Raleigh and Raleigh (No 2)

FAMILY COURT OF AUSTRALIA

RALEIGH & RALEIGH (NO 2)

[2015] FamCA 626

FAMILY LAW – CHILDREN – Where the mother seeks shared parental responsibility – Where the father seeks that he retain sole parental responsibility in respect of decisions as to the children’s high school – Where the father alleges family violence by the mother – Where it is found that there are no reasonable grounds to believe the mother has engaged in family violence – Where the presumption of equal shared parental responsibility applies and is in the children’s best interests – Where the children have a meaningful relationship with both the parties but it is found that an increase in the children’s time with the mother will increase the benefit of that relationship without negatively impacting the relationship with the father – Where little weight is placed on the children’s expressed views because of the children’s involvement in the dispute – Where the children have been exposed to an inappropriate level of parental conflict – Where the family consultant opined there is little reason for the children not to live in an equal time arrangement – Where the parents have different parenting styles – Where it is found to be in the children’s best interests for the children to live in a week about arrangement with their parents – Where equal time is reasonably practicable.

Family Law Act 1975 (Cth)

Pavli & Befa (2013) 48 Fam LR 677

APPLICANT:

Ms Raleigh

RESPONDENT:

Mr Raleigh

FILE NUMBER:

SYC

2533

2013

DATE DELIVERED:

30 July 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

28 – 30 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wheelhouse, SC

SOLICITOR FOR THE APPLICANT:

Attunes Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge, SC

Ms Clifford

SOLICITOR FOR THE RESPONDENT:

Haydon Fowler Corbett Jessop

Orders

The parties have equal shared parental responsibility for the children B (“B”) born … 2003 and C (“C”) born … 2005 (“the children”).
The parties forthwith do all acts and things and sign all documents as may be required to enrol B in one of the following schools for the purposes of his secondary education, in order of descending priority:
2.1.I School, at J Town;
2.2.K School.
In the event that B is unable to obtain a place at either school mentioned in order 2 and the parties are unable to then reach a decision about B’s high school, either party has liberty to relist the matter on 14 days notice.
The parties forthwith do all acts and things and sign all documents as may be required to enrol C in one of the following schools for the purposes of her secondary education, in order of descending priority:
4.1.I School, at J Town;
4.2.K School.
The children live with the father and mother on alternate weeks during school terms with changeover to occur at the conclusion of school on Monday afternoon of each week:
The children live with the mother and father during school holidays as follows:
6.1.For one half of all term school holiday periods, and in default of agreement as to which half then:
6.1.1.If the children lived with the mother during the last weekend prior to the conclusion of the school term preceding the school holiday period, then with the mother for the second half; and
6.1.2.If the children lived with the father during the last weekend prior to the conclusion of the school term preceding the school holiday period, then with the mother for the first half.
6.2.During the Christmas school holiday periods, with the mother for the first half of those holidays which commence in odd numbered years and for the second half of those holiday periods which commence in even numbered years.
Notwithstanding order 6 of these orders, the children shall live with the mother and with the father at the following times:
7.1.With the father from 9.00 a.m. Christmas Eve until 4.00 p.m. Christmas Day in odd numbered years
7.2.With the mother from 9.00 a.m. Christmas Eve until 4.00 p.m. Christmas Day in even numbered years.
7.3.With the father from 10.00 a.m. until 5.00 p.m. on Father’s Day.
7.4.With the mother from 10.00 a.m. until 5.00 p.m. on Mother’s Day.
7.5.With each parent on the respective birthdays of the children noting that:
7.5.1.If the children’s birthdays fall on a weekend or during school holiday periods then the parent who does not otherwise have the care of the children on that day is to spend not less than four (4) hours with the children at such times as may be agreed;
7.5.2.If the children’s birthdays fall on a school day then the parent who does not otherwise have the care of the children is to spend two (2) hours with the children at such times as may be agreed;
7.6.With each parent on the respective birthdays of the mother and father noting that:
7.6.1.If the parent’s birthday falls on a weekend or during school holiday periods then the parent who has their birthday on that day is to spend not less than four (4) hours with the children at such times as may be agreed;
7.6.2.if the parent’s birthday falls on a school day then the parent who does not otherwise have the care of the children is to spend two (2) hours with the children at such times as may be agreed.
7.7.On such other occasions as may be agreed in writing by the parties.
For the purpose of the children living with and spending time with the mother and father:
8.1.If the time the children are to live with a parent commences at the conclusion of school then that parent shall collect the children from their school at that time and if the time the children live with a parent concludes at the commencement of school, then that parent will deliver the children to their school at the conclusion of the time.
8.2.If the children are to spend time with a parent on Mother’s Day or Father’s Day, a child’s birthday or a parent’s birthday, during a period when the children are living with the other parent then the parent with whom the children are to spend time with shall collect the children from the other parent’s residence at the commencement of the time and return the children to the other parent’s residence at the conclusion of the time.
8.3.For the purposes of all other change over times, the parent with whom the children are to spend time with/live with shall collect the children at the commencement of that time from the other parent’s home.
Each party shall:
9.1.Facilitate the attendance of the children at their extra-curricular activities, except for any extra-curricular activity the children have been registered in by a party without the agreement of the other party. It is noted that both parties have agreed that the children may be registered to participate in the following extra-curricular activities:
9.1.1.Taekwondo.
9.1.2.Swimming classes.
9.1.3.Soccer.
Should either parent be unable to personally take the children (or either of them) to any extra-curricular activities whilst the children would ordinarily be in that parent’s care then that parent shall give the other parent the first option of personally taking the children to their extra-curricular activities in their absence.
9.2.Facilitate the attendance of a child at any special school event or function organised by that child’s school and to which that child is invited to attend.
9.3.Keep the other party informed as to any accident or illness of the children and inform the other within twenty-four (24) hours of the time and place of medical or therapeutic consultations arranged and the name of all medical practitioners involved in the care of the children and that each party be entitled to attend at all specialist medical appointments and to obtain from such specialist a written report at their sole cost.
9.4.Keep the other party informed at all times of their mobile telephone number, landline telephone number, email address and residential address.
In the event that the children (or either of them) are away or to be away from their normal residential address for a period in excess of forty-eight (48) hours then the party who has the care of the children inform the other party of their proposed address, contact details and the name/s of all other person traveling with the parent and children (or either of them) during such period no later than three (3) days prior to departure.
Unless otherwise agreed in writing:
11.1.Should either of the parents be unable to care for the children whilst the children would ordinarily be in that parent’s care for a period greater than twenty-four (24) hours then that parent shall give the other parent the first option of caring for the children in their absence.
11.2.In the event that alternate carers are required to assist with the care of the children for a period of greater than twenty-four (24) hours then the parents are to first agree in writing as to who the alternate care is to be.
Unless otherwise agreed in writing:
12.1.If one of the parents proposes to take the children or any of them away for holidays outside New South Wales but within the Commonwealth of Australia, that parent shall provide the other parent with the address and telephone number of the proposed holiday location and the name/s of all other person traveling with the parent and children on the holiday not less than seven (7) days prior to departure.
12.2.Both parties are restrained from removing the children from the Commonwealth of Australia without the consent in writing of the other party or by court order.
12.3.If a parent is travelling outside New South Wales but within the Commonwealth of Australia, or overseas with the children, that parent must arrange for the children to contact via any electronic means the other parent within four (4) hours of arrival at the intended destination and then arrange for the children to telephone the other parent as soon as possible after arrival at the intended destination (not including any flight stop-overs) and then on each alternate day during the period of the trip and within four (4) hours of arrival back in Sydney or Australia.
12.4.The father have possession of the children’s passports for safe keeping and if the mother is travelling overseas with the children in accordance with these orders, the father provide the children’s passports to the mother not less than four (4) weeks prior to the date of the intended departure and the mother return the children’s passports to the father within seventy-two (72) hours of return from any overseas travel with the children.
Unless otherwise agreed in writing:
13.1.During periods when the children are living with either parent the parent with whom the children are not living with/spending time with at that time shall be at liberty to communicate with the children by telephone and/or Skype each alternate day between 6.00 p.m. and 7.00 p.m., and the parent with whom the children are living with/spending time with at that time is to ensure the children are available to take such calls and to encourage the children to answer the call.
13.2.If the children or either of them express a wish to telephone the other parent at any reasonable time whilst they are in the other parent’s care then that parent shall assist the children or child to telephone the other parent at that parent’s cost and/or ensure that the children’s personal mobile phones are made available to them for this purpose.
13.3.Each parent shall ensure that while the children are communicating with the other parent over the telephone that they provide the children or child with a private room for the telephone call to take place in and that the telephone is not on loud speaker.
13.4.Each parent shall advise the other as soon as reasonably practical of:
13.4.1.Any significant illness, accident or injury suffered by one of the children;
13.4.2.Any significant medical or dental treatment provided to one of the children;
13.4.3.Any medication any of the children are taking whilst they are in the other parent’s care, including the dosage of the medication.
The parties be restrained from relocating their respective residences outside the boundaries of the Sutherland Shire Local Government area without the written consent of each other or an order of the court first obtained.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Raleigh & Raleigh (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2533 of 2013

Ms Raleigh

Applicant

And

Mr Raleigh

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This matter involves parenting arrangements for the two children of the marriage, B (“B”) born in 2003 and currently 11 years old, and C (“C”) born in 2005 and currently 9 years old.
Since separation the children have remained living in the former matrimonial home with the father. On 24 June 2013 interim parenting orders were made by consent which provided that the children live with the father and spend time with the mother each alternate week from after school Thursday to before school Monday, for equal time during school holidays and on special occasions.
By the end of final submissions, the parties had agreed upon parenting orders as they related to all but one aspect of shared parental responsibility. The parties had agreed about:
3.1.The initial choices for the children’s high schools (if those schools were available);
3.2.Time during school holidays and special days;
3.3.Telephone and skype communication between the parents and the children;
3.4.Arrangements in relation to changeover;
3.5.Involvement in the children’s extra-curricular activities and school functions;
3.6.The sharing of information between the parents;
3.7.The circumstances in which a parent would care for the children if the other parent was absent;
3.8.Interstate travel;
3.9.The requirement for consent in respect of overseas travel; and
3.10.That the parties be restrained from relocating their respective residences outside the boundaries of the local Government area in which they live.
There were only two matters remaining which required determination. The first was whether or not there be an order for equal shared parental responsibility as sought by the mother or whether an order be made for shared parental responsibility in respect of decisions in relation to all major long term issues apart from the secondary school that each child would attend in the event the first two high schools that the parties agreed on are not available. The parties have agreed that the children will, in order of priority, commence their high school at I School at J Town, or if that school is not available, at K School. The father wishes the court to make an order that he be able to make the decision about the children’s secondary education if the two preferred high schools are not available and proposes in the descending order of priority for B:
4.1.The Scots College at Bellevue Hill;
4.2.M School;
4.3.In the event that there is no position available for B at any of the named four schools, then such school as the father nominates.
The father proposes that in relation to C, that if one of the two agreed schools is not available, then C, in descending order of priority, go to:
5.1.L School;
5.2.M School;
5.3.In the event that there is no position available at any of the four named schools, then C go to the school nominated by the father.
The second issue which requires determination is the amount of time the children live with each of their parents during school term. Up until the final stage of the hearing, the father had proposed that there be a reduction in the current time the children spend with their mother under interim arrangements. In the final part of the hearing and during final submissions, the father amended his position by saying that final orders should be made in the same terms as those which have been in place since the current interim orders were made in June 2013, namely, that the children ordinarily live with the father and spend time with the mother each alternate week from after school Thursday to before school Monday.
The mother sought an order that the children live with each parent week about during school terms.

DOCUMENTS RELIED UPON

The documents relied upon by each party and the expert reports are set out in Schedule 1.

SHORT HISTORY

The father was born in 1954 and is currently 61 years old.
The mother was born in 1965 and is currently 49 years old.
The parties commenced cohabitation in 2001 and were married in 2003.
B was born in 2003 and is currently 11 years old.
C was born in 2005 and is currently 9 years old.
The parties separated under one roof in 2009 and the mother moved out of the former matrimonial home in January 2013.

CREDIT

There have been incidents where the father alleges the mother behaved inappropriately. The mother has denied the father’s version. I have generally accepted the mother as a more reliable historian on these occasions, mainly because of the manner in which the father attempted to embellish his version of the event in early 2010.

DETAILED CHRONOLOGY

The father was born in 1952.
The mother was born in 1965.
B was born in 2003.
Between 2004 and August 2005 the primary care of B was shared among the mother, father and maternal grandmother depending on the respective work commitments of each of the parents.
C was born in 2005. After C was born the mother was the primary carer for both B and C. The father was working full time. The father says that after C’s birth for about two to three weeks he was the primary carer for B.
In January 2006 B commenced day care two days per week. The father says that B attended day care four days per week at this time.
Between January and September 2007 the father was working full time in Melbourne. The mother and children also relocated to Melbourne and the mother was the primary carer of the children at this time.
The parties returned to Sydney in January 2007 and in 2008 the children attended day care two days per week.
In 2009 B commenced primary school.
From February 2009 until January 2013 the mother resided downstairs in the former matrimonial home, and the father upstairs. For some of this time the parties attended marriage counselling. The parties agree that they separated under the one roof in February 2009.
The father alleges that sometime in early 2010 the parties had an argument over the father arranging a playdate for C with one of her friends. The father says the mother hit him with a rolled up newspaper while screaming at him. He called the police. The mother gave her version of this incident during oral evidence and this event is discussed in more detail below.
In 2011 C commenced primary school. After C commenced school the mother commenced a TAFE course. The father was working long hours and a carer was employed to care for the children while the mother was at TAFE.
The father ceased working full time in late 2011.
The father alleges that in 2011 an incident occurred where the mother lost control and harmed B.
In February 2012 the father says the mother stopped providing regular assistance with the care of the children and household chores.

In June 2012 the father commenced taking the children to church each week.
The father asserts that on 23 December 2012 the mother arrived home at about 8.00pm, obviously intoxicated. The father says that in the presence of the children the mother angrily yelled “you’re the cause of my problems. I wish you would die. I wish you would just go away and die”.
On Christmas day 2012 after the children had opened their presents, the father says the mother began yelling at him in the presence of the children. The father also says that B came to him and said “Mum said she’s breaking up with you, dad, and we will live one week with her and one week with you”. The father says that the following day B came to him and said “I’m having bad dreams dad. I went away and you weren’t there”.
On 28 December 2012 the father confronted the mother about her then boyfriend.
The father alleges that on 19 January 2013 the mother washed B’s mouth out with soap because B had called her “an idiot”.
The father also contends that on 22 January 2013 C said to him “Mummy is scary and going crazy”.
The mother moved out of the former matrimonial home on 26 January 2013. At that stage the parties had agreed that the children would spend time with each of them on an equal basis. The mother asserts that the father however only allowed her to spend time with the children for one hour each day. The father also would not bring the children to the mother’s home.
In March 2013 the children commenced spending time with the mother from Wednesday afterschool until Saturday afternoon. The mother says she requested to spend more time with the children but the father refused saying that the children were too tired from after school activities.
The father took the children to Country N between 8 April 2013 and 18 April 2013.
On 22 June 2013 the father says the mother reversed her car with the door open, hitting the father but not hurting him.
On 24 June 2013 interim parenting orders were made by consent which provided that the children live with the father and spend time with the mother each alternate week from after school Thursday to before school Monday, for equal time during school holidays and on special occasions. The mother now contends that she agreed to these orders as she needed to work as often as possible in order to meet rental payments and living expenses.
On 3 July 2013 the mother took indefinite leave from her employment and requested the father to allow her to spend time with the children each alternate week. The father refused.
On 16 September 2013 B was admitted to hospital due to a problem with his leg. B remained in hospital for about eight nights during which C stayed with the mother.
In the second half of 2014 the father undertook a course in financial planning at TAFE. On completion of this course the father intends to obtain work as a financial planner.
The mother asserts that on 17 December 2014 the father came to the mother’s home with the children and told the children to question the mother about her current partner.
Between 8 January 2015 and 13 January 2015 the children, mother and maternal grandmother went on holidays to O Town.

THE APPROACH IN CHILDREN’S CASES

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
As indicated, the mother in this case seeks an order for equal shared parental responsibility. The father seeks an order for shared parental responsibility but wishes to have the ultimate decision making in relation to the children’s high schools in the event that the parties’ first two choices are unavailable.
Counsel for the father argued that the presumption of equal shared parental responsibility is not available to assist the mother. Section 61DA(1) of the Act provides that 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 children for the children’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the children has engaged in abuse of the children or family violence.
Section 61DA(4) of the Act provides that if the presumption does apply it may be rebutted by evidence that satisfies the court that it would not be in the best interests of the children for the children’s parents to have equal shared parental responsibility for the child.
The definition of abuse and family violence is contained in s 4 of the Act. It was not submitted by counsel for the father that the mother has abused one of the children. She did however submit that a finding of existence of family violence would be made in this case. The definition of family violence is contained in s 4AB(1) of the Act as meaning violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. The examples of behaviour that may constitute family violence given in s 4AB(2) of the Act are examples of coercing and controlling behaviour.
A question arises in this case as to whether or not the behaviour by the mother to which the father draws attention was coercive or controlling behaviour by her in respect of the father, or whether the mother’s behaviour caused the father to be fearful. It is only if a finding of the existence of family violence is made that the presumption of equal shared parental responsibility does not apply.
Whether or not the presumption applies, there is still the overarching issue as to whether or not an order for equal shared parental responsibility should be made. Both that question (and the preliminary question as to whether or not the presumption is rebutted because it would not be in the children’s best interest to apply it) is answered by considering whether or not it would be in the children’s best interests to make an order for equal shared parental responsibility.
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the children as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.
In the event that an order for equal shared parental responsibility is to be made, the provisions of s 65DAA of the Act are triggered. I must consider whether the children spending equal time with each of their parents would be in the best interests of the children and consider whether the children spending equal time with each of the parents is reasonably practicable. If it is, I must consider making an order to provide for the children to spend equal time with each of the parents (s 65DAA(1) of the Act).
In the event that I do not conclude that equal time is in the best interest of the children or reasonably practicable, in this case the provisions of s 65DAA(2) are satisfied by the adoption of the father’s proposal for substantial and significant time.
As I have already said, consideration of what is in the children’s best interests requires the consideration of matters pursuant to s 60CC of the Act. What is reasonably practicable requires me to have regard to those matters set out in s 65DAA(5) of the Act.

DOES THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY APPLY IN THIS CASE?

Counsel for the father argued that the presumption of equal shared parental responsibility (s 61DA(1) of the Act) does not apply in this case because of what is said to be at least one event of family violence.

Was there family violence?

As mentioned above, there was an incident between the parties in early 2010 that was the focus of questions during the hearing. The father’s version of this incident was originally set out at paragraph 47 of his primary affidavit but he also gave some supplementary evidence about it with leave in chief. The father’s evidence was that the mother became angry during a discussion that the parties were having in relation to a play date for C, with the mother accusing the father of arranging that play date for C in circumstances where the mother thought the father was “interested” in C’s friend’s mother. The father alleges that the mother attacked him with a rolled up newspaper. Whilst the mother denied calling the father “a bastard”, she accepted that heated words were exchanged and did not deny that she used the word “arsehole”. The mother says that she was wearing a velvet robe and hit the father a number of times with the cord on that robe. She denies she hit him with a newspaper.
The father’s version is the mother was uncontrolled, that the argument went on for about 10 minutes; she chased him through the house and cornered him in the kitchen. The father said that he asked the mother to stop hitting him with the newspaper because it was hurting him and that he would call the police if she did not stop. He then called the police who came to the house. The police did not take any action but advised the father that he could take his own proceedings if he wished, but the father chose not to do so. In oral evidence the father embellished his original version by saying that when the mother cornered him in the kitchen there were knives reasonably approximate to where the argument was taking place and he was worried she might pick one up:
At the time the mother cornered me in the kitchen, she was near a set of steak knives, she spent 15 minutes chasing me all over the place, whacking me, I made an attempt to get out of the kitchen. It appeared it was going to go beyond just hitting me with the newspaper. I became worried about it, I asked her to drop it, she wouldn’t drop it and back of….
…and there was motion to move towards me, I just reached over and picked up the phone in the kitchen and dialled triple 0…
I do not accept the father’s version. The father had at no time before his oral evidence said he had a fear the mother might use a knife.
The police, when they attended the former matrimonial home, were not sufficiently alarmed to remove the mother from the premises. I have no evidence that the father made a complaint at the time to the police that he was fearful the mother might turn to the knife drawer. When speaking about this incident to the family consultant on 11 September 2013, the father mentioned the newspaper but there was no mention of any fear about any knife. The father himself did not take any action to seek any type of protection order against the mother. Having observed the parties in the witness box, I think it is highly unlikely that the father would have been fearful of the mother. I find the father had no fear of the mother during this incident and his calling the police was an overreaction. I prefer the mother’s version about this event over that of the father’s.
The definition of family violence (s 4AB of the Act) requires the father to have been fearful and I have found he was not.
Even though the police were called, I do not find that the children were exposed to family violence as a result of this incident.
The father alleges that in 2011 another incident occurred where the mother lost control and harmed B. He says that:
68.1.He heard the mother yelling angrily at B and saw the mother pushing B back into his bedroom with her hand.
68.2.B then hit the mother on the arm and the mother allegedly lost control and grabbed B with her hand by his stomach and threw him through the air for a distance of one or one and a half metres.
68.3.He observed red marks and broken skin on B’s stomach where the mother had grabbed him.
68.4.In the ensuing days B had bruising on that area of his stomach.
The mother denied that this incident took place.
There is no indication from either the family consultant or the child’s therapist that such incident is something of which B has retained a negative memory.
I am unable to accept the father’s version of this incident.
In his affidavit the father sets out his version of a further incident he says took place on 22 June 2013. He says this was two days before the parties were due to go to court for consideration of interim orders and:
72.1.The mother was yelling at the father.
72.2.C was seated in the front passenger seat of the mother’s car and C as crying.
72.3.B was in the back seat. The father opened the front passenger door to settle C and the mother looked at the father and accelerated the car in reverse.
72.4.The front passenger door was still open and struck the father, almost knocking him to the ground.
72.5.The mother then braked suddenly and told the father to “get away”.
72.6.The mother then accelerated in reverse out of the driveway and drove off in a high speed.
This incident was not the subject of cross examination of either of the parties during the hearing.
The father was not hurt and I am unable to find that the mother had any intention to do so.
There are no reasonable grounds to believe that the mother has engaged in family violence and accordingly the presumption of equal shared parental responsibility applies in this case (s 61DA(1) and (2)).

EQUAL SHARED PARENTAL RESPONSIBILITY AND THE BEST INTERESTS OF THE CHILDREN

The next question for consideration is whether or not the presumption of equal shared parental responsibility is rebutted by a consideration of what is in the best interests of the children, or if in fact I am wrong in my findings in respect of family violence, whether an order for equal shared parental responsibility should be made in the best interests of the children in any event.
In considering how to determine what is in the children’s best interests, I now discuss the statutory considerations.

STATUTORY CONSIDERATIONS

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))

The mother is currently spending time with the children for four days each fortnight.
In her report the family consultant observed that the parents have different personalities and parenting styles but that does not automatically suggest that one parent should have less time with the children than the other. She also noted that the mother currently has a limited role with the children and the children would benefit from her playing a larger role, especially in respect of their schooling and other activities. The family consultant is of the view that on balance, increasing the children’s time with their mother to a week about arrangement would provide them with the time they need with her, to maximise the benefit of having a meaningful relationship with her.
Counsel for the father argued that the children currently have a meaningful with their mother and are benefiting from it and there is no need for her to have extra time to ensure that that meaningful relationship will remain unaffected. Counsel for the father argued that the mother is already extensively involved in the children’s lives, including in such things as tuckshop duty and with the school community. The mother is now attending the children’s psychologist, she is now doing homework, and she attends some of their activities. It is the father’s position that the children need no extra time to improve their meaningful relationship with their mother.
I find that an increase in the children’s time with the mother will have the effect of conserving, maintaining and probably increasing the benefit that the children have from the meaningful relationship with their mother without impacting in any negative way on the currently meaningful relationship they have with their father.

The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))

The father alleges that the mother has been verbally, and on occasion physically, abusive towards him and the children, especially prior to separation and occasionally since separation. The mother alleges that there were many verbal arguments between her and the father and that the father was mentally abusive and constantly critical of her during the marriage about things including her weight and her level of education.
The mother does not consider that the children need protection from physical harm by the father.
The family consultant asserts that there appears to be no current concerns about family violence, drug or alcohol misuse or mental health.
There has been no reported incident of alleged family violence since 2013. There is no need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.

The additional considerations

Children’s views (s 60CC(3)(a))

On 17 October 2013, at the interviews for the child responsive program memorandum, the children expressed similar views to the family consultant. C said that the arrangements should remain as they were because if there was as 50/50 arrangement, her mother may not take B to karate on Wednesday nights. C also told the family consultant that she would be happy to have one extra night with her mother, and was aware her mother wanted equal time. B was noted to have struggled during the assessment about whether he was giving the “right” answer and at one stage needed to speak to his sister so that they could come up with one and the same answer as to the question of spending time with the mother. B said he would like the arrangement to stay the same and that he liked living with his father.
The family consultant gave evidence that she was significantly concerned on the first occasion that when B was expressing his views that he was saying things that were very similar to statements that had been made by his father. I infer that the father and B had discussions about what his views were prior to the interview on 17 October 2013. Counsel for the father submitted that had B been simply parroting his father’s views, B would have expressed a view to the family consultant that he wanted to spend less time with his mother. I do not necessarily accept that the father’s coaching of B was at such a precise level. B is however very well aware of his father’s wishes and attitudes and I find those wishes and attitudes would suppress any expression by B of a view that he would spend more time with his mother.
On 13 October 2014 the family consultant conducted interviews in preparation for the full family report and made observations of the parties and the children throughout the day. On the day of the interviews with the family consultant, both parents took the children to lunch together. At paragraph 34 of the family report, the family consultant states:
Both parents took the children to lunch together and, despite being directed not to discuss the assessment interviews or any Court matters at lunch time with the children, [the father] did so with [B] during the lunch break. After lunch in interview, [the father] stated that he had spoken with [B] who had told him that, although he had told the writer he was worried about both parents’ reactions after the interviews, this was not true. [The father] emphasised that [B] was worried only about his mother’s reaction and not his [father’s].

The father addresses paragraph 34 of the family report at pages 66 and 67 of his affidavit. The father’s evidence is that there was a period during lunch on the day of the interviews when he was alone with B because the mother had gone with C to an adjoining table (the mother does not remember them being apart at this time but I am satisfied that there was a conversation between B and his father during this lunch time which the mother did not hear). In the father’s version of the conversation with B, he says that B said to him, “Mum might get upset about what I am going to say to the lady at the court”. The father says he replied, “Don’t worry. Just say what you want to say”.
The father in his oral evidence indicated that he may have given a mistaken version of the conversation with B and that B may have in fact already had an interview with the family consultant. He accepted he may well have said to the family consultant what the family consultant indicates in her report (as set out in [88]). I have no doubt that the family consultant has accurately recorded what the father said to her.
The family consultant also notes that it is of even greater concern that both children were reported to be physically and emotionally drained at school the day following the interviews. Her oral evidence was that during the afternoon of the interviews the children were relaxed and happy, and she questioned during her evidence whether the father had spoken to them about what had happened during the interviews with her when the father and children got home that night. Although that speculation is consistent with other evidence relating to the father’s behaviour, I place little weight on that speculation.
The family consultant says in the family report dated 7 November 2014 that C was clearly aware of the purpose for the interviews. C told the family consultant that although she is aware that her father wants the time with the mother to be less, she would prefer it to be the same as it is now. She said she is happy living primarily with her father but if her mother were to get a bigger apartment she would stay an extra night per fortnight. She added that if the judge were to say that she and B should spend more time with their mother, it would be “OK”. This is a slight shift in C’s view as expressed in 2013.
C described both parents to the family consultant warmly and spoke about happy times with each parent. She said she can talk with either parent if she is worried about something. However she said that she gets occasionally annoyed when her mother calls, if she is doing something. She also said that the father gets annoyed because the mother calls all the time.
It was C’s view that both parents yell at her and B but the mother shouts the most “when she has good reason”. C gave an example of when her and B do not cooperate at bed time.
C made some negative statements about the mother’s past behaviour but each time commented positively that those things had not occurred for a long time.
C told the family consultant that she likes being with the father a bit more because “he takes care of [her] and [B] a bit better” while “Mum sits outside drinking coffee”.
C also told the family consultant that she knows her father does not want her mother to do homework so she and B do not take any homework to their mother’s home.
B presented to the family consultant as careful in his speech and quite anxious. B told the family consultant he was worried about coming into the court for the interviews “in case [he] say[s] the wrong thing today and say[s] something different from what they [his father and mother] want”. He told the family consultant he was aware of what each parents wanted and was worried about their reactions afterwards. B said he felt “caught in the middle” and that he felt “stress a lot in [his] stomach”. B had a bleeding nose during the interview when discussing his worries.
B told the family consultant that he wanted things to stay the same and that if he and C were to have more time with the mother, they would not be able to participate in as many activities. B also said he misses each of his parents when with the other and feels upset when his parents argue.
It is the father’s view that the mother has attempted to influence the children’s views. In his affidavit the father contends that on occasions in mid to late 2013 B told the father that the mother had asked B to tell the family consultant and the father that he would want to spend 50 percent of the time with each parent. In oral evidence the mother denied this and said that the children would speak with her about what they want and any conversation about percentage of time was raised by the children. The mother accepted the children may say different things to her to what they are saying to the father and other third parties in respect of their views.
Counsel for the father correctly highlighted the expressed views of each of the children but particularly B. I accept that B’s views have been consistent over a period of time (since September 2013). It was submitted that B’s views should be given weight because he was courageous in expressing them in circumstances were he thought he might be offending both parents.
It is not surprising that B would be expressing the views that he is expressing given that he has lived the last two years in the former matrimonial home with his father and has had initially limited time and then four nights a fortnight with his mother in far less salubrious accommodation. His father has also been intensively involved in B’s schooling and extra-curricular activities. The father has also arranged for psychological therapy for B (almost entirely without involving the mother in that process).
B does have a problem in expressing himself according to Ms P. The father (up until a few days before the hearing) was maintaining a position that the current arrangements since the interim orders were unsatisfactory for the children (this is a different position he subsequently adopted during the final hearing and in final submissions). I accept that during the family report interviews, B was aware that his father wanted him to have less time with his mother and his mother wanted him to have more time. B picked the middle course and decided that the current status quo arrangements would probably be the best. B however should not, at his age and level of maturity, be put in a position where he chooses between his parent’s competing views as to what is in his best interests.
The family consultant concluded in her report that both children’s views appeared to be influenced by the dispute between their parents and that the children have been inappropriately involved in the adult issues. I accept that is so. The family consultant suggests that weight not be given to the children’s views. The family consultant’s opinion was not diminished during cross examination. I am concerned that an influence on the children, in expressing their views, is the notion that their mother will jeopardise activities that have been ordinarily organised in their time with the father. There is no basis for that notion and it is most likely something which the father has suggested to them. The family consultant said that a most serious issue of concern in this matter is the burden of responsibility being placed on the children by their involvement in the parenting dispute, particularly in relation to the time they should spend with each parent.
I accept the family consultant’s assessment that little weight should be placed upon the children’s expressed views.

Relationships of the children with the parents and other persons (s 60CC(3)(b))

During the interviews for the family report the family consultant indicated that the children have warm and comfortable relationships with each parent and that both parents were affectionate towards the children and this was reciprocal.
The mother asserts that her bond with the children is close and she feels it increases the more time they spend together.
The children have a close relationship with the maternal grandmother, aunty and cousins. The mother organises family get togethers when the children are spending time with her. I accept the children appear relaxed when spending time with the maternal family.
The mother has maintained a relationship with the father’s sister and father. The children spend time with the paternal family on some occasions when they are in the mother’s care.
The mother is in a new relationship. The mother did not call her new partner as a witness. The mother introduced the children to her partner in December 2014. That same night she told the father. The mother asserts that the children have expressed to her that they like her new partner and are happy she is dating. The father asserts that the children have expressed concern about the mother’s new partner. He says in his affidavit that on 9 December 2014 B told him “[The mother’s new partner] called me a bastard” and “…called mum a hot chick”. On 14 December 2014 the father asserts that C told him that the mother’s partner had cuddled her and she did not like it. He also asserts that C said to him “[the mother’s new partner] cuddled me and said that Ferrari is just for you and me”. When saying this, the father asserts C cringed and looked uncomfortable. The father encouraged C to discuss this issue with the mother in his presence and on 17 December 2014 the father brought the children to the mother’s home so they could discuss their concerns with her about her new partner. The father asserts in his written evidence one of the things B told the mother was that when he wakes up in the morning he feels “kind of weird” when the mother’s partner is there and that C has engaged with a psychologist about this issue.
The mother was asked in cross examination whether she considered if her partner would become a member of her household and assume a role in the children’s lives. The mother’s evidence was fundamentally that she would put the children first and that she would not invite him to be a member of her household until she was comfortable the children would be able to deal with it and I accept her evidence about that. The mother accepted that the children are still going through a transition in respect of her partner.

Extent to which each parent has taken the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the children (s 60CC(3)(c))

The father has in the past made decisions about the children attending activities without consulting the mother.

Extent to which each parent has fulfilled their obligation to maintain the children (s 60CC(3)(ca))

The mother paid $250 per week in child support when she left the former matrimonial home. However currently neither party is assessed to pay child support to the other.
The father has paid for the children’s day to day living expenses when living with him. He also has paid for all schooling costs and extracurricular activities.

Likely effect of any change in the children’s circumstances (s 60CC(3)(d))

Counsel for the father, when talking about effect of change, pointed to the status quo that had been in place since the interim orders were made. I accept the children are used to the status quo, but that is not a decisive factor if changing the status quo will benefit the children.
The mother conceded under the current arrangements, the children are doing well at school and are attending to their homework.
If the children spend equal time with the parents, the children will continue at their current school (although B will commence high school next year).
The parties reside in the same suburb.
The mother is in the process of establishing a new beauty therapy/massage business. She says in the weeks that she will have the children in her care, on her proposal, she will structure her hours of work so that she will at all times be available to care for the children and will prioritise their needs above any work commitments.
During final submissions, counsel for the father highlighted examples of historical conflict between the parties and submitted that a week about arrangement would create day to day situations where the parties would have to cooperate with one another. She submitted that these events would create triggers for a re-ignition of the past parental conflicts that the parents have had, particularly in circumstances where there was continuing and ongoing litigation in relation to financial matters.
The mother said that in her home each of the children would have their own room and that she would sleep in the living part of the reasonably small accommodation that she currently has. Whilst that is a less than ideal circumstance, it may well be as a result of my order setting aside the binding financial agreement, that the mother will receive some settlement of property that would enable her to improve her accommodation. I am mindful that continuing litigation will be a source of difficulty between the parties and probably for the children, and I take that into account as a consideration.
It was suggested that because B is about to experience the changes inherent in his moving into high school, future change should not be imposed upon him at this time.
B has approximately six months to settle into any new arrangement before he has to go to high school. I am also encouraged by the evidence from Ms P (with whom I was quite impressed) that she would be able to provide therapy for B that would assist him in dealing with the effects of the orders as sought by the mother, if made.

Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))

No practical difficulties or expenses were identified.

The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60cc(3)(i))

The mother has communicated with the children as much as possible and has encouraged the children to discuss issues with her, particularly regarding their concerns or needs. The mother says she has a whiteboard at home upon which the children write their concerns.
The mother has concerns that the father overlooks issues when parenting the children. She feels that he lacks the ability to offer them appropriate support and lacks awareness of their changing needs as they grow into teenagers. For example, the mother says she has to explain to the father the need to purchase C deodorant.
The father made a number of complaints about the mother’s parenting capacity including:
127.1.The father asserts that when the mother attends the children’s extracurricular activities she encourages the children to, for example, play on the iPad rather than complete homework and eat biscuits and chocolate which causes the children to be unable to later finish their dinner. The father also says that the mother causes confusion for the children by at times telephoning them to ask if they would like her to attend sporting events or activities but then does not attend.
127.2.The father described an event on 13 November 2013 when the mother attended a school assembly. The mother approached B to hug her and the father says B pulled away. The mother proceeded to take photos of B. The father says B could not sleep that night.
127.3.The father asserts that in April 2014 B told him the mother had left the children alone at her apartment on a Friday night. The father proceeded to email the mother about this which caused the mother to become angry. The parents involved both the children in this dispute by questioning them about the incident and drawing the children’s attention to the discussions being had about this incident.
127.4.The father asserts that the mother did not send the children to school on three consecutive Mondays (3 November 2014, 17 November 2014 and 1 December 2014) when the children were in her care.
127.5.The father asserts that the children are encouraged to watch scary movies at the mother’s home which frightens them, but I do not attach any weight to that complaint.
The mother responded to some of these complaints. For example, in relation to the first one, the mother told the family consultant that she encourages the children to take responsibility and help with chores. She also limits the use of iPads and monitors and what the children do online. Whilst I accept there may have been some basis for some of these complaints, they need to be viewed in the context of the father’s controlling behaviour as discussed below.
It is the father’s view that he has been the parent more involved in the children’s schooling.
The father has concerns about B being bullied by Q, the son of the mother’s best friend. He asserts that the mother has not taken any action to attempt to prevent the bullying and has put B in difficult positions where he is required to play with Q outside of school hours. The father points to an event on 20 June 2013 when Q and another boy attacked B by hitting him with the zipper of their school jackets. The father raised this with Q’s mother. On 26 June 2013 the father says that B had a cut on his right eye lid. He asserts that B told him that Q was holding up a pencil near his head and when he turned around it poked his eye.
The father also raises concern about an event on 14 July 2013 when he says both children complained of Q swinging a chair at them which hit C in the head and knocked B over. He says that C told him at the time of the incident the mother was “texting her friends”.
The father sets out several other violent incidents between Q and B in his affidavit but no focus was placed on this issue during the hearing.
The father has had meetings with B’s school teacher about these incidents and requested that B sit apart from Q in class and that adequate supervision be provided in the playground.
When speaking with the family consultant, B said that he was not scared of Q but only plays with him at school if playing in a group with other friends. He said he has no problem playing with Q in a group but knows that his father worries a lot about his relationship with Q.
The father told the family consultant that B is anxious about Q and having arrangements with him. The father told the family consultant that B soiled his pants for three days after being made to play with Q in 2013.
Whilst I accept there have been some difficulties between Q and B, the evidence of the family consultant would indicate the father may have overstated them and I am confident that the mother will appropriately manage any interaction between B and Q.
There was an unfortunate event, outlined in an email from the mother to the father on 4 November 2013 (set out at page 2 of Exhibit 15), where the mother rang into the father’s home on an occasion where B (who has difficulties with bowel movements) was on the toilet. The mother was speaking to him whilst he was on the toilet on a mobile phone with the father outside the door. This was an example of a fairly dysfunctional relationship between the parents at that time.
The mother was asked further questions arising from what she wrote to the father in that email (page 2 of Exhibit 15) which stated “Your family and 99% of the school population including the teachers know you need psychiatric help.” The mother, I accept wrote this at a time when her relationship with the father was in a far worse place than it currently is in respect of their ability to work with one another in their roles as the children’s parents.
The children have been exposed to an inappropriate level of parental conflict, particularly during the period of separation under the one roof and immediately after the physical separation. The children are more than aware of the difference in the mother and father’s parenting styles. They have an awareness also of where their parents have in the past differed in relation to matter such as the amount of extra-curricular activity in which the children were being involved.

The parties went through a difficult period immediately after the separation in terms of their ability to work with one another in the best interests of the children. I find that those difficulties have abated over the last year or so.
The mother has dropped from the orders that she has sought a request that the parties communicate by communication book. The parties agree that they are able to communicate both by email and text messaging. The bulk of the written communication between the parties that is in evidence is of a respectful nature.
I accept the family consultant’s opinion that the expressed views of the children should not be accorded particular weight.
It is the opinion of the family consultant, which I accept, that the impact of an equal time arrangement on the children taking into account all the statutory considerations will on balance be positive for them.
There is no other relevant consideration in relation to whether or not equal time is reasonably practicable that has not already been discussed.
I conclude that it is in the children’s best interests and reasonably practicable for them to spend equal time with each of their parents.

PROPOSED ORDERS

I am cognisant of the fact that at this stage the parties have not been able to yet reach a joint decision in relation to what might happen if their first and second choices of high school for B for 2016 fall through. I am in those circumstances prepared to allow either parent to come back to the court on 14 days’ notice for directions to be made for the determination of any competing proposals in relation to that question once that parent had fulfilled all their responsibilities arising under the equal shared parental responsibility order (see s 65DA(3) of the Act) but the parties have been unable to resolve the issue. The mother on that application would need to provide proper evidence of the public high schools that she wishes the children to attend and her preferred priority of public high school.

I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 30 July 2015

Associate:

Date: 30.7.2015

SCHEDULE 1

The applicant mother relies on the following:
a.Initiating Application filed 10 May 2013
b.Mother’s affidavit filed 11 February 2015
c.Affidavit of Ms T filed 6 February 2015
d.Affidavit of Ms U filed 6 February 2015
e.Affidavit of Ms V filed 6 February 2015

The respondent father relies on the following:
a.Response filed 17 July 2013
b.Father’s Affidavit filed 11 February 2015
c.Affidavit of Ms P filed 12 February 2015
d.Affidavit of Ms W filed 11 February 2015
e.Affidavit of Ms X filed 11 February 2015
f.Affidavit of Mr Y filed 6 February 2015
g.Affidavit of Ms Z filed 6 February 2015

The court also had the following documents:
a.Family report dated 7 November 2014
b.Child Responsive Program Memorandum dated 11 September 2013

[2015] FamCA 626

30 July 2015

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Costs

Injunction

Procedural Fairness