Reid and Sawyer

FAMILY COURT OF AUSTRALIA

REID & SAWYER

[2010] FamCA 809

FAMILY LAW – CHILDREN – two children – final hearing in 2006 – father appealed trial Judge’s orders and appeal dismissed in 2009 – extreme conflict between mother and father – one child has run away from the mother’s home – family violence – one child living primarily in the father’s care and spending some time with the mother – other child living with the mother and spending time with father, substantially under the arrangements of the 2006 final orders - violence by one of the children against the mother – Bond entered into by each parent

Family Law Act 1975 (Cth)

MRR v GR (2010) 263 ALR 368

APPLICANT:

Ms Reid

RESPONDENT:

Mr Sawyer

INDEPENDENT CHILDREN’S LAWYER:

Abrams Turner Whelan

FILE NUMBER:

SYC

1023

2007

DATE DELIVERED:

20 April 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

21-23 December 2009, 8 and 26 March 2010

REPRESENTATION

APPLICANT:

Ms Reid

RESPONDENT:

Mr Sawyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Wong

Orders

All prior parenting Orders are discharged.
The parties are to have joint parental responsibility for the children of the marriage provided that the mother have sole parental responsibility for matters relating to the health and education of G (“G”), born … February 1999 and J (“J”) born … February 2001, save for any urgent medical treatment that either of the two children may require whilst in the care of the father.
The mother shall, with respect to any major decision (other than one which she is obliged to take in the case of an emergency) in relation to the education or health of the children, consult with the father thereon and seek his contribution to the decision making. However, in the event that the parties are unable to reach agreement within 21 days (or such further time as is agreed) the mother may, pursuant to the responsibility vested in her by Order 2, make a decision notwithstanding that the parties have not agreed.
The parties have equal shared care of the children as follows:
(a) during each school term:
(i)the children shall live with the mother in Week 1 and each alternate week thereafter with the changeover to occur at the conclusion of school on Friday;
(ii)the children shall live with the father in Week 2 and each alternate week thereafter with the changeover to occur at the conclusion of school on Friday;
(b)for one half of each school holiday period with specific dates and times to be agreed, but failing agreement the first half with the mother and the second half with the father in years ending in an odd number and the first half with the father and the second half with the mother in years ending with an even number.
Notwithstanding the terms of any other Order herein the children shall spend time with the parent in whose care they are not otherwise in on each of the following occasions:
(a) on Christmas Day from 12.00 noon until Boxing Day at 12.00 noon;
(b)on each of the children’s birthdays with specific times to be agreed, but failing agreement from the conclusion of school until 6.30 pm, should the birthday fall on a school day and from 12.00 noon to 5.00 p.m., should the birthday fall on a non-school day;
(c)the children shall be with the mother on Mother’s Day from 9.00 am, until the commencement of school the following morning;
(d)the children shall be with the father on Father’s Day from 9.00 am, until the commencement of school the following morning.
Each of the parties shall take G to football training and football games unless G is unable to attend due to illness or injury, during periods that he is living with him or her.
Unless otherwise agreed by the mother, the father be and is hereby restrained from attending G’s football training or football games that occur on a weekday during periods that G is not living with or spending time with him pursuant to these Orders save for final and semi final matches.
Unless otherwise agreed by the father, the mother be and is hereby retrained from attending G’s football training or football games that occur on a weekday during periods that G is not living with her or spending time with her pursuant to these Orders save for final and semi final matches.
The father be and is hereby restrained from attending the children’s school except to collect or deliver the children at a time the children are to be collected or delivered pursuant to these Orders, on speech nights or for school carnivals or unless invited by the School Principal.
The father must deliver the children or child, such as the case may be, to the child’s school on the day the children are due to be collected by the mother pursuant to these Orders and the father be and is hereby restrained from attending at the child’s school or coming within a 500 metre radius of the child’s school on a day the children are due to be collected by the mother pursuant to these Orders except for the purpose of delivering them at the commencement of the school day.
In the event either child runs away from the mother’s care during periods the child or children are due to be in the mother’s care or living with the mother pursuant to these Orders then the father shall immediately notify the mother upon the child returning to his care and shall immediately return the child or children to the mother.
In the event either child runs away from the father’s care during periods the child or children are due to be in the father’s care or living with the father pursuant to these Orders then the mother shall immediately notify the father upon the child returning to her care and shall immediately return the child or children to the father.
The mother shall do all acts and things and sign all documents necessary to authorise any school the children are attending to provide the father with copies of all notices and invitations sent out by the school, the school newsletter, the children’s school reports, copies of any incident reports that may be made with respect to either of the children’s behaviour and any other correspondence or notices which the school would normally forward to parents of children attending that school.
Each party be and is hereby restrained from criticising or denigrating the other parent, the other parent’s family or any person the other parent is in a relationship with to or in the presence of the children and shall use their best endeavours to ensure that no other person criticise or denigrate the other parent, the other parent’s family or any person the other parent is in a relationship with to or in the presence of the children.
Pursuant to s65L of the Family Law Act 1975 (Cth) Mr L, Family Consultant, or in the event that he is unavailable, such other person as nominated by the Manager, Child Dispute Services of the Sydney Registry of this Court, give to any party to these Orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, these Orders for a period of 12 months from the date of these Orders.
Within 18 months of the date of these Orders each of the parties pay one half of the Independent Children’s Lawyer’s costs of these proceedings, assessed in the sum of $8,134.23 each.

THE COURT NOTES that the parties continue until 23 December 2011 to be bound by the terms of the Bond which each of them entered into to secure the compliance and observance of the orders made by the Court.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1023 of 2007

MS REID

Applicant

And

MR SAWYER

Respondent

And

Abrams Turner Whelan

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are parenting proceedings between highly conflicted parents who have had an unenviable history of litigation between them, or about them, in the Family Court, Federal Magistrates Court and the Local Court.
Proceedings were heard on a final basis in July 2006 in the Family Court and judgment was delivered in November 2006. The father appealed the orders made at first instance, and which Appeal was heard and dismissed by the Full Court of the Family Court of Australia.
The storm of conflict surrounding the two children of the marriage, G born in February 1999 and currently 11 years of age and J born in February 2001 and currently 9 years of age (“the children”) has continued largely unabated in the proceedings before the Court.
The eldest child, who had been placed with the mother, has run away from the mother’s residence to the father’s residence on a number of occasions over the last two years in pursuit of the father’s assistance to what the father sees is a likely career for the child as a professional soccer player. There is support for the proposition put by the father that the child is highly gifted as a player and would be one of the best players of his age in Australia and that soccer is that child’s “passion”.
The father, who it is said has a strong influence over the child, is said to have largely ignored orders previously made and encouraged the child to believe that the child’s conduct in ignoring them has also been accepted by the father as appropriate conduct.
The mother, amongst other concerns, expresses concern for the child’s safety when involved in running away and has endeavoured to enforce discipline and compliance with the orders by de-registering the child as a soccer player. This action was reflected upon by the mother and reversed and thereafter the relationship between the child and the mother improved somewhat.
Another problem, however, is that the youngest child, believing that his father had abandoned him in his affections because of his obsession and passion with the eldest child’s prowess as a soccer player, commenced acting out in forms of misconduct.
The father, with a lack of insight into the needs of both his children, proposes that the differential treatment of them be perpetuated by a process of G, the eldest child, living with him more often than the youngest child, J.
Although this will involve the father treating the children differently, he says it will enable him to support his son G in the passion he has for the game of soccer, a passion not shared to the same degree by the mother. He says that with J developing skills in playing the guitar and shortly going to join a soccer club, he will in due course perhaps spend more time with him.
The mother’s view is that such an arrangement is continuing a situation which has brought distress to the child J.
The mother says the conflict between the parents and the lack of insight and dallying of the father in coming to the table with responses to her proposals for agreement requires for the future a “circuit breaking procedure”. The mother proposed that she have sole parental responsibility with the children living with the parents in a “week about” arrangement.
She says she is prepared to consult with the father and discuss matters with him and attend for assistance to reach agreement in major matters, but requires a modus vivendi, which will enable her to deal with any impasse in such discussions promptly and not leave a child wallowing in a mire of indecision.
She says also that she will, in her care of the child G, reasonably support his soccer training, but not to the detriment of his education.
G is shortly to commence secondary education and the suggestion that he will participate in soccer training four days a week until up to 8.30 pm is one that the mother does not perceive as possible, having regard to the demands of his secondary education.
The father’s assertion is that the child is bright and that he can accommodate the pursuit of a professional soccer playing career without detriment to his education.
The Independent Children’s Lawyer proposes a solution which gives to the mother certain decision-making powers in the absence of conflict, but otherwise proposes that the children live with the parents on an equal shared time basis.
The Court during the hearing and with the agreement of the parties, required each of them to each enter into a Bond in the sum of $5,000 each for the due performance and observance of the orders the Court.
The Independent Children’s Lawyer seeks an alternative sanction for breach of the order, namely that if the father does not comply with the order, that additionally the order will change in a self-executing way to require the children to live with the mother and spend such time with the father as the mother and the father agree. The Independent Children’s Lawyer suggests that this may ensure a higher degree of compliance with the orders than has been the history of this matter and reduce the likelihood of further proceedings.
The question in these circumstances before the Court are what are the orders which best serve the interests of these children and are more likely to have the effect of reducing conflict and ensuring compliance with orders.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
A chronology was prepared by the Independent Children’s Lawyer and which is herein incorporated.
In 1955 the father was born and is currently aged 54 years of age.
In 1965 the mother was born and is currently 45 years of age.
In September 1994 the parties commenced cohabitation.
In 1996 the parties were married.
In February 1999 G was born and is currently 11 years of age.
In February 2001 J was born and is currently 9 years of age.
In August 2005 the parties separated on a final basis.
On 7 September 2005 the mother filed an Application in the Sydney Registry, Family Court of Australia seeking Final Orders in relation to parenting.
On 5 October 2005 the father filed a Response to an Application for Final Orders.
On 9 December 2005 the mother filed an Amended Application for Final Orders.
On 13 December 2005 interim orders were made, in summary that the children live with the father on alternate weekends during school terms, from the conclusion of school on a Thursday until the commencement of school the following Tuesday. The children were to otherwise live with the mother. Injunctive orders and orders with respect to Christmas school holiday periods were also made.
On 16 February 2006 the matter was before Justice Rose for the first day of the Children’s Cases Program and an order was made for the preparation of a Family Report.
On 15 March 2006 the offence of assault was proven against the father in the Local Court. The father was ordered to enter into a bond and mutual Apprehended Violence Orders (“AVO’s”) were made “without admissions”.
On 16 March 2006 a Family Report was completed by the Family Consultant, Mr L, and released.
On 6, 7 and 10 July 2006 the matter proceeded to final hearing before Justice Rose.
On 15 November 2006 judgment was delivered in this matter by Justice Rose. Final orders were made that the children live with the mother, and that the mother have sole parental responsibility for decisions with respect to health and education, save for urgent medical treatment which the children may require whilst in the care of the father. The children were to spend time and communicate with the father, in summary, each alternate weekend from the conclusion of school on Friday to the commencement of school the following Monday, each alternate Wednesday night from the conclusion of school on Wednesday to the commencement of school on Thursday. Orders were made that the children have telephone communication with the father on Saturday and Wednesday evenings, Father’s Day, birthdays and half school holidays on a seven day “week about” cycle. Further ancillary and special issues orders were also made.
On 13 December 2006 the father lodged a Notice of Appeal in the Full Court of the Family Court of Australia, appealing the Orders of Justice Rose.
In late 2006/early 2007 the children commenced counselling with

Dr C, Child and Adolescent Psychiatrist at the local Community Health Centre.
On 14 February 2007 the father filed an Application for Contravention in the Family Court of Australia and filed an affidavit in support. The father alleged, inter alia, the mother failed to deliver the children to the father on Christmas Day 2006 and failed to provide a telephone number for the children during a week in January 2007 to allow the children to have telephone communication with the father during the holidays. It was further alleged the mother failed to deliver the children to the father at the appropriate time on 18 January 2007 and failed to make the children available for telephone communication on 10 February 2007.
On 12 March 2008 the father filed an Application in a Case in the Federal Magistrates Court and affidavit in support seeking orders, inter alia, that he have responsibility for the sports development of the children, that G be allowed to attend football training, and an alteration of the arrangements for the April 2008 school holidays to allow G to attend a football camp and other ancillary orders.
On 28 April 2008 the mother filed an Application for Contravention in the Family Court at Sydney, alleging multiple contraventions of the Orders, inter alia, including the father is attending the school on occasions other than allowed pursuant to the Orders, breach of the non-denigration order, failure to deliver the children in accordance with the Orders, failure to make the children available for collection at the time specified in the Orders, encouraging the children to run away to his home and failing to return them.
On 5 May 2008 the mother filed an Application for Contravention in the Federal Magistrates Court alleging, inter alia, that the father moved the child from a sporting camp during the mother’s contact time, making regular contact during the mother’s contact time and that the father denigrated the mother in the presence of the children.
On 8 May 2008 the Independent Children’s Lawyer received an email from the mother advising of the parties’ Applications in the Federal Magistrates Court and advising that all Applications were listed for hearing on 23 May 2008.
On 23 May 2008 the Independent Children’s Lawyer attended the Federal Magistrates Court and was advised by the Associate to Federal Magistrate Altobelli that the matter had been in the list the previous week for the return of subpoena and that all outstanding Applications had been adjourned to

24 September 2008 at 10.00 am for final hearing.
On 28 July 2008 the Independent Children’s Lawyer received a letter from the mother advising the mother had been served with Contravention Applications filed by the father on 11 May 2007, 21 September 2007, 9 November 2007 and 12 March 2008.
On 30 July 2008 the Independent Children’s Lawyer wrote to the father advising that the only Application served on the Independent Children’s Lawyer was an Application filed 12 March 2008, and requested copies of other Contravention Applications and affidavits filed by the father. A copy of an Application for Contravention and an affidavit filed 14 February 2007 were subsequently received.
On 15 August 2008 the matter was relisted before Federal Magistrate Altobelli, on the mother’s Application in which she sought to adjourn all Applications until the conclusion of the father’s Appeal. His Honour vacated the hearing on 24 September 2008 and adjourned the matter for mention on 27 November 2008, with liberty to restore the matter to the list upon seven days’ notice.
On 1 September 2008 the father’s Appeal was heard in the Full Court of the Family Court of Australia and judgment was reserved.
In late 2008 the mother alleged G was engaging in a pattern of running away following spending time with the father on a Wednesday and after soccer practice.

On 27 November 2008 the parties’ Applications in the Federal Magistrates Court were adjourned to 28 April 2009 and the matter was stood over pending receipt of the Judgment of the Full Court. Leave was given to the parties or the Independent Children’s Lawyer to relist the matter on seven days’ notice.
On 8 December 2008 the father filed an Application for an Apprehended Violence Order (“AVO”) against the mother in the Local Court, and which was returnable on 6 January 2009.
On 6 January 2009 the father attended the Local Court for an AVO matter with the children. The matter was adjourned to 19 February 2009.
In January 2009 the father’s Appeal against the two convictions for common assault was dismissed in the District Court. The fines which were previously imposed were quashed and the father was placed on two year Good Behaviour Bonds dating from 28 January 2009 and to expire on 27 January 2010.
On 11 February 2009 G was physically violent towards the mother, and ran away to the father’s residence. G subsequently did not attend school on 12, 13, 19, 20, 23, 24, 25, 26 and 27 February 2009. G was also partially absent from school on 16 and 17 February 2009.
On 19 February 2009 the father attended the Local Court with G for the AVO matter and sought to have G appear as a witness. The father sought to vary the AVO Application to include the children as protected persons.
On 26 February 2009 the mother filed an Application in a Case and an affidavit seeking, inter alia, to vary orders made by Justice Rose.
On 4 March 2009 an interim hearing took place before Federal Magistrate Altobelli.
On 5 March 2009 the father filed an Application in a Case and an affidavit.
On 6 March 2009 a further interim hearing took place before Federal Magistrate Altobelli. A judgment was delivered and orders were made restraining the father from doing anything to involve the child, G, in any proceedings in any Court against any person in the child’s family. Orders were also made that the proceedings be transferred to the Family Court of Australia.
On 10 March 2009 a judgment of the Full Court of the Family Court of Australia was delivered, dismissing the father’s Appeal.
On 18 March 2009 the first listing of the matter in the Family Court of Australia took place before Registrar Campbell.
On 27 March 2009 the mother filed an Initiating Application.
On 6 April 2009 an AVO was made in the Local Court against the father for the protection of the mother’s partner, GW.
On 25 June 2009 the matter was listed before me in the Family Court of Australia. The father filed an Application in a Case seeking to discharge

Ms Gathercole continuing in her role as the Independent Children’s Lawyer.
On 9 July 2009 an ex tempore judgment was delivered confirming and continuing the appointment of Ms Gathercole as Independent Children’s Lawyer, and dismissing the father’s Application in a Case filed 25 June 2009.
In July 2009 the father was found guilty of a breach of the AVO of

6 April 2009.
In September 2009 the father was found guilty of a second breach of AVO of 6 April 2009.
In September 2009 the father’s appeal against the AVO of 6 April 2009 was dismissed in the District Court.
On 3 November 2009 the matter was fixed for a final three day hearing commencing Monday, 21 December 2009. It was directed that a Family Report be prepared and further directions were made for the filing of affidavits by the parties.
On 11 December 2009 a Family Report of Mr L was released to the parties and their lawyers.
On 23 December 2009 the father and mother each entered into a Bond under s60NM of the Family Law Act 1975 (“the Act”), that for a period of

24 months the father and mother be of good behaviour and comply with all orders of the Court and that in the event either party are found to have failed to comply with the terms of the Bond that party pay the sum of $5,000.
On 23 December 2009 the matter was adjourned part heard to 8 March 2010, on which date the hearing concluded.
In Term 3 2009 the parties trialled a mediated agreement that departed from the Orders of Justice Rose, particularly as they related to G. G was living primarily in the care of the father, and spending some time with the mother, whilst arrangements in relation to J continued substantially as per the Orders of Justice Rose. J’s behaviour at school was said to be problematic.
In Term 4 2009 the mother said that the mediated arrangements were not working and sought to revert to the Orders of Justice Rose. However, G remained living with the father and regularly refused to spend time with the mother or was not made available to spend time with her. J’s behaviour at school deteriorated further, leading to him being suspended from school on 26 and 27 October 2009.
It was announced at the commencement of the hearing on 8 March 2010 that the parties had, since the prior hearing, come to an interim arrangement for the shared care of the children with the children being involved in rotations; in the case of G for nine days with the father and then five days with the mother and the reverse position being agreed for the child J. It had worked to a degree but not without difficulty and the mother said that the experience confirmed her view that the arrangement she had put to the Court for the parties to have the care of the children in the alternate weeks was better for the children. The father took the view that it confirmed that the arrangement he proposed was demonstrated by experience to be better for the children.

The Issues

The issues for determination are:
a)Whether the parties should exercise parental responsibility jointly or whether the mother should have sole parental responsibility or sole parental responsibility as to certain matters or whether the father should have sole parental responsibility with respect to other matters, namely G’s soccer training, playing and associated activities;
b)What periods of time in a fortnightly rotation the children spend with each of their parents; and
c)What orders should be made to support the Court’s orders and encourage compliance with them.

The Evidence

The hearing occupied five days. The mother gave evidence orally and by affidavit and was cross-examined by the father and the Independent Children’s Lawyer.
The father gave evidence orally and by affidavit and was cross-examined by the mother and the Independent Children’s Lawyer. The father, in addition, called G’s soccer coach to testify to certain matters, including the child’s talent as a soccer player.
The Independent Children’s Lawyer called the Family Consultant to give evidence. The Family Consultant gave documentary and oral evidence and was cross-examined by the father and the mother.
The Family Consultant provided two documents for the Court’s assistance. The first was a Children and Parents Issues Assessment dated 24 June 2009, and the second was a Family Report dated 11 December 2009. A previous Family Report was prepared on 15 March 2006 by the same Family Consultant, Mr L. In the December 2009 Family Report it was said that the Report should be read in conjunction with the 2006 Report and the Issues Assessment. The Family Consultant gave oral evidence in relation to meetings he had had with the parties prior to the hearing.
The gravamen of the 2009 Family Report was that shortly before the preparation of that Report, the parents had lived within a few minutes of each other but that the mother had moved recently to a home in a different suburb, some 15 minutes away. The relationship between the parents was chronically conflicted and significant problems had emerged between the mother and the father, the father and the child J and the mother and the child G and also between the children, G and J.
The arrangements at that time were that the children were to live with the mother and were to spend time with the father on each alternate weekend, from Friday to Monday and on each alternate Wednesday night. Those orders had been largely complied with with respect to J, but since March 2009 G had lived primarily with the father, in breach of the Court’s orders. A pattern had emerged that G would briefly visit his mother’s home and then return to his father’s home without his mother’s consent.
The abovementioned conduct had ceased since the movement by the mother to a new residence at some distance which made the transition more difficult for the child. This enabled the child to be with his mother and brother at least for weekends.
The father, at the time of the Report, requested that the children live with him and spend time with the mother, but with J spending more time with the mother than G.
In her Parenting Questionnaire the mother said she proposed that the children live with her and spend time with their father each alternate weekend. However, she was at the meeting with the Family Consultant, ready to consider that the children spend equal time with each parent. This is an arrangement which was sought by her in her final address.
The father’s position was that the children had suffered in the care of the mother, whom he described as a person “unable to identify the children’s true needs”. He described the mother as an abusive and disinterested parent. On the whole of the evidence I reject that description of the mother as being accurate.
The mother says that the father has been driven by a hatred of her and has relentlessly and ruthlessly undermined her relationship with G and would do so also in relation to J. She noted that G’s attitude softens when he is with her for prolonged periods of time.
There have been problems with J’s behaviour and the mother thought they had been caused by his deteriorating relationship with G. The mother contended that J has felt overshadowed and “pushed around” by the father and has a sense that he no longer belongs in his father’s home. The mother said J was also worried about her.
In relation to the children, the Family Consultant said that conflict between parents can lead to children feeling confused and stressed, because what is considered to be loveable, moral and competent parenting in one parent’s household can be considered bad, incompetent and unacceptable in the other parent’s household. In situations where there are highly conflicted parents the child’s inner tensions are commonly resolved by choosing one parent over the other.
The Family Consultant went on to say that sibling relationships in middle childhood provide an important context for learning conflict resolution skills. Where the parents are highly conflicted and pressure to align with one parent or the other is intense, then normal sibling competitiveness can degenerate into more serious and enduring sibling conflicts, as a result of which one or both siblings might be left with a sense of failure and compromised self-esteem.
The child G saw himself as primarily belonging to his father’s camp and shares some of his father’s beliefs and attitudes about his mother, although the Family Consultant says that he is not yet alienated from her. His non-verbal responses indicated continuing affection and he conceded that he enjoyed time with her. He also saw her as being sad but said she should not be “because she has [J]”. G was, in the earlier Issues Assessment said to feel sad about not seeing his brother as much as he would like to. He said particularly that whenever he was with his father J should be there and whenever he was with his mother J should be there too.
G expressed to the Consultant a desire to live with his father because his father is a more actively engaged and enthusiastic parent and because “there are more rules at Mum’s house”.
The mother was concerned that G, as a result of the father’s encouragement and intimidation, appeared to be developing a propensity when it suited him to disregard and disrespect rules and authority, including the police and the law. It was, she said, that out of this perception and out of a sense of powerlessness and frustration, that she had attempted to teach G to take a more responsible position by withdrawing his soccer registration. However, this appeared to have escalated the tension between the child and the mother and she subsequently reinstated that registration.
The child, J, appeared to the Family Consultant to be preoccupied and unhappy. The child had previously been interviewed by the Family Consultant in July 2009 at which time he spoke of enjoyable activities he had undertaken in the household of each of his parents and expressed sadness at the absence from his life of his father and his brother. On this occasion, however, he identified himself as more clearly belonging to his mother’s household and had reservations as to whether he was truly accepted in his father’s household, because it appeared to the child that G had ‘won’ the battle for his father’s affection and attention. The child was musing as to whether he was like the ‘good parent’ (at that time his mother) or the ‘bad parent’ (at that time his father).
J had been seeing a therapist, who reported to the Family Consultant that J’s ‘acting out’ behaviours are a function of family stress, rather than clinical disorder. The therapy he was then undergoing was to improve his self-esteem.
The Family Consultant makes the evaluation that the children have, largely due to the intensity of their parent’s conflict, not been able to take on the normal developmental tasks of middle childhood in a flexible and exploratory manner. Furthermore, what is seen by the children as good in the household of one parent is seen as bad in the household of the other.
G has responded to the conflict by aligning himself with his father and assuming (at least with his passive encouragement) his father’s perspectives in relation to his mother. In order to do this he has had to detach from his mother emotionally. Yet the Family Consultant says there are signs that the child is not yet completely alienated from the mother and in oral evidence spoke of the difference between the verbal and non-verbal expressions of the child in relation to his mother. The Family Consultant says that at the time of the Report the relationship was retrievable and his capacity to be an active player in his parent’s conflict has been reduced because the parties are longer than easy running away distance. This, the father says, will only be a temporary setback for the child if he determines to run away again.
G’s responses to the conflict are not however wholly due to the effects of being the focus of intense inter parental conflict. He is an academically and athletically gifted child. Those gifts have been enthusiastically (the mother would say obsessively and exploitatively) valued and encouraged by his father, which has developed his affinity with his father. G does not perceive those gifts, particularly as a soccer player, as being unconditionally valued by his mother.
From her conversation with the Family Consultant and indeed in evidence, the mother acknowledged the child’s gifts as a soccer player and said that she did support him, but that she said that soccer should not be an all encompassing and all consuming passion. She noted that with the requirements of high school approaching she had concerns that the child could not place appropriate importance on his education, given the time demands the father said that he should give to soccer, which involved in his view, training four evenings per week as well as playing on Saturday. The mother took the view that a career as a soccer player can easily be terminated and an education of a high standard would be required for the future for the child, whatever his successes or failures in that sport.
The Family Consultant suggests that perhaps the fact that G’s soccer playing has been the central focus of the parental conflict that G perceives the mother’s pride in his achievements as equivocal.
Although G identified two ‘camps’, and identified himself as belonging to his father’s ‘camp’ and had distanced himself emotionally from his brother, his natural affection for his brother still surfaced in indirect ways and is not yet beyond repair.
J’s bad behaviours at school are probably an indirect expression of his confusion and sense of loss in relation to his father and his brother and his worries about his mother, the Family Consultant reports. In the storm of conflict there appears to be no safe harbour for him. In a mirror image of his brother he feels valued in his mother’s household and not his father’s and G’s household. J also feels, wrongly it seems, that G is more important to his father than he is. The father says, and I accept, that J is important to him and I think that these proceedings have at least reinforced the importance of this being clearly conveyed to J.
The recommendations of the Family Consultant set out in the Report includes a suggestion that any refigured parenting arrangement should allow the opportunity for the child G to repair his relationship with his mother and J and to allow J to repair his relationship with his father and G. Any such arrangements should minimise the opportunity for the parents to act out their mutual antagonism.
Having said that, the Family Consultant recognised the difficulty of meeting the criteria. If the children resided mainly with their mother, the opportunities for J’s relationship with his father to be repaired would be limited. If the reverse situation were the case then the opportunities for the child G to repair his relationship with his mother would also be limited.
He took the view that in the special circumstances of this case, orders which provided equal time with each parent would serve the special needs of these children.
In the 2009 Family Report the Family Consultant considered that:
[a]n equal time arrangement might signal to the boys that they are in fact equal in the eyes of their parents and afford each parent the opportunity to be actively involved in their lives across the spectrum of key developmental activities. An equal time arrangement might also limit the boys’ exposure to the more visible aspects of their parents’ conflicted relationship if it allows for the parents to not to [be] in each others presence.
The Family Consultant proposed the development of a detailed parenting plan dealing with the management of aspects of key areas of the children’s lives.
Following the making of that Report the Family Consultant again interviewed the parties prior to giving oral evidence. At that time an interim arrangement had been made for G to live with his father for nine out of fourteen nights and to live with his mother for five out of fourteen nights. The reverse of that arrangement was to be undertaken for J.
Although that arrangement according to the evidence was working, the mother in her submission said that it was not ideal for the children and said that she had agreed to it to provide a smooth pathway for the scholarship exams which G was about to undertake. However, she said that the experience, in her view, had supported the idea of blocks of time on a ‘week about’ basis with both children being together and the abandonment of mid week handovers. It was her submission that such a changeover for the children should occur on a Friday evening after school.
The mother pointed out that the soccer training regime meant that for three of the nights that G was with her he was involved in three hours of training, including travel.
The father saw the experience of the interim orders as supportive of his contentions. He said that it showed that communication and agreement between the parties was possible.
The Family Consultant said there was ongoing disagreement about the exercise of parental responsibility. Although the parties had come to an interim arrangement and some agreement about potential secondary school opportunities and scholarships for G, there was expressed doubt as to whether that co-operation could be demonstrated across other domains of disagreement.

The Family Consultant noted that the mother reported G was now verbalising his expressions of love for his mother. The father’s concern for the involvement of the mother’s partner, Mr GW, in the mother’s life was something he said that both parents had to work on. The mother saw it as a reflection of the father’s attitude to Mr GW. It was, the Family Consultant said, unrealistic for anyone to expect the mother should sacrifice that relationship absent proven abuse. I respectfully agree. The father continues unfortunately in his attitude that the boys should have no relationship with Mr GW, however he has to overcome his dislike of the relationship of the mother with Mr GW if he in reality wants to advance the interests of his children.
The father told the Family Consultant that he wanted the whole matter dealt with by mediation. The fact is, in my view, that the father is not temperamentally adjusted to that process. There appears to him, it seems, to be two views, namely his view and the wrong view. He has been rude to therapists and doctors who have attended his children and who do not agree with his view.
The Family Consultant had little to say in support of a pursuit of a present solution by mediation and said that adjudication was required. The Consultant however proposed, and I agree, that in these proceedings an order should be made pursuant to section 65L of the Act.
Having been cross-examined at length following the making of the Family Report the Family Consultant did not significantly depart from either the evaluations and facts set out in the Report or its recommendations.
Since the completion of the 2009 Family Report, as indicated elsewhere, the parties have come to an agreement on the issue of the options for G’s schooling and his preparation for secondary scholarships exams. There has been no attempt beyond that to develop a parenting plan. I will afford the parties the opportunity to do so in the orders I will make. Their measure of success in achieving that will be a measure of their capacity (having had the benefit of the experience of litigation which must have been costly in time, money and emotion) and the insights into their children’s behaviour provided by the Family Consultant, to have a last chance to benefit their children and keep them safe from psychological harm by co-operatively parenting them.
It is yet to be seen whether what has been described as this ‘green shoot’ of accord grows into an harmonious and productive plant. The Family Consultant expressed difficulty in relation to making a recommendation on the issue of parental responsibility. On the one hand, if it were devolved to one parent or the other that raises the possibility of parental resentment and further litigation, but for these parties shared parental responsibility carries with it extraordinary difficulties.
The Family Consultant observed the father had, at times, been dismissive and contemptuous of the mother’s parenting ability. However, he noted the allegation of the father that this was an incorrect assessment and the statements which gave rise to it were an attempt at humour. In any event, the Family Consultant said that the important part of shared parental responsibility was communication, discussion and agreement.
The Family Consultant said that the mother’s indication that she would consult with the father meant that she would involve him in the decision making process at least. He accepted that a ‘circuit breaker’, such as that contained in the order made by Justice Rose, might work as a means which allowed decision-making on important issues in relation to the children. He did observe that one was caught between the alternatives of avoiding resentment on the part of the father and leaving the children suffering the torpor of a climate of indecision. His observation was that it was a fine balance and that there was no clear-cut answer to the problems. A guarantee of consultation would alleviate some of the problem and make it less of an issue.
In his evidence he said that the issue which had arisen in relation to G’s soccer did not amount to one parent being against it and one for it. Rather the Family Consultant said:
I think it’s rather more subtle than that. I think it’s to do with both parents wanting him to do well at what he’s good at and to be encouraged to do well at what he’s good at, and I think from [the mother’s] point of view it’s the imbalance that is the issue, rather than the rightness or wrongness of it, and she would feel that an intense preoccupation with one area of his life over another is disproportionate and likely to cause some tension.
The Family Consultant pointed however to the fact that for some time G was attending his soccer commitments whether in his mother’s household or his father’s household and this had happened notwithstanding the issues that surround it, including J’s reaction to it and the amount of time it involves.
Under cross-examination from the mother, the Family Consultant conceded that the mother had agreed to the interim arrangement for the parenting of the children because she was considerate of the pressure that an absence of agreement would put particularly on the child G, and not because she thought the arrangement was otherwise desirable.
The Family Consultant further conceded that the mother had acted on advice in relation to her accommodation of the loss of her relationship with G by reason of the many of hundreds of nights that G, in contravention of orders, resided with the father and that it was for the benefit of the child.
He went on to say that the mother had:
… demonstrated what I think is to be one of the most important aspects of parenting, and that’s the capacity to reflect, to weigh up options and to sometimes give up other inclinations and compromise, and that is described by me, and it’s a word I don’t use lightly, as one of the most important aspects of parenting is the capacity to reflect, because none of us get it all right all of the time and it’s an ongoing puzzle as children grow and develop to be able to think about what’s happening, weigh up the options, especially in situations where there has been conflict.
The Family Consultant thought that capacity was demonstrated to a lesser degree by the father and said, “… if I was to be asked which of the two of you is more likely to compromise, think about and reflect, I would say that you’re [the mother] more likely to do that.” He conceded that the mother in difficult circumstances made an effort to keep negative views of the father from the children.
The mother asked the Family Consultant whether he thought that she would exercise sole parental responsibility, if given to her, in a way which was responsible. The Consultant offered the statement that he knew of no instances where she had behaved in an obstructive manner as far as not consulting or not letting the father know and said, “I only know of fragments of people’s lives but certainly, to the best of my knowledge, you have made every endeavour to consult with [the father].”
The Family Consultant offered his opinion that the father felt entitled to influence the children’s attitudes as to how much time the children spent with the mother and with whom the mother chose to spend time. He had not seen signs of this abating. Although it was very important for the children that it change it was not, he said, in the interests of G and J to be presented with the idea that their mother was in a relationship with a man with whom she should not associate. The Family Consultant said that situation :
… presents an incredible tension and dilemma for the children because you want to love your mum, you want to please your dad, but you also want to feel able to respect your mum’s choice of relationships.
The Family Consultant said he understood telephone contact between the parents had become more relaxed. The father alleged that the telephone contact between himself and the mother had become more relaxed and the mother did not deny the assertion.
The Family Consultant conceded that the interim arrangement demonstrated a degree of greater co-operation between the parents and also that there was evidence that G was paying attention to his exams, which was likely a product of an agreement or common view of the parents that that should occur. It was further conceded that following the implementation of the interim arrangements J was doing better at school and that this was probably a reflection of less conflict between the parents and J spending more time with his father.
It was not however conceded by the Family Consultant that a division of time between the parents which was differential was unimportant. In relation to this it was emphasised that the perception is critical for the children. The Family Consultant said:
… equality has a very strong valence in your family as and for the children, as it would in every family where there has been a history of conflict. And my reflection on that is the parlous state of the children’s relationship with both parents … and the symbolism of it [equality], I think, is extremely important in terms of how they understand themselves in terms of their relationships with each parent.
In relation to children in middle childhood, as these children are, the Family Consultant said it was an important requirement that they see their parents as supporting and approving of both of them. This is important so that conflict between siblings does not get out of hand and they do not get into too much trouble in school in terms of the inevitable competitiveness between them.
It was further observed that the affinity which a child might, in the normal course, have with one parent and which was centred around a particular activity was not a problem, providing it was not an extreme alignment with the parent and was not exclusive of the other parent. The Family Consultant’s evidence was that G’s passion for soccer was not solely referable to a desire to please his father and was an activity undertaken by him which involved pleasure, enjoyment and had positive effect on his self-esteem. He has a passion for it and feels valued in the context of soccer.
Given that this matter has been before the Court for some four of five years, the Family Consultant, during cross-examination by the father, said he was not prepared to confidently speculate about good co-operation between the parties in the future on the basis of several examples of good co-operation. However, he acknowledged there are some signs of the matter:
… moving in the direction – in the right direction and one must feel very positive about that, but there is a reality about the longevity of the conflict that is before the court.
The Family Consultant did not demur from his assertions about the finely balanced nature of the decision on joint parental responsibility. He said that it was a “… very serious step indeed for a parent to be excluded from all decision-making as far as a child is concerned.” (emphasis added). However, the Family Consultant went on to say that if there was a requirement for consultation prior to the decision-maker exercising his or her power then that would alleviate some of the difficulties involved in the issues around parental responsibility.
The Family Consultant did not agree that the mother was unsupportive of G’s football engagements. The actions which the mother took in deregistering the child were not malevolent but rather a desperate attempt to prevent the continued alienation of the child from her and were done by someone who saw themselves as otherwise powerless in the situation. He did not agree that those actions were motivated narcissistically by someone who saw herself as being all powerful in the situation.

Credit

The mother gave evidence which was given by and large in a straightforward manner and she was prepared to make admissions against her interest. She readily conceded that the two children adored their father.
The mother did not evade the questions and there was no hint of avoidance of issues. She gave thoughtful explanations for her actions and conceded, where appropriate, that they had at times been unhelpful to her relationship with the children, and particularly with G. She seemed to have developed insight into the children’s needs and she was, in the words of the Family Consultant, able to stand back and appropriately reflect on her actions. The mother impressed as a witness of truth.
The father did not make much in the way of concessions against his own interest. He seemed to lack insight into the effect of his conduct on the welfare of his children.
During the trial the father seemed to gain, perhaps for forensic purposes, a grasp of the necessity to encourage G’s relationship with the mother and certainly was prepared to work co-operatively with the mother on assisting G with his scholarship exams.
There was, at least during the progress of this litigation, it seemed a greater encouragement of G to spend time with his mother and an improvement of the relationship between the child and the mother. I think that was in part due to the father’s encouragement of that relationship.
Nonetheless, it was the father’s position that all problems stemmed from the behaviour of the mother. He conceded virtually nothing in the acceptance of blame on his part.
The father’s actions in seeking to involve the children in a court hearing as witnesses against the mother was deplorable, but he did not see it as such even though Exhibit 20, a letter from Dr C, a Child and Adolescent Psychiatrist who was treating G, to The Presiding Magistrate, Local Court, said both children have experienced significant emotional distress due to the severely conflicted relationship between the parents, and that appearance by the children as witnesses in the court proceedings would be harmful to their psychological health and development.
His acceptance of G’s behaviour in ignoring the orders of the Court and his apparent acceptance of his son’s right to make contrary decisions notwithstanding those orders, was not something about which he expressed regret. This was his position notwithstanding the pain it had brought to J, in particular.
In relation to a number of matters the father was ‘one-eyed’ and his passion for his son’s success in soccer was clearly a matter on which he placed immense importance. It was this fervour that drove him to do things such as the petition hereinafter referred to, and in pursuit of that passion he demonstrated a lack of parental insight.
The father tended to avoid difficult questions and make speeches in support of his case rather than give answers which were responsive to the question being asked.
The Independent Children’s Lawyer submitted that the mother’s evidence in relation to a soccer game between Australia and Uzbekistan, which the children were to attend, should be accepted. Having regard to Exhibit 17, the mother said the father was obstructive in relation to her attendance at that game, and I accept that was so. The Independent Children’s Lawyer submitted that:
That’s just an example, in my submission, of the lack of preparedness by the father to encourage not only reasonable co-operation between parents as one would expect about something that’s so important to [G], but this exclusiveness between the father and [G] as to the soccer.
I accept the submission of the Independent Children’s Lawyer that the father was not ‘up front’ that he was attempting to prevent the mother from attending that sporting event.
There have been a number of events in relation to which the parties have disagreed. My findings in these proceedings will reflect my findings on the evidence that I prefer but in general, unless otherwise specified, where there is conflict between the evidence of the mother and the evidence of the father, I prefer the evidence of the mother.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the children as the paramount consideration (see section 60CA). In determining what is in the children’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the children’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires 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 child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the children’s parents are to have equal shared parental responsibility.
In the recent decision in MRR v GR (2010) 263 ALR 368 the High Court of Australia (French CJ, Gummow, Hayne, Kiefel and Bell JJ) considered the matters the Court must have regard to in determining whether it is reasonable practicable for a child to spend either equal or substantial and significant time with each parent and looked at the issue of reasonable practicability. Their Honours said (footnotes omitted):
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents”.
…
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences (“if it is”) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub‑section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
…
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

I find that the orders I make are reasonably practicable in the circumstances of this case.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

Both parties say that the children should have a meaningful relationship with the other. However, the father says those relationships should be given effect to by a programme in which the children are differentially treated (although he suggests that might change), with G living with him for longer periods than J. The father does however agree to a ‘week about’ arrangement for J.
The mother points to the evidence supporting the view that it is the father’s preference of the child G over J which has led to J acting out. She however proposes that the children should live with each of the parents on a ‘week about’ basis. Her proposal will give each of the children an opportunity to establish and retain attachments to both parents.
It is my view that in order to give these children the best opportunity of building and maintaining a meaningful relationship with each of the parents, they should spend equal time with each parent.
Whilst this has been a high conflict case and one in which there has been longevity to the conflict, I think that in the interests of these children the ‘green shoot’ of co-operation which is said to be tentatively bursting through the battlefield should be given every encouragement to grow and thrive. I have heard all the expressions of doubt and scepticism expressed in this matter but it is my view that such an arrangement will allow time for G to reinstate and build his relationship with his mother and brother and that it will also afford the like opportunity for J with his father and brother.
Much will depend on the capacity of the parents to maintain a focus on the children and not on themselves and their grievances with each other and the father’s resentment of the mother’s new partner. I am mindful of the need for these parties to act differently and co-operatively. I do not believe that their history is necessarily their destiny and each of them acknowledges that whilst such a course is difficult, I believe it is achievable.
The mirror that has been held up to them and their actions in this case distributes a certain lack of glory all round, although not perhaps equally.
It is hoped that, having perceived what is in that mirror and the destructive and damaging picture it paints of the disaster which awaits these children (who love each of them and who each of them loves) if that conflict continues for another day or hour, they will:
·allow the love for their children to guide them into exercise of restraint;
·provide each other with support for the relationship between the children and each of them; and
·work towards a common objective, namely the advancement of their children’s welfare.
If they do, they will be putting the interests of their children first.
Both of these parents want their children to achieve their maximum potential in life and each of them wants to be a contributor to the process.
Difficult though it is for them, having regard to the history of their relationship, I hope that they can confine past angst and conflict and the assumptions of innate correctness of their own view to the dustbins of history in the pursuit of the common goals that they have for their children.

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The child J is in danger of psychological harm by reason of him feeling abandoned by his father and being treated differently to G, on whom the father lavishes attention in the pursuit of a professional soccer career for his son.
Not only has the relationship between the father and J become problematic but so has the relationship between G and his sibling, J. There are two children then suffering as a result of this conflict.
The father says that any change in G’s relationship with the mother is not his doing but is caused by the mother’s attitude to the child and his soccer playing and her attempt to discipline him for running away by deregistering him as a soccer player and by reason of certain violence said to have been inflicted on the boy by his mother.
The child G has been alienated in the past from his mother, which the mother says has occurred under the influence of the father. G is in danger of psychological harm in the event that his mother is prevented from having a full relationship with him and he becomes alienated from her.
I think that there were elements of both accounts, from what I have heard, in the mix of reasons for G’s attitude, although I note that the mother has reflected on her conduct and, given that reflection, has ameliorated its effect.
I am unsure about the father having the capacity to do likewise but I do note that he has been in discussion with the mother and some co-operative steps have been taken. For the future for him it will be consistency in deeds not words which will demonstrate that he has a real insight into the needs of his children to have a productive relationship with each of their parents and each other and to have the benefit of co-operative parenting.
The father says that the children have been exposed to family violence and this appears true to some degree. It is suggested by the Family Consultant that such violence as was the responsibility of the mother was at the time simply her acting in reasonable self-defence.
The father, however, endeavoured to bring the boys into the arena of conflict by calling them to give evidence in certain proceedings in the Local Court, in which he was the subject of an application for an AVO. That step was restrained by the learned Federal Magistrate and, with respect, his order was one with which I agree. The attempt to embroil these children in the proceedings between their parents casts no credit on the father. It is also demonstrative of a total lack of insight into the way in which his conduct might adversely affect them.
The father sought to raise a petition to give to the mother apparently signed by a number of people in support of the re-registration of G to play soccer.
In a display of a total lack of concern for G’s potential embarrassment, the father said it was his intention to seek the support of parents of G’s school peers and other soccer players and also from a member of the school’s professional staff. He, in this way, made public not only to those parents but potentially to the children’s school friends, the conflict between them. This was yet another way in which these children would have been embroiled in the conflict to their detriment. It is difficult to comprehend how a father who contends that he is a loving parent would so deal with his children.
The father has sought to assert that the children are likely to be subject to physical harm in the care of the mother, and he quoted the incident referred to above. I reject the submission. The mother’s behaviour in this case has not been perfect perhaps but she has, according to the Family Consultant, demonstrated insight and a capacity to sufficiently distance herself from the conflict to allow reflection and a change of behaviour. Indeed, her dealing recently with a physical demonstration of anger by G and her ability to calm him indicates clearly that she has learnt and has developed the skills and the capacity to deal with such outbursts.
This skill of reflection and change is not yet evident in the father. Had these children had from the father the same level of perceptive support as they receive from their mother, this case would not be continuing in the Court.
There has been some belated movement towards co-operative parenting between these parents, in relation to the choice of secondary schools and the preparation of G for scholarship exams. It seems, at least on that occasion, the parties were jointly able to subordinate the characteristic conflict that arises between them in the interest of the child’s education.
Having said that, the mother says that the pursuit of discussion and agreement with the father is a painful and drawn out process which is sometimes ended by her exhaustion and as a result the mother has conceded to a proposal of the father to which she does consent, simply to end the process.
She accordingly proposes that in order to seek to avoid the harm which flows from long, drawn out conflict and disagreement on major matters there needs to be some reasonable limitation on discussion and negotiation and that after that period if no agreement be reached she should have the sole parental responsibility for making such a decision. Such a process will act as a ‘circuit breaker’ she says in that it will act as an aid to confident, timely and principled negotiation and the pursuit of a resolution.
I do not have the confidence that the mother has that such a process would necessarily work successfully, but in the difficulties which have beset these children over many years it might be a path which has benefit for them. I will however not make an order for sole parental responsibility but will adopt the suggestion of the Independent Children’s Lawyer and make an order for joint parental responsibility with an exception in relation to certain matters and impose on the mother, who will have certain sole decision making powers, an obligation to consult with the father in relation to the exercise of the power in major matters. I will, however, place some limitations on the time to be taken with such discussions in the event that there is no agreement to their continuation, so that the mother might have some confidence that the process will not be interminable on a particular issue.

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

It is clear that the child G has said that he wishes to live with his father.
The child is 11 years of age. The view would, in normal circumstances, carry weight. It however seems to me that it is a view born of the attitude of the father and the conflict that has arisen in these proceedings and the actions of each of the parents.
The child, it seems, according to the Family Consultant, does have affection for his mother but his capacity to show it varies. Of recent times the evidence is that he volunteers expressions of affection and love for his mother.
However, I have come to the conclusion that the mother may well be right in asserting that the child will say and do what his father tells him.
It is, therefore in my view, a case where the circumstances are such that in determining the child’s future I should treat his views with great care.
The child J has clearly also a desire to have a relationship with his father but has become supportive of his mother and “taken sides” because of his perception that he has been rejected by his father.
He has also expressed views about G and his relationship with him is impaired. In the circumstances of this case I believe that the views of these children are reactive to the conflict and parental pressure and in the case of G are reflective of his father’s needs and wishes and, in the case of J, are reflective of his father’s conduct toward G.
For these reasons I will not give that weight to them that perhaps might otherwise be the case but will take them into account in the decision that I make.

(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)

I refer to the evidence cited above and find that the children have the relationships as previously discussed. That is to say that the relationship between G and his father is close and the relationship between that child and the mother has been damaged, but is being repaired. G’s relationship with the mother’s new partner is antipathetic but it appears reflects the attitude of his father. The relationship between J and his mother is close but his relationship with his father is impaired by his perceived rejection of him by his father, in favour of his brother. The relationship with the father has been damaged by that perceived rejection but now appears to be being restored in circumstances where the conflict between the parties is reduced.

(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

There is some doubt in my mind as to the father’s ability and willingness to foster a relationship between the children and their mother. He says this is not so and that it is evidenced by his recent co-operation with the mother. As I have said elsewhere it will take longer in my view, by real actions and not words, for the father to imbue the mother and the Court with any confidence that this is so. However, I intend to give the father the opportunity to make that demonstration of willingness and ability. I hope that he understands that any failure of determination on his part to make it so will hurt the two children whom he loves.

(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

The change that I propose in the orders will provide a little but important difference to the children’s lives. They will observe that they are wanted and loved equally by their parents. It is my hope that the small ‘green shoot’ of co-operation will develop into an environment for the children in which they can express without fear of the other parent’s reaction, their confidence in and love for each of their parents and each other.
The orders will involve the changeover of the children at school to reduce the need for the parents at this time at least (and I hope this would change) to come into contact with each other frequently. The orders proposed by the father involved a greater number of changeovers and, in my view, were not to be preferred to a simple solution. His concern is that with more time with the mother the child G will not be able to reach his soccer potential. Although the parents seemingly have different views about this, the mother has at least agreed to support the child reasonably in his soccer career, providing it is not to the detriment of his all-round development and education.
The change of arrangements for J will afford him the opportunity for the attention and support of his father, which he desires, and given that the children will be together, hopefully the opportunity of repairing and rebuilding his relationship with his brother. The responsibility for achieving that latter end lies significantly with the parents. I think that they have the intellectual commitment to making it the case. It remains to be seen whether that can be converted into a reality for J.

(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 parents live some fifteen to twenty minutes apart. The mother has allowed conversations between the children and their father whilst in her care. There is no evidence that the father has not done the reverse. There is no practical difficulty and expense of either child spending time with or communicating with either parent and there is no evidence of any difficulty or expense which will substantially affect the children’s right to maintain personal relationships and direct contact with both parents on a regular basis.

(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

It seems that the mother has borne the heat and burden of the day in relation to the costs of the support of the children and the father’s contribution to their cost whilst in their mother’s care has been small.
The father gave evidence that he hopes to procure a greater income and will be able to support them whilst in his care.
The mother has a demonstrated capacity to provide for the physical needs of the children, as has the father.
Each of the parents contribute to the children’s intellectual needs, including in particular the mother with encouragement and support in the development of verbal and English skills and the father with mathematical skills.
In the conflict between the parents the father has hitherto not been able to provide for the emotional needs of the child J to have a relationship with him and his brother. Nor has he understood hitherto the need for G to have a close relationship with his brother, whom he loves, and also with his mother.
The mother has caused some damage to her relationship with G by reason of her actions in relation to his soccer playing which, although understandable, were regrettable. She has appropriately expressed her regret and has ameliorated the consequences of her decisions. I believe she has a clear capacity to reflect on her actions and recognise the needs of her children emotionally and intellectually and to be able to respond to them.
Recent events indicate that the father too may be developing that insight and starting, albeit belatedly, to demonstrate such a capacity.

(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

The view of the Family Consultant was that the children were age appropriate in their overall maturity. The child G is an above average achiever at school but the Consultant says this does not equate to a better than average maturity.

(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

The children are not Aboriginal or Torres Strait Islander children.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

I have referred to these matters above, and there appears to be a change for the better as set out above.

(j)any family violence involving the child or a member of the child’s family

I have touched on this earlier. There have been AVO proceedings with the following results. The father was charged with common assault on 15 March 2006, and entered into a twelve month bond not to assault, molest, harass or otherwise interfere with the mother, or incite any third party to do so. On 27 March 2008 in the Local Court the father was charged with common assault, and contravention of an AVO, and which convictions were confirmed in the District Court in January 2009. On 16 July 2009 and on 7 September 2009 in the Local Court the father was found guilty of a breach of an AVO.

(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

I refer to the preceding paragraph.

(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

The history of this litigation has been an appalling demonstration of conflicted relationships. The parties have been constantly involved in proceedings either in this Court or others. On the history of the matter one could not say that any order of this Court will determine a position where future proceedings were not a real possibility. It is my hope that the current readjustment and support given to the parents by these orders will afford them the opportunity for consultation and agreement with help if required, and keep any disputes which arise hopefully away from the processes of Courts. I believe that no-one is beyond redemption, although the history of this case tests that faith somewhat. Nevertheless, unless what I propose to do is done these children will continue to suffer harm to the point where it is unable to be repaired and they will lose the meaningful relationships which they are each entitled to have with their parents and each other. They will otherwise be likely to suffer.

(m)any other fact or circumstance that the court thinks is relevant

It is not my intention to make a self-executing order in the event of a breach of my Orders. It is not possible at this time to determine what the situation might then be. I cannot, in my view, absent evidence of the then situation, come to a conclusion as to what serves best the interests of these children at that time. The non-compliance with an order in this case could lead to the forfeiture of the Bond the party has entered into and, in addition, on any such application before the Court, the Court would have the power to vary the orders in response to the non-compliance at that time. I think that these prospects for now are sufficient to encourage compliance with the orders.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
It appears that the parties have largely taken the opportunities that have realistically been available to them to participate in decisions concerning the children and that has been more the case during the last twelve months.
There has been a complaint by the father that the mother had not taken the opportunity to see G at soccer. However, given the nature of the conflict and the lack of desire on the part of the child J to be present at such activities that is perhaps understandable, although a disappointment no doubt to G.
Hopefully with the new approach following the orders herein made that situation will be rectified and the mother will have a greater opportunity to support and recognise G’s skills in a way which is consistent with her obligations to him and to J.
The mother did not involve the father in the decision making in relation to the de-registration of G in soccer.
I do not believe that hitherto the father has facilitated the child G spending appropriate time with his mother and I think he has supported the child acting in defiance of the orders of the Court. Hopefully his disobedience is now at an end. If it is not then the Court will have no alternative but to consider removing that influence from G’s life. There now appears to be greater freedom for the children to communicate with each of the parents.
The mother has in full measure met her obligation to support the children and, whist the father’s contributions to their support have been small they are as I am informed, in accordance with the formula set forth in the Child Support (Assessment) Act 1989. The father has indicated that he will be seeking a job earning more money so that he can better support his children.
In making my decision I have, as indicated, taken into account events which have occurred since the parties separated.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this matter I find that notwithstanding the violence which has occurred the best interests of these children are served generally by an order for shared parental responsibility, subject to an exception in relation to education and health. The Minute of Order sought by the Independent Children’s Lawyer on 26 March 2010 seeks that the mother have sole parental responsibility in relation to health and education, save for any urgent medical treatment the children may require whilst in the father’s care.

Section 65DAA

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
I propose to make an order for the parents to have equal time with their children, although I intend to put some limitation on the concept of shared parental responsibility, which I do in an endeavour to provide a ‘circuit breaker’ on occasions where there is disagreement in the hope that the children will not be left to wallow in a mire of indecision.
The children have been spending substantial and significant time with each parent and it seems to me that the change is not significant in terms of practicality.
The parents live but 20 minutes or thereabouts from each other and the changeovers are going to occur at school.
Whilst the father has an unenviable history in relation to the facilitation of court orders I think that the Bond which has been entered into by both parties and some of the new insights gained will afford an impetus for them to demonstrate the capacity that they undoubtedly have to implement the regime for equal shared time.
Equally, the parties’ past ability to communicate has been poor but there are some signs of improvement and I have hope that that improvement will continue.
It is in any event on the evidence of the Family Consultant desirable for these children to spend equal time with each parent for the reasons set forth above.
In order to give the parties some assistance with communication it is my intention to make an order which gives them assistance from the Court under section 65L of the Act for a period of two years.
I do not consider that an arrangement for equal shared time will have any adverse impact on the children and indeed to the contrary will afford them the maximum opportunity of receiving from their parents that contribution that they are able to make to their attainment of their full potential.
The father raises the issue of the child G’s soccer training but the mother has indicated her reasonable support for that. In the circumstances I find that the arrangement is practicable.
The order I propose to make will afford the children close to equal shared time with the parents and I find that to be in their interests.

The Orders to be made

I therefore propose to make the orders in relation to parenting as set forth above which I find are in the best interests of these children..

I certify that the preceding two-hundred and thirty-six (236) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 20 April 2010

[2010] FamCA 809

20 April 2010

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