Rathborne and Rathborne

FAMILY COURT OF AUSTRALIA

RATHBORNE & RATHBORNE

[2007] FamCA 1440

FAMILY LAW – CHILDREN – With whom a child lives

Family Law Act 1975 (Cth)

APPLICANT:

Ms Rathborne

RESPONDENT:

Mr Rathborne

INDEPENDENT CHILDREN’S LAWYER:

Paul Guterres

FILE NUMBER:

SYF

4540

2006

DATE DELIVERED:

13 December 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Steele J

HEARING DATE:

12, 13 & 14 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr. Moss

SOLICITOR FOR THE APPLICANT:

Turner Whelan Solicitors

SOLICITOR FOR THE RESPONDENT:

Mr. Legg

SOLICITOR FOR THE RESPONDENT:

Burridge & Legg Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms. Karagiannis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

Orders

That the parties have equal shared parental responsibility for the children of the marriage namely, Z born … April 2002 and J born … April 2005 (“the children”).
That the children live with the father.
That the father be restrained from moving his present residence a greater distance from Sydney than the area known as the “Central Coast of NSW” being that area bounded by Wyong Local Council and Gosford City Council without the consent of the mother and if she does not give consent, without obtaining an Order of the Court permitting him to do so.
That the parties shall keep each other advised of any changes to their residential address and their contact telephone numbers.
That the mother spend time with the children as follows:-

During School Term:

(a)On alternate weekends from 5.00 pm on Friday until 5.00 pm on Sundays or 5.00 pm on Mondays in the event that Monday is a public holiday or a pupil free day, the first occasion to be the first weekend of each school term;
(b)On other weekends, from 9.00 am on Saturday until 5.00 pm;

During School Holidays:

(c)For half of each of the term 1, 2 and 3 school holidays.
(d)From 9.00 am on Mondays until 6.00 pm on Sundays during the first full week of the December - January school holidays, thereafter on the third and fifth weeks of those school holidays.

Special Occasions:

(e)On the weekend of Mother’s Day each year from 9.00 am on Mother’s Day in the event that the children are not spending time with their mother pursuant to these Orders.
(f)At Christmas, in addition to the time referred to in these Orders, the children shall spend time with each of the parties as follows :-
(i)with the father from 12.00 midday on 24 December 2007 until 2.00 pm on Christmas Day and the children shall be with the mother from 2.00 pm Christmas Day until 5.00 pm on 26 December, thereafter in alternate years,
(ii)the children shall be with the mother from 12.00 midday on 24 December 2008 until 2.00 pm Christmas Day and with the father from 2.00 pm Christmas Day until 5.00 pm on 26 December 2008, thereafter in alternate years.

(g) At other times by agreement.

In the event that the mother resides within 20 kilometres of the father’s home, the times the mother spends with the children will be varied as follows:-
(a)Weekend time as described in Para 5 (a) herein shall commence at the conclusion of school on Fridays and conclude at the commencement of school on Monday mornings, and
(b)Other weekends as described in Para 5 (b) herein, the mother's time shall commence at the conclusion of school on Fridays and continue until 5.00pm on Saturday.
In the event that Father’s Day falls on a weekend when the children are with the mother for a full weekend pursuant to these Orders, the mother shall return the children to the father at 9.00 am on Father’s Day.
The mother may communicate with the children by telephone at the following times: On Tuesdays and Thursdays and Sundays from 4.00 pm until 6.30 pm and the father shall facilitate the children receiving these calls by ensuring that his telephone is switched on and otherwise able to receive the mother’s phone call; the father shall ensure that the children have adequate privacy for the purpose of these telephone calls.
When the children are with the mother for block periods pursuant to these Orders, the father shall have telephone communication with the children at the same times and at the same conditions as referred to above.
The father shall sign an authority at any school which the children may attend, within 7 days of enrolling the children at that school, to authorise the school to forward to the mother copies of school reports, school photograph applications, school newsletters and any other document ordinarily provided to parents.
The mother shall be at liberty to attend any sporting or other function in which the children shall participate and the mother shall be at liberty to make appropriate contact with the children’s school teachers.
That both parents shall use their best endeavours to be polite and civil to each other whenever they attend a function concerning the children or in the event that they come into contact with each other for the purpose of changeover of the children pursuant to these Orders. The parents shall otherwise use their best endeavours to be polite and civil to each other if they have any other contact relating to the children pursuant to these Orders.
That each parent shall contact the other, as soon as is practicable, in the event of any medical or other emergency concerning either of the children.
The father shall advise the mother of the names and contact details of the children’s family doctor and any other treating medical practitioner and the mother shall be at liberty to contact such medical practitioners to discuss the children’s state of health and treatment.
That each parent shall not say denigrating things about the other parent or any other member of their family to either of the children or within the hearing of the children or either of them.
That each party be restrained from presenting the children to the police except in the case of a genuine emergency.
Liberty to apply.
Pursuant to Section 65DA(2) and Section 62B of the Family Law Act, THE COURT DIRECTS the parties to note:-
(a)That the orders made continue in force until varied (though the Court may vary the orders by consent) and impose upon each of the parties:-
(i)an obligation to do all reasonable things to give effect to the orders; and
(ii)an obligation not to do anything (without lawful excuse) which would be in breach of the orders or would encourage others to breach the orders or to interfere with the exercise or performance of the powers, duties or responsibilities which a person may have under the orders.
(b)The contents of the document entitled “Parenting Orders – obligations, consequences and who can help Fact Sheet” which I now publish and hand a copy to each of the parties. This sets out:-
(i)the penalties which may apply, or other things which may occur, if you breach the orders made; and
(ii)details of who can assist parties to adjust to and comply with the orders made.

NOTATION: Order 3 is made by consent to alleviate concerns held by the mother that the father may move away from the Central Coast.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4540 of 2006

MS RATHBORNE

Applicant

And

MR RATHBORNE

Respondent

REASONS FOR JUDGMENT

These are proceedings for parenting orders relating to two young children, Z aged five and a half and J aged two and half.
The parties separated on 8 August 2006 when the father took the two children from the matrimonial home on the Sunshine Coast of Queensland and brought them to Sydney for a period of some three weeks.
The parties were married in April 2000. Z was born in 2002 and J in 2005. The parties lived in the Sydney area, where the father was employed as a tradesman, until February 2004 when they moved to rural southern New South Wales in order to reduce their living costs. Subsequently the parties moved from rural southern New South Wales to the Sunshine Coast. The parties were living on the Sunshine Coast when separation occurred.
Separation occurred on 8 August 2006, 24 hours after an argument between the parties when the father took the children to Sydney for three weeks to get them away from the mother and then returned to Queensland. The mother moved to Sydney to live, where she lived with her aunt and uncle and their three sons. Some few weeks after that, the father moved with the children to the north-eastern suburbs of Sydney where he lived with the two children in the maternal grandmother’s home. The father says he lived with the maternal grandmother but she would not allow the mother to live there. He said there were continual problems with the mother’s anger and he wanted to protect the children from that. The father, with the two children, remained living in the maternal grandmother’s home until January 2007, when he moved to reside firstly in shared accommodation in metropolitan Sydney and then to the Central Coast where he found accommodation which was cheaper than metropolitan Sydney. After the father left Queensland there were continuing disputes between the parties and in November 2006 the mother attempted to take Z from the father. He insisted on keeping Z and the mother punched him. She was charged with assaulting the father at her mother’s home on 20 November 2006. Ultimately, that charge was dismissed on 26 June 2007.
The two children lived principally with the father from the time of separation until 16 December 2006 when as a result of deception on the mother’s part, she took Z from his care and Z has remained living with her principally since that time. The children have remained separated in terms of their residence since December 2006, although consent orders were made on 18 January 2007 for J to live with the father and Z to live with the mother. The parties agreed the children should ideally live together but the untested evidence then available did not sufficiently favour one or the other parent for an interim determination to be made. Various consent orders and others have been made which result in the present orders for Z to live with the mother but have time with the father each alternate weekend from 3:00 pm Friday until 9:25 am Monday and for J to live with the father but spend time with the mother each alternate weekend from 1:00 pm Friday until 1:00 pm Monday and in the other weekend of a two week cycle, from 5:00 pm Sunday to 1:00 pm Monday.
Notwithstanding the consent orders which have been made at various times since Z began to live with the mother in December 2006, the parents, as I have indicated, are agreed that the orders to be made in these proceedings should provide for the children to live in the one household. The mother contends that the children should live with her at her mother’s home in the north-eastern suburbs of Sydney and spend time with the father each alternate weekend from 5:00 pm Friday until 8:30 am Monday and in the other weekend of a two week cycle, from 5:00 pm Friday until 5:00 pm Saturday. The father, for his part, proposes that both children should live with him on the Central Coast but spend time with the mother from Friday afternoon until Sunday evening each alternate weekend and for one day on the Central Coast in the other weekend of a two week cycle. The father expresses no preference about whether that one day is a Saturday or Sunday.
There is a Family Report prepared by Ms. G, which recommends that the children should live principally with the father and spend time with the mother each alternate weekend from Friday afternoon until Monday morning if that is possible and in the second week of a two week cycle for one day on the Central Coast.
Each of the parties has been represented and there is an independent children’s lawyer whose position was reserved until the conclusion of the evidence when counsel announced that the independent children’s lawyer supported orders which provided for the children to live principally with the father. Counsel for the independent children’s lawyer put forward a Short Minute of Proposed Orders, which became Exhibit “ICL 1”.

Short History

Ms Rathbourne (“the mother”) was born in April 1973 and is now 34 years of age. She lives with her mother, the maternal grandmother, in a north-eastern suburb of Sydney. She has not, since marriage, been employed but recently commenced working as a self employed franchisee of a cleaning company.
Mr Rathbourne (“the father’) was born in December 1972 and is now 34 years of age. He lives on the Central Coast of New South Wales. He is a tradesman by occupation but is presently in other employment for one day each week. He has not otherwise been in employment since he returned from Queensland with the children in October 2006.
The parties were married in April 2000 and separated in August 2006.
There are two children of the marriage. Z, born in April 2002 (“[Z]”) is aged five and a half years and is in Kindergarten at C Public School. The other child is J, born in April 2005 (“[J]”) who is aged two and a half years. J lives principally with the father and Z lives principally with the mother. J currently has been spending time with his mother each alternate weekend from 1:00 pm Friday to 1:00 pm Monday and in the second week of a two week cycle from 5:00 pm Sunday to 1:00 pm Monday. Z spends time with her father each alternate weekend from 3:00 pm Friday to 9:25 am Monday.

The Law to be Applied

The objects of Part VII of the Act are set out in Section 60B, which relevantly provides as follows:-

“60B(1) The objects of this Part are to ensure that the best interests of the children are met by:

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

protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(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).

Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, the Court must have regard to the best interests of the child as the paramount consideration. Section 60CC provides that in determining what is in the child’s best interests, the court must consider the matters set out in Section 60CC (2) and (3). Those subsections set out some fifteen matters which the Court must consider, some as Primary Considerations and others as Additional considerations. So far as relevant, I have considered those matters.
Further, Section 61DA provides that in determining which orders are in the child’s best interests the court must (unless there are reasonable grounds to believe a parent has engaged in abuse of the child or another child in the family group or has engaged in family violence) apply a presumption that it is in the child’s best interests for the parents to equally share parental responsibility. The parties agree in this case that there should be equally shared parental responsibility.
Additionally, Section 65DAA provides that if the Court proposes to make an order providing for equally shared parental responsibility (see Section 65DAC), the Court must consider whether it is reasonably practicable for the child to spend equal time with each parent and if so, whether it is in the child’s best interests to do so.
If the Court makes an order for equally shared parental responsibility but does not make an order for equal time with each parent, the Court must, in determining what is in the child’s best interests, consider whether it is reasonably practicable and in the child’s best interests for the child to spend “substantial and significant time” with each parent (Section 65DAA(2) and (3)).
In considering the issue of what is “reasonably practicable” the Court is required to consider the matters in Section 65DAA(5).

The Facts

At the time of marriage in April 2000, the parties were living in Sydney and the father was in stable employment as a tradesman. Z was born some two years after marriage and whilst living in Sydney, the parties had some difficulties. There was one incident in about March 2003 when the mother claims the father punched in one of the car windows causing glass to shatter in the direction of Z. The police and an ambulance were called by neighbours. The father disputes the mother’s version of that event and says that the mother was, in fact, distraught and he sought to open a car door to stop her backing out of the garage and in so doing, the door hit the garage wall and the glass broke. The mother in cross examination ultimately conceded that whatever else happened, she didn’t see any glass actually hit Z and she took Z to a hospital but there were no cuts or injuries of any sort. The police were called but no charges were laid. The mother, through her counsel, at trial asserted that the father was drunk but the father denies that. The mother’s evidence in her affidavit (at paragraph 17) makes no mention of the father being inebriated. The police report which was tendered as Exhibit “M4” indicates that the father appeared to be heavily intoxicated. The father’s response to that is that he had just driven home and had a couple of drinks but was not over the limit. He says the police knew that and he had not been breathalysed.
The evidence relating to the contents of the police report came relatively late in the trial after the mother’s evidence was completed. My observation of the father had been that he had been a truthful witness who was reasoned and reasonable in the evidence which he gave. The fact that in two instances, of which this was one, in which the father’s version of events varies from what appears to have been recorded in police reports has led me to have some doubts about the veracity of his evidence. However, the following matters have to be considered in relation to this incident:-
·The mother’s evidence in her affidavit made no mention of the father being inebriated.
·The father denies he was inebriated.
·It is not entirely clear whether the material in the police report is an observation actually made by the police officer himself or was reported to him by someone else.
·There is absolutely no evidence that the father suffered any injury to his hand and it is difficult to conceive of a man smashing a car window with his fist without some injury having occurred. The absence of injury is consistent with the father’s version.
·Although the father was cross examined to suggest that he was inebriated, the mother who gave evidence first, was not cross examined about the incident at all and the father’s solicitor, at that time, appears to have been unaware of the contents of the police report or the fact that an assertion was to be made by the mother’s counsel that the father was inebriated.

As I have earlier recorded, early in 2004, the parties moved to rural southern New South Wales to live where living costs would be cheaper and the father took up employment there. Whilst they were living in rural southern NSW, the child J was born in April 2005. The father’s business was not a success and the parties then moved to the Sunshine Coast.
Whilst they were living on the Sunshine Coast, the parties had their troubles and disagreements. The father claims that the mother was diagnosed as suffering from depression and was repeatedly angry, emotionally difficult and unable to cope with the children and he had to continually interrupt his working arrangements to assist her.
On about 7 December 2005, there was an altercation when the father says the mother tried to tear his mouth. He said she was quite violent. The matter was reported to the police but the report of the Queensland Police (Exhibit “M2”) records the complaint but records that “there was no complaint of physical violence or damage”. The report records that the father ultimately refused to sign a statement he had earlier given and so no action was taken.
This was the second incident which led me to review my impression of the father’s credit. The earlier incident to which I referred was recorded by the New South Wales Police and this later incident on 7 December 2005 was recorded by the Queensland Police. Again, it is not entirely clear what the source of information was for the material which is contained in the police report (Exhibit “M2”). It would appear that the father’s solicitor was not aware of the contents of the report at the time the mother gave evidence and it is noted that the Exhibit “M2” indicates that she also declined to provide a statement to the police. It is, however, difficult to understand why the father attended at the police station to report something which, in effect, was a non event, that is, to report an event when there was no physical violence or damage. It is difficult to understand why he would attend at the police station to report a mere argument. Nonetheless, it has caused me to be less confident about my earlier assessment about the father’s credit. I am, however, inclined to accept that the mother did attack and grip the father’s mouth as he asserts.
Ultimately, an argument erupted on 7 August 2006 when the father alleges the mother threw hot coffee on him in Z’s presence. The mother denies that and says that the coffee had been hot but had cooled down by the time she threw it and the father had exaggerated the event. What is clear, is that the father called the police. The Queensland Police report which was tendered as Exhibit “M3” indicates that the father was concerned to seek advice about what to do but that there was no injury. No charges were laid.
Ultimately, after the evidence was complete, and in circumstances where no questions had been addressed to the mother or the father about it, a document (Exhibit “F4”) being a report from the W Medical Centre in Queensland, was tendered, which established that on the day of this dispute on 7 August 2006, the mother had attended for a mental health assessment, as a consequence of which, she was diagnosed with major depression. The document recorded that the mother had been a recent user of cannabis. The documents indicated that the mother had major depression and was in need of respite from parenting. It is the fact, of course, that the mother in evidence simply asserted that the father had unreasonably taken off with the children from Queensland the following day, the 8^th August, without proper justification, whereas the father’s assertion, which, especially in the light of this document, I accept, is that he simply had to get the children away from the mother’s anger. As I have indicated, neither the mother nor the father were cross examined about the contents of that document (Exhibit “F4”) but it would appear that the mother may have since made little attempt to persist with the taking of medication which was prescribed. The document, Exhibit “F4” is also relevant to the mother’s credit in that she had earlier been asked about a document which indicated that there was a record of marijuana use by her that had been “whited out”. This document (Exhibit “F4”) would seem to suggest that shortly prior to this mental health assessment, the mother recently ceased using cannabis. The document also records that as a seven year old child, she had suffered a serious head injury in a motor vehicle accident resulting in her being in a coma for nine days on life support and in hospital for three months. There is no medical or other evidence about whether that injury has had any long term effect.
As I have recorded, the next day on 8 August 2006, the father left with the two children to come to Sydney. He remained with the children in Sydney for some few weeks and then returned to the Sunshine Coast and prepared for a final removal back to Sydney with the children. The mother left the Sunshine Coast to live in Sydney with her uncle and aunt and the father, about three weeks later, followed with the children and resided with the maternal grandmother in her home in north eastern Sydney area. The father said that the maternal grandmother did not want to have her daughter living in the home with the father and two children.
There were disputes between the parties about the amount of contact the mother should have with the children once they were settled in Sydney. The father said that in the period of time when they were living on the Sunshine Coast, the mother had been diagnosed with clinical depression and was taking medication. He was concerned about allowing her to spend time alone with the children and about her being able to look after J adequately. Nonetheless the mother was able to see the children nearly every day when she came to her mother’s place and even on some occasions had one or both of the children with her at her aunt and uncle’s place.
On 20 November 2006, there was a dispute between the mother and the father when the mother attempted to take Z out of the father’s arms. The father says that the mother punched him, resulting in the police being called and statements provided. The mother was charged with assault arising out of that incident. Ultimately, the charges were dismissed in June 2007 when the police determined not to further prosecute the charges.
There were no orders in place in relation to the children and in early December 2006, after obtaining professional advice, the father indicated that he proposed to take proceedings to obtain orders if agreement could not be reached.
On 16 December 2006, the father had arranged for he and the mother to go to a play centre with the children. The father allowed Z to go with the mother in her car and the mother, instead of going to the play centre as agreed, took Z off in another direction and hid her at her uncle’s home and refused to return Z to the father. Z has continued to reside principally with the mother since that time and the children have been living separately since that time. The father continued living with the maternal grandmother until January 2007 when the father moved from the maternal grandmother’s home to shared accommodation in metropolitan Sydney and then later in early February 2007, to the Central Coast. He has lived there with J since that time.
The dispute between the parties has continued and the matter first came before the Court On 18 January 2007 when consent orders were made and again in April 2007 when further consent orders were made extending the time for the non-resident parents to have time with the other child and to arrange changeovers in such a way as to avoid conflict between the parties if at all possible.
The matter came back before the Court in June 2007 when further orders were made to adjust the arrangements and for the parents to attend a post separation parenting course.
The mother was cross examined upon the contents of her affidavit filed 23 October 2007. Asked about her view, now expressed, that the children should live together, she said that is her present view and she changed her view on 18 January 2007 when she was in Court. She corrected that evidence immediately thereafter to say that she changed her view on about 16 December when she was able to have Z in her custody as a result of her deception of the father. Later she said that it has always been her view that the children should be together. She went on to say, more confusingly, that up until 16 December 2006 it was her view that it was okay for the children to spend their time together.
The mother agreed that on that occasion on 16 December when she had Z in her possession, she took Z to her aunt and uncle’s place and then returned home where she would be able to assist her mother who was not well. She agreed that the result of her conduct was that the children had been separated fro the period of 11 months since.
The mother agreed that the Family Report, at paragraph 27, recorded the family consultant’s view that it may be in the mother’s own interest to obtain a psychiatric or psychological assessment to assist her in the future. In response to that, the mother said that she had taken no steps to obtain any such assessment although she conceded that she had obtained some counselling and assistance from a herbalist in the period before she had moved to rural southern NSW but that the stress didn’t get any better. The mother said she had not sought any psychiatric or psychological assessment because it was too expensive but then agreed that she had attended the F Area Health Centre but had not continued going there.
The mother recorded in her affidavit material and in her evidence given orally, a litany of complaints about the father and of his capacity to care for the children. The mother said that one of her concerns was that J’s speech did not seem to have been developing properly and so she made arrangements for him to see a paediatrician. Her evidence, initially given, was that she had not seen a report of the results of that examination by the paediatrician and she hadn’t enquired of the General Practitioner as to whether a report had been received from the paediatrician. She complained also about his health and what she said was the father’s poor practice in terms of food which he provided for J. The parties had jointly attended the examination by the paediatrician Dr N and a report dated 10 July 2007 was subsequently tendered (Exhibit “M1”). It indicated it was the doctor’s view that J’s speech may be delayed four to six months but his overall health and development was normal. The father’s evidence was that at interview the paediatrician recommended they attend a speech pathologist and nominated one who would be appropriate.
The father, for his part, having regard to the views expressed by the doctor about J’s speech development and following the advice given to him by the paediatrician, arranged for J to see a speech pathologist, Ms B and the report from her dated 19 October 2007 was tendered in evidence as Exhibit “F1”. The report indicates that J’s speech development is at normal levels.
The approach of the two parties to this problem relating to J’s speech development provides a valuable tool for comparison of the parties’ respective parenting skills. It is apparent that the mother, having attended the paediatrician and having received advice that J’s speech development was delayed by four to six months with further advice that they should attend a nominated speech therapist, had not seen a written report from the paediatrician and had not pursued the General Practitioner to obtain one. Importantly, she had taken no steps to chase up the General Practitioner whom they had been attending or as the father had done, arranged to see a speech pathologist. The mother said the father had not told her about the appointment he made with the speech pathologist but the father denied that.
The father’s evidence was that he had attended on the consultation with the paediatrician, taken on board what she had said and made arrangements for the child to see the speech pathologist who had been recommended by the paediatrician. That speech pathologist, in her report Exhibit “F1”, expressed the view that J’s speech development was normal.
The mother’s actions in relation to this particular matter have led me to question whether she may not have some other problems because she seemed to have no recollection, at least at the time of giving evidence, of the substance of the advice given to both she and the father by the paediatrician.
The mother said she was very concerned because information which she was receiving from Z was that the father was actually living with his girlfriend by the name of Ms H and her three children. The father has denied that in his affidavit material and again repeatedly in cross examination. The mother said it is her major concern and initially said that she had been unable to raise the matter with the father. Later she conceded she had raised it with him and he had denied it.
The father was cross examined at great length about his relationship with Ms H. He said he had known her for many years, as had the mother, and he had run into her a few months ago. He says he sees her at day care and possibly for a couple of weekends a month with her three children, who are aged two and a half, five and eight years. He says she has come on occasion to his house at the weekend also.
The father said there was a period of some two weeks when Ms. H went on holidays and he looked after her three children for her during that time when he stayed at her house with her children and J and on one occasion for three nights with Z as well when she was with him. He agreed he used Ms. H’s large vehicle to transport the children because he could not fit them all in his vehicle.
The father steadfastly denied any relationship, as such, with Ms. H and agreed that she had been married to a friend of his. He said that Z would have been to Ms. H’s home maybe half a dozen times when they saw Ms. H and that Ms. H had come to his home on maybe three occasions when Z was there. He said he had never slept with her and had no plans for the future with her. Despite some difficulties with the father’s credit arising out of what seemed to be police reports which do not coincide with his version of events, I nonetheless have the view that the father was an honest witness. The suggestions made that he was in a relationship with Ms. H were steadfastly denied and there was no sign that his evidence was untrue. I accept his evidence on that and for the most part, other issues as well.
The mother was asked about a discharge summary from the Royal North Shore Hospital dated … April 2005, some few days after J’s birth. It was tendered as Exhibit “F2”. There is a portion of the report which has been “whited out”. The mother initially agreed that she had seen that in its original form and that the word “marijuana” had been there indicating that she had taking marijuana whist she was pregnant with J. She said it was whited out because it was wrong. Later, she said that she hadn’t seen it on the document before the “whiting out” took place but that she could read it through the “whiting out” material. This was one of a number of examples of the mother’s evidence which, in my view, was unsatisfactory and unreliable. Her evidence regularly changed with the need for explanation and in my view, has been quite unsatisfactory.
Importantly, the family consultant had commented in the Family Report that questions arose for her about the mother’s capacity to protect the children from her own negative views of the father. In that context, the mother was asked to think about it over the luncheon adjournment and after lunch to indicate any positive things that she could say about the father. After lunch, she said she was able to say that he was a good father and plays well with the children but there were no other positives that she could put forward. Questioned further about this, she agreed that in an affidavit containing 188 paragraphs she had not been able to say one thing about the father which was positive.
The mother was asked again about her failure to obtain any psychiatric or psychological assistance. Despite her denials that she was unable to obtain any medical assistance from any Area Health Services, she agreed that she had seen Doctor K who referred her to her the Y Mental Health Team. She said she didn’t follow his advice and go there. She initially denied that she had any contact with the Y Mental Health Team at all but then later said that she wasn’t sure, she may have rung them. She then changed her evidence again and said that she denied ever having spoken to them.
At one of the earlier appearances during the LAT process, the mother had firmly denied any suggestion that her mother drank at all. When the maternal grandmother was cross examined on her affidavit, she said that she denied drinking a four litre container of wine each week during the time that the father was living with her but said that she did consume during that time one or two glasses of wine each night. She said more recently she has not been drinking wine as she had been sick. She denied that the mother was presently her full time carer and denied that the mother had obtained any Centrelink payments in respect of her care in apparent contradiction of material contained in paragraph 170 to 175 of her affidavit.
The maternal grandmother said that she was unable to think of any good things about the father’s parenting and said that his problems in relation to J, in particular, were:
·That he had no money and owed a lot of people money.
·That J is a problem because he swears and uses bad language.
·He doesn’t give proper food so that J doesn’t eat properly.
·J was six months behind in his speech.
·The father doesn’t reprimand J when he should
She said that she was aware of the father’s debts because of mail which had arrived at her home addressed to him and which was opened because of rain. Ultimately when the father was asked about this, he said he had a credit card debt of some $11,000 dating back to the business he had conducted in rural southern NSW and was paying it off by arrangement with the creditor.
The father was asked about the time when he moved to the Central Coast and he said that because he had moved, he took on the responsibility for the next few months of doing all the travelling in both directions to arrange time with the children. He said the orders, which had been made on 18 January 2007 by consent, were altered on 19 March 2007 to provide for the mother to do some of the travel.
The father expanded on the circumstances in which he left with the children from the Sunshine Coast on 8 August 2006. He said he resigned his employment at that time so that he could look after the children and as a consequence of having no money, he asked the mother to sign over to him the children’s benefits, which she was receiving. He said that he had no real choice about leaving Queensland because there were a lot of problems and the children were scared about the mother’s anger.
The father said that it is important to him that the children should have a good relationship with the mother but he had had to give up work to have the time to look after the children because it was his view that the mother couldn’t look after them. He said that he had recently applied for part time work for one day a week on Wednesdays from 8:30 am to 4:40 pm and hoped that he may obtain some employment. He said, presently, he could only work one day a week when J is at day care.
Somewhat surprisingly, the father repeated what he had told the family consultant, that he had some hopes of reconciliation with the mother, notwithstanding the present absolute standoff where they are unable to talk to each other. He said that during the interviews for the Family Report, he and the mother has discussed with the family consultant, the prospects of reconciliation. He had difficulties understanding how reconciliation would work however, having regard to the fact that “[The mother] hasn’t taken her medication or got any treatment so I believe she hasn’t changed”.

The father denied that there was any difficulty with phone contact. He said that except when his phone was for some reason not charged, he always has his phone with him and he always answers calls and the children do speak to the mother regularly, notwithstanding her denials.
The father says that he presently receives a pension and family tax benefits totalling some $708 and more recently, has received a rental allowance of $120 per fortnight, making a total of $828 per fortnight or $414 per week. The father denied assertions that he had been a regular user of marijuana during the time that he lived with the maternal grandmother, that is, from October 2006 until January 2007. He said he had not smoked marijuana for 18 months to two years and that the maternal grandmother’s evidence about that was untrue.
The family consultant, Ms. G, who prepared the Family Report was cross examined upon the contents of the Report. In her written report, the family consultant recorded that the mother described the father as controlling, manipulative and verbally intimidating towards her. The mother claimed that she was frightened of the father. The mother vehemently denied any history or problematic behaviour by herself. The family consultant expressed the view that the mother’s complaint that she must now stand up to the father was inconsistent with her behaviour during the interview when she dominated the discussions. She said that the mother acknowledged some previous problems with depression but denied any current mental health problems although she had acknowledged some difficulties in comprehension. The family consultant recorded that the mother expressed concern about the upheaval to Z if she were to change schools.
During interview, the father told the family consultant that he was hoping to develop a more cooperative relationship with the mother, even including a possible reconciliation and said that his initial reason for separation was to allow the mother “to concentrate on her anger and depression”. The father complained that the mother had not followed recommended treatment for depression and insisted that there was nothing wrong with her. He described the mother as an angry person with a history of aggressive and angry behaviour towards himself and others. He spoke of two events when the mother tried to tear the side of his mouth and scald him with hot coffee. On another occasion he complained that the mother punched him in the spine. The father denied physical aggression by himself, except on one occasion which resulted in a broken windscreen when he had attempted to stop the mother leaving their home. He said he had lost a few jobs because he had to leave work to assist the mother looking after the children. He said he had a concern that the mother may have some residual brain damage as a result of her childhood accident. The father, during the LAT process, has repeatedly expressed that concern but the absence of support from the Legal Aid Office for the preparation of an independent expert’s report means it has not been possible to have any expert evidence about that issue.
The family consultant recorded that Z had expressed a preference for living with the mother and her brother but said that such an expression of wish was inconsistent with her interaction with the father, which indicated an equally warm and loving relationship. She recorded that Z had said she wanted the fighting between her parents to stop.
The family consultant said that both Z and J obviously love and are attached to both their parents and it is important for the children to spend time with the parent with whom they do not live. She concurred with the view expressed by each of the parents that the children should live together.
The family consultant expressed the view that due to J’s obviously strong attachment to his father and the length of time that he had now lived with the father and having regard to J’s tender age, that any major change in the time that he spends with his father would be likely to cause considerable distress for J. The family consultant indicated that such medical records as she had seen appeared to confirm some past concerns relating to depression in the mother. She said that the father presented as sincere rather than malicious or vindictive in regard to his concerns about the mother. Despite some reservations about his credit, that was also my view.
The family consultant, speaking of the mother, said that she presented with unrealistic expectations about the behaviour and development of the child, J, and the family consultant questioned the mother’s capacity to protect the children from her own negative views of the father. Her own observation was that the mother’s presentation was somewhat perplexing. She said the mother was very concrete in her thinking, leaving the family consultant with some questions about her cognitive capacity. She said that whilst she was not recommending a psychiatric or psychological assessment to assist with the Court decision, such an assessment might be something which the mother should consider for her own benefit.
The family consultant recommended that there should be equal shared parental responsibility but equal time is not suggested because of the young ages of the children and the family consultant’s concern about the mother’s parenting capacity as well as the geographical difficulties.
Ultimately the family consultant recommended that the children should live principally with the father but spend time with the mother each alternate weekend from Friday until Monday morning and in the other weekend of a two week cycle for one day on the Central Coast with school holiday times to be shared between the parents with no more than seven days with each parent in any one period.
Ms. G was cross examined at some length upon the contents of the Family Report. She confirmed that one of her recommendations was that if there was time during the week when the mother could spend time with the children on the Central Coast that would be advisable. She agreed however, that the mother had said to her that she would not be amenable to such an arrangement. The mother had confirmed that position during her oral evidence.
Ms. G agreed that the mother was nervous during the interview for the Family Report, as most people are. In answer to counsel for the mother, she said that Z was affectionate and appropriate in her interaction with the father and that such conduct might be an indicator that the mother was positive about the father.
Ms. G said that the children’s interaction with the two parents at their ages were very important in assessing the case. She said that J was markedly more demonstrable with the father and when distressed, he turned to the father for attention. He ran with delight to him. She said that J showed a marked preference for his father and if required to live with the mother as opposed to the father, it would cause J distress. She said ultimately he would overcome the distress but the question was whether he should be subjected to it.
Ms. G said that, in her observation, Z was not primarily attached to the mother. She said that Z verbally expressed a preference for the mother but in other activities she demonstrated an attachment which is about equal for the two parents. She said, by way of contrast, there was equal interaction with both children by the father. The father was able to meet the needs of both children and the difference between him and the mother in that circumstance was quite marked.
Ms. G was asked about the potential for difficulty arising out of the changing of residence and school for Z. She said changing residence will be a change for Z and cause her some stress. She said Z, however, has a greater capacity to cope with the change than J does at his age. She thought that at her age, not much weight could be attached to Z’s expressed wish as to the person with whom she would prefer to live.
Ms. G said that she had some concerns about the mother’s comprehension. She experienced the mother to be very black and white in her approach to things and that causes her to have some concerns about her comprehension. She said the mother’s presentation was beyond what you would see with depression. She said “I have concerns about her cognitive capacity”. She said that although she was not a psychologist or psychiatrist, she saw things which led her to be concerned about other matters than depression. She said the mother presented as extremely self absorbed and self focussed. During the interviews, she had to continually bring the mother back to focus on the children. The mother continually complained about the father during the interview.
Ms. G was asked about the police report of events which occurred on 14 March 2003, when the father was alleged to have smashed a window on the car with his fist. The police recorded that the father was intoxicated but the father denied that he was intoxicated. She said if those things had happened and the father had understated the position, that would be a matter for concern.
Ms. G was asked a second time about the children’s attachments and the effect on Z of changing residence and school. She said that Z would adjust quite well to being with the father but if the mother doesn’t manage the change, then Z may align herself with her mother and her relationship with both the father and the mother could be damaged. She said what she meant by saying “if the mother couldn’t manage” was that if the mother was unable to contain her distress and doesn’t protect the child from her emotions.
On the other hand, Ms. G said that if J was moved from his primary attachment figure (his father) he will suffer loss and grief. It would need the mother to manage the situation really carefully and she said she was concerned that the mother would not do that based on her observation of her. She said the fact that J would be returning to a familiar environment (the maternal grandmother’s home) would be a help but J is so young that it would be difficult for him.
Ms. G’s oral evidence, looked at in its totality, seemed to get stronger in favour of the children living primarily with the father. Her views, as ultimately expressed, seemed to be strongly in favour of the father being the resident parent.

The Section 60CC(2) and (3) Matters

The Primary Considerations

(a)The benefit to the child of having a meaningful relationship with both of the child’s parents.
It is, of course, important that the children have a good relationship with both parents. At the moment, each of the children have a good, loving relationship with each of the parents, though the intensity of that relationship may vary. The evidence, however, suggests that the mother is extraordinarily self focussed and so critical of the father that she may have difficulty in supporting the relationship of the children with the father to the extent that is appropriate.
(b)The need to protect the child from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no evidence that the mother has any serious psychological problems but it may be that when stressed, she has difficulty. The latest evidence available is from the mental health assessment which was made in Queensland on 7 August 2006, now nearly 18 months ago. There is no evidence that the children are at risk of physical or psychological harm.

Additional Considerations

(a)Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
No relevant views have been expressed by J. Z has expressed a preference to live with the mother but her physical exchanges are such as to cause the family consultant to form the view that Z is equally amenable to her parents. The extent of the weight which should be given to Z’s views at her tender age are, in any event, very limited.
(b)The nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child)

Each of the children have a good loving relationship with each of their parents.
There are no other relevant others, although it appears that the children have a relationship with the maternal grandmother which is satisfactory.
(c)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 (having regard to the matters spelt out in s.60CC(4)).
The father has demonstrated by both words and actions his willingness to support a close relationship between the mother and the children. The mother, for her part, has had difficulty in finding anything good to say about the father and probably will have some difficulty in supporting to the full a good relationship between he and the children. The father, has of course, removed the children from the Sydney area to the Central Coast area but had good reasons to do so in circumstances where the available funds were limited and he was able to obtain cheaper accommodation there. For some time he did all of the travelling associated with the children having contact with the mother and he has facilitated the arrangements for the children to continue to have contact with their mother.
(d)The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

If Z is ordered to live with the father, Z will probably suffer from stress in being separated from her mother and from the change of schools. It is expected she will cope without too much difficulty providing that the mother is supportive of Z in the process.
If J was required to live with the mother, the change and separation from the father could cause serious difficulties.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The father lives on the Central Coast and the mother lives with the maternal grandmother in Sydney’s north east. In geographical terms, they are separated by about 100 kilometres. This creates obvious difficulties but the parties are agreed that the children should live together and the end result is that it will not be easy whomever the children live with.
(f)The capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child

to provide for the needs of the child, including emotional and intellectual needs.
In my view, the father has a greater capacity to provide for the children’s needs. The mother loves the children and will do her best for them but the father, in my view, is likely to be able to cater for their needs in a more complete and child focussed way.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
There is nothing relevant.
(h)If the child is an Aboriginal Child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right.

There is nothing relevant.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (having regard to the matters spelt out in s.60CC(4)).
See sub paragraph (c).

(j)Any family violence involving the child or a member of the child’s family.
Incidents of violence or alleged violence have been dealt with in some detail in the judgment. The way in which they will impact on the family has been set out when dealing with those issues.
(k)Any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person.
There is no present family violence order.

(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
There is nothing relevant.
(m)Any other fact or circumstance that the court thinks is relevant.
There is nothing relevant.

The Resolution of the Issues

The parties are agreed that there should be equal shared parental responsibility and an order will be made to that effect.
Having determined that there will be an order made for equal shared parental responsibility, it should be recorded that it is not in the children’s best interests, in my view, for the children to spend equal time with each parent because of the need for the children to live together, to go to school and having regard, especially to the geographical difficulties, then the children should live principally with one parent of the other. Indeed, the parents agree that such is the case.
Because of school commitments for the children and the practical difficulties of travel, it will be necessary for the children’s time with the non resident parent to be at times when the children are not required to attend school. Presently, of course, J does not attend school but to the extent that it impacts upon the mother, the mother has indicated she does not wish to be involved in extra mid week contact with J if that is otherwise thought to be appropriate.
Mostly for the reasons set out in detail by the family reporter, whose evidence I accept and whose evidence has been very helpful, I have decided the children’s best interests will be served by the children living principally with the father and spending such time as can be arranged with the mother, having regard to the geographical difficulties. In the result, that means that in substance I accept the proposals put forward at the end of the trial by the independent children’s lawyer so that the children will live principally with the father but spend alternate weekends from 5 pm Friday until 5 pm Sunday with the mother and on other weekends on Saturday from 9 am until 5 pm. The intent will be that every second weekend contact on the Saturday should take place in the Central Coast area, not in Sydney.
It is, of course, the case that the parties agree that the children should live together and that is a decision which I support and which is sensible.
The Orders should take effect immediately. Given the timing of the delivery of judgment it may mean that Z will change residence some few days before the end of the school year. If that means that she may be otherwise unable to attend end of year functions which she would wish to attend, I hope it would be possible for the father to facilitate her attendance.

The Orders

That the parties have equal shared parental responsibility for the children of the marriage namely, Z born … April 2002 and J born … April 2005 (“the children”).
That the children live with the father.
That the father be restrained from moving his present residence a greater distance from Sydney than the area known as the “Central Coast of NSW” being that area bounded by Wyong Local Council and Gosford City Council without the consent of the mother and if she does not give consent, without obtaining an Order of the Court permitting him to do so.

That the parties shall keep each other advised of any changes to their residential address and their contact telephone numbers.
That the mother spend time with the children as follows:-

During School Term:

(a)On alternate weekends from 5.00 pm on Friday until 5.00 pm on Sundays or 5.00 pm on Mondays in the event that Monday is a public holiday or a pupil free day, the first occasion to be the first weekend of each school term;
(b)On other weekends, from 9.00 am on Saturday until 5.00 pm;

During School Holidays:

(c)For half of each of the term 1, 2 and 3 school holidays.
(d)From 9.00 am on Mondays until 6.00 pm on Sundays during the first full week of the December - January school holidays, thereafter on the third and fifth weeks of those school holidays.

Special Occasions:

(e)On the weekend of Mother’s Day each year from 9.00 am on Mother’s Day in the event that the children are not spending time with their mother pursuant to these Orders.
(f)At Christmas, in addition to the time referred to in these Orders, the children shall spend time with each of the parties as follows :-
(i)with the father from 12.00 midday on 24 December 2007 until 2.00 pm on Christmas Day and the children shall be with the mother from 2.00 pm Christmas Day until 5.00 pm on 26 December, thereafter in alternate years,
(ii)the children shall be with the mother from 12.00 midday on 24 December 2008 until 2.00 pm Christmas Day and with the father from 2.00 pm Christmas Day until 5.00 pm on 26 December 2008, thereafter in alternate years.

(g) At other times by agreement.

In the event that the mother resides within 20 kilometres of the father’s home, the times the mother spends with the children will be varied as follows:-
(a)Weekend time as described in Para 5 (a) herein shall commence at the conclusion of school on Fridays and conclude at the commencement of school on Monday mornings, and
(b)Other weekends as described in Para 5 (b) herein, the mother's time shall commence at the conclusion of school on Fridays and continue until 5.00pm on Saturday.
In the event that Father’s Day falls on a weekend when the children are with the mother for a full weekend pursuant to these Orders, the mother shall return the children to the father at 9.00 am on Father’s Day.
The mother may communicate with the children by telephone at the following times: On Tuesdays and Thursdays and Sundays from 4.00 pm until 6.30 pm and the father shall facilitate the children receiving these calls by ensuring that his telephone is switched on and otherwise able to receive the mother’s phone call; the father shall ensure that the children have adequate privacy for the purpose of these telephone calls.
When the children are with the mother for block periods pursuant to these Orders, the father shall have telephone communication with the children at the same times and at the same conditions as referred to above.
The father shall sign an authority at any school which the children may attend, within 7 days of enrolling the children at that school, to authorise the school to forward to the mother copies of school reports, school photograph applications, school newsletters and any other document ordinarily provided to parents.
The mother shall be at liberty to attend any sporting or other function in which the children shall participate and the mother shall be at liberty to make appropriate contact with the children’s school teachers.
That both parents shall use their best endeavours to be polite and civil to each other whenever they attend a function concerning the children or in the event that they come into contact with each other for the purpose of changeover of the children pursuant to these Orders. The parents shall otherwise use their best endeavours to be polite and civil to each other if they have any other contact relating to the children pursuant to these Orders.
That each parent shall contact the other, as soon as is practicable, in the event of any medical or other emergency concerning either of the children.
The father shall advise the mother of the names and contact details of the children’s family doctor and any other treating medical practitioner and the mother shall be at liberty to contact such medical practitioners to discuss the children’s state of health and treatment.
That each parent shall not say denigrating things about the other parent or any other member of their family to either of the children or within the hearing of the children or either of them.
That each party be restrained from presenting the children to the police except in the case of a genuine emergency.
Liberty to apply.
Pursuant to Section 65DA(2) and Section 62B of the Family Law Act, THE COURT DIRECTS the parties to note:-
(a)That the orders made continue in force until varied (though the Court may vary the orders by consent) and impose upon each of the parties:-
(i)an obligation to do all reasonable things to give effect to the orders; and
(ii)an obligation not to do anything (without lawful excuse) which would be in breach of the orders or would encourage others to breach the orders or to interfere with the exercise or performance of the powers, duties or responsibilities which a person may have under the orders.
(b)The contents of the document entitled “Parenting Orders – obligations, consequences and who can help Fact Sheet” which I now publish and hand a copy to each of the parties. This sets out:-
(i)the penalties which may apply, or other things which may occur, if you breach the orders made; and
(ii)details of who can assist parties to adjust to and comply with the orders made.

NOTATION: Order 3 is made by consent to alleviate concerns held by the mother that the father may move away from the Central Coast.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele

Associate

Date: 13 December 2007

[2007] FamCA 1440

13 December 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Injunction

Breach

Remedies