likely to lead to proceedings than would be the case if one parent or the other was to have sole parental responsibility, even in respect of only certain of the issues of dispute and determination in relation to the children, or one parent or the other was to be spending less time with the children.
In my view equal shared parental responsibility and equal time are the most appropriate orders to be put in place, which would be least likely to lead to further proceedings between the parties.
Finally, I must also look at those matters which arise pursuant to the provisions of section 60CC(4) and consider the extent to which each of the child's parents has fulfilled or failed to fulfil his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents has taken or failed to take the opportunity to participate in making decisions, spending time with the child or children and communicating with the children, and has facilitated or failed to facilitate the other parent participating in making decisions, spending time with the child or children, and communicating with the child or children.
Here, neither parent has been as determined as one would have hoped in involving themselves in the children's lives, or from the mother's perspective, in facilitating the other parent's involvement in the child's or children's lives. Each need to do better. Each would hopefully recognise that it is essential that they change some of the practices of the past and move forward.
Whilst there are criticisms that can be made of the father in relation to his lack of involvement for many years in the early years of the children's lives, there are just as great a consideration and criticisms that arise in relation to what I would think have been circumstances where the mother has set out to exclude the father from some of the decisions to be made, or at the very least to properly discuss with the father arrangements in relation to the children. Both parents need to improve; both parents in my view can improve.
In the end, as is perhaps obvious therefore from the lengthy and detailed reasons that have been given in relation to this matter, I am satisfied that if both parents are to move forward, if both parents are to fully provide for and to ensure the best interests and the welfare of the children are met, then there needs to be equal shared parental responsibility and equal time within the households of each of the parents. It can be facilitated, it is practicable that it should occur, and in my view it is in the best interests of the children.

I certify that the preceding one hundred and seventy-seven (177) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate: L Nielsen

Date: 4 December 2009