RONCALLI & RONCALLI

[2016] FamCA 1090

FAMILY COURT OF AUSTRALIA

RONCALLI & RONCALLI [2016] FamCA 1090

FAMILY LAW – CHILDREN – Interlocutory Applications – Parental Responsibility – Where the mother sought the allocation of parental responsibility to the residential parent – Where the father sought no order as to parental responsibility – Where the parents are incapable of sharing parental responsibility – Where there are cross allegations of violent and abusive conduct – Decided the presumption of equal shared parental responsibility does not apply – Ordered sole parental responsibility

FAMILY LAW – CHILDREN – Interlocutory Applications – With whom the child should live – Where the mother is not currently working – Where the mother was the main carer – Where the children are not at material risk of harm in her care – Ordered the children live with the mother

FAMILY LAW – CHILDREN – Interlocutory Applications – Time with the non-residential parent – Where mother proposed the youngest child spend less time with the father than the eldest two children – Where there is no social science evidence before the court – Where changeovers may give rise to parental conflict – Decided no differentiation between children – Decided changeovers should be minimised

Family Law Act 1975 (Cth) ss, 60B, 60CA, 60CC, 61C, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC

Family Law Rules 2004 (Cth) r 5.09

Banks & Banks (2015) FamCAFC 36
Goode & Goode (2006) FLC 93-286
RCB v Forrest & Ors (2012) 247 CLR 304

APPLICANT: Ms Roncalli

RESPONDENT: Ms Roncalli

FILE NUMBER: SYC 6230 of 2016

DATE DELIVERED: 30 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 30 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rosic

SOLICITOR FOR THE APPLICANT: Turner Freeman Lawyers

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

Orders

IT IS ORDERED THAT:

1. Leave is refused for the applicant mother to rely on the following affidavits in today’s proceedings:

   a.   her affidavit filed 27 September 2016;

   b.   the affidavit of Ms B filed 24 November 2016; and

c.   the affidavit of Ms C filed 22 November 2016.

PENDING FURTHER ORDER IT IS FURTHER ORDERED THAT:

1. The mother shall have sole parental responsibility in respect of all “major long-term issues” (as defined in the Family Law Act 1975 (Cth)) for the children:

   a.D Roncalli born … 2006;

   b.E Roncalli born … 2009; and

c.F Roncalli born … 2014.

1. The children shall live with the mother.

2. The parties shall take all reasonable steps to ensure the children spend time with the father as follows, unless otherwise agreed:

a.From 5:00 pm Thursday 8 December 2016 to 8:45 am Monday 12 December 2016;

b.From 5:00 pm Thursday 22 December 2016 to 5:00 pm Saturday 24 December 2016;

c.From 9:00 am Sunday 1 January 2017 to 5:00 pm Sunday 15 January 2017;

d.During New South Wales school terms, as from 2017, each alternate week from 5:00 pm Thursday until 8:45 am Monday, commencing on the first Thursday of each school term;

e.For the first week of the Autumn, Winter and Spring New South Wales school holidays, commencing at 5:00 pm on the last day of term and concluding at 5:00 pm on the second Saturday thereafter;

f.For two weeks in the Summer New South Wales school holidays commencing at the end of 2017, commencing at 3:00 pm on Christmas Day and concluding at 5:00 pm on 8 January 2017.

1. For the purposes of implementing Order 4 hereof, the parties shall exchange the children:

   a.At G Park, Suburb H New South Wales, at the commencement of the children’s visits with the father;

   b.At the eldest child’s school whenever the children’s visits with the father end on a school morning; and

c.At G Park, Suburb H New South Wales, whenever the children’s visits with the father end on a non-school day.

1. The mother is restrained from consuming any alcohol whilst the children are in her care or for a period of 12 hours preceding the children’s return to her care.

2. Unless otherwise agreed the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

a.the father each Wednesday at 6:00 pm when the children are living with the mother and for that purpose the father shall telephone the children on the telephone number provided to him by the mother and the mother shall ensure that the children are able to receive the father’s calls on that number at that time; and

b.the mother each Wednesday at 6:00 pm when the children are spending time with the father and for that purpose the mother shall telephone the children on the telephone number provided to her by the father and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.

1. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

1. The parties shall forthwith inform the other and keep the other informed in writing of their respective current residential address and mobile telephone number.

1. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

1. The mother shall authorise and request the Principal of any preschool or school attended by the children to provide the father at his expense copies of all school reports in respect of the children.

1. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto which forms part of these orders.

1. Save as to costs, otherwise:

a.The application for interim relief contained within the Amended Application filed on 22 November 2016 is dismissed;

b.The application for relief contained within Exhibit M4 is dismissed;

c.The application for interim relief contained within the Response filed on 11 November 2016 is dismissed;

d.The application for relief set out within Exhibit F7 is dismissed; and

e.Any and all remaining applications for interim relief are dismissed.

1. No order as to costs.

NOTATIONS

A.The respondent father does not require the publication of reasons for the dismissal of his costs application reflected in Order 14 hereof.

B.The solicitor for the applicant mother informs the court that she will not charge the applicant mother any costs for the preparation of the affidavits for which she was denied leave to rely upon in the interim hearing. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Roncalli & Roncalli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6230 of 2016

Ms Roncalli

Applicant

And

Ms Roncalli

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 16 August 2016 the applicant mother and respondent father separated as a consequence of the father’s decision to vacate the former matrimonial home. 

2. The mother commenced these proceedings on 27 September 2016, seeking relief in the nature of parenting and property settlement orders under Parts VII and VIII of the Family Law Act 1975 (Cth) (“the Act”).

3. Her application for interim relief was listed for hearing today in the duty list, as was the father’s application for interim relief in response. These reasons deal with the determination of their competing interim applications.

Proposals

1. The mother abandoned the claim for relief sought in her Amended Application filed on 22 November 2016. She instead sought the orders set out in a minute of orders she produced today, which document was tendered (Exhibit M4). 

2. The father abandoned the claim for relief sought in his Response filed on 11 November 2016. He instead sought the orders set out in a minute of orders he produced today, which document was tendered (Exhibit F7).

3. By reference to their belated proposals, the issues in dispute were broadly: 

   (a)Parenting orders, and in particular:

   (i)The allocation of parental responsibility, including an issue about the children’s school enrolment;

   (ii)Residence of the children; and

   (iii)The children’s interaction with the non-residential parent.

   (b)Property orders, and in particular:

   (i)The mother’s exclusive occupation, or the sale, of the former matrimonial home;

   (ii)Spousal maintenance payable by the father to the mother; and

   (iii)Litigation funding orders for the mother or both parties.

Evidence

1. The mother relied upon her affidavit filed on 22 November 2016 and her financial statement filed on 27 September 2016. 

2. The mother was denied leave to rely upon the following evidence because of her inability to justify waiver of rule 5.09 of the Family Law Rules 2004 (Cth) (“the Rules”):

   (a)Her affidavit filed on 27 September 2016;

   (b)The affidavit of Ms B, filed 24 November 2016; and

   (c)The affidavit of Ms C, filed 22 November 2016.

3. The father relied upon his affidavit and financial statement, both of which were filed on 11 November 2016.

Property applications

1. The mother admitted she could not adduce evidence to prove her entitlement to either a spousal maintenance order or a litigation funding order. Those applications will therefore be dismissed. The mother sought the bifurcation of her application, so such orders could be sought at some later time, convenient to her, when she believed she did possess the evidence to warrant such orders. Her application for adjournment of those applications was refused. She filed her application seeking interim relief in late September 2016 and it is now late November 2016. Her application was accorded the urgency it deserved by it being listed for hearing in today’s duty list. If she was unready to prosecute the application, the fault was hers. If she acknowledges her application can be adjourned, it is tantamount to an admission the need for such relief is not urgent and it should not clog the duty lists. 

2. The mother also sought an order granting her sole occupation of the former matrimonial home. The application for that relief is dismissed because it is superfluous. It is uncontroversial she is the sole legal and equitable proprietor of the former matrimonial home and she continues to occupy it. If the father attends upon her home, she can have him ejected as a trespasser and summon assistance from the police if she feels the need.

3. The father sought an order for the former matrimonial home to be sold so an equal amount of money from the sale proceeds could be distributed to both parties to fund this litigation, with the balance of the sale proceeds to be held in trust pending the outcome of their substantive property settlement dispute. His application is dismissed for several reasons. 

4. First, the mother wants to retain the former matrimonial home and she may yet be able to eventually do so, depending upon the extent and value of other assets in which the father enjoys proprietorship.

5. Secondly, contrary to his belief, the mother may be able to sustain the mortgage repayments with financial assistance from her family or friends. If she cannot, the sale of the home will almost inevitably follow upon the mortgagee foreclosing on the mortgage, so he may yet have his way about sale of the home without the need to grant his precipitous application.

6. Thirdly, the father demonstrated no reason why his lawyers should be paid from the proceeds of sale of the mother’s asset. He has valuable assets of his own which he can use to pay his own lawyers. 

7. Lastly, if the children live with the mother, it is reasonable for her to want to accommodate them in the home with which they are familiar, enabling them to attend the schools at which they are enrolled.

Parenting applications

Legal Principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a parenting order is defined (s 64B).

2. When invited to make a parenting order the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D). When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests is served by an order allocating equal shared parental responsibility for the child to the parents, though that presumption may either be rendered inapplicable or rebutted (s 61DA). In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

4. Those legal principles apply regardless of whether the parenting orders are sought on a final or interlocutory basis.

5. The procedure for conducting an interim hearing such as this has been authoritatively established by the Full Court in Goode & Goode (2006) FLC 93-286, where the Full Court observed that (at [68]):

   …the procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute, and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

6. In Banks & Banks (2015) FamCAFC 36 at [47]-[50], the Full Court noted that a paucity of uncontroversial evidence means that only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. Not every s 60CC factor need be discussed in that process.

7. Against the background of those principles, I turn to consider the evidence relevant to the children’s best interests.

Section 60CC(2)(a)

1. The factor prescribed under s 60CC(2)(a) was not directly addressed by either party in their submissions. I inferentially accept from the available evidence that the relationship each child has with each parent is a meaningful one; in the sense that it is important, significant and valuable to them.

2. The father adduced evidence of adverse comments made by the two eldest children about the mother, but I attribute little weight to comments made by relatively young children to only one parent in circumstances where they are probably aware of high parental conflict.

3. Tendered in evidence were two supervision reports prepared by the supervisor currently engaged to supervise the two eldest children’s interaction with the mother (Exhibit M1). Both reports disclose the two eldest children seem very happy to see the mother during visits. They both approached and embraced her without prompting. The supervisor regarded them to be settled and engaged in activities and conversations with both the mother and their younger sibling. The supervisor described warm and unhesitating exchanges between the children and the mother, which comments are generally characteristic of the entirety of the reports. 

4. Also tendered in evidence was a family risk assessment report prepared, apparently in August 2016, by staff of the NSW Department of Family and Community Services (“the Department”). Among other things, the report notes as follows:

   Community Services have no information to suggest that the mother does not provide physical care consistent with the children’s needs.  When case workers interviewed the mother on 21 June 2016 she advised case workers of the children’s usual routine…case workers observed the home as being tidy with evidence of toys and children living in the house.  Case workers also observed the content of both fridges in the home, with both of them being full with food.

5. I am satisfied on the evidence before the Court that each child does and should benefit from their meaningful relationships with both parents. 

6. It was the father’s proposal in these proceedings that the children’s interaction with the mother should be confined to brief periods under the supervision of a professional supervisor. I infer the imposition of such supervision would impinge upon the meaningfulness of, and curtail the benefit the children derive from, their relationships with the mother. Consequently, I am not prepared to make an order in those terms unless the evidence adduced by the father, with relevance to s 60CC(2)(b), enables a conclusion to be fairly drawn that their need for safety trumps their need for the continuing derivation of benefit from their relationships with the mother (s 60CC(2A)).

7. Accordingly, I now turn to consider the evidence relevant to s 60CC(2)(b).

Section 60CC(2)(b)

1. The father generically submitted the children were at risk of harm in the mother’s care.  When pressed to elaborate, he submitted they were at risk of being subjected or exposed to “aggressive or abusive behaviour” by the mother as a consequence of her “excessive use of alcohol”.

2. At the outset it should be observed there was no overt allegation of any abuse perpetrated by the mother upon the children. The father did allege that on one occasion, in or about January 2016, the mother grabbed the eldest child on the upper arm and caused some scratch marks on his bicep but, even if the father’s version of that incident is correct, I am loathe to regard the incident as an episode of “abuse” (as defined in s 4 of the Act) rather than simply as an act of discipline that had unintended consequences. Despite the father’s observation of the incident, he did not report it to any authority for investigation. It follows from his evidence that he must have been content for the parenting arrangement then in place within their household to continue, so the mother remained the primary carer for the children and he remained the primary breadwinner. I am not satisfied that now, after the elapse of some 11 months and the recent instigation of this litigation following separation, he can persuasively rely upon the incident for tactical advantage in this interlocutory dispute.

1. The parties made counter-allegations of the other acting in a way that did, or might, amount to family violence, to which conduct the children were, or could have been, exposed. Save for one episode I will shortly address, there is no evidence of the occurrence of any alleged family violence between them since their separation a few months ago.

2. The single exception is found in the father’s affidavit where he deposed (at [157]) to an incident between the parties on 11 September 2016. They engaged in a heated argument over which family members from both the maternal and paternal families should attend a Holy Communion event for the eldest child.  The father alleged that, during the argument, the mother “lost her temper and tried to strike [him]”. The incident is certainly no more serious than the many past physical assaults allegedly committed by him upon the mother, often in the children’s presence. Even if the incident occurred in the way the husband deposed, the mother did not physically strike him and it remains the single incident of frank physical aggression between them since their separation. That incident in isolation does not disqualify the mother from consideration as the residential parent.

3. Similarly, both parties alleged the other consumed too much alcohol, which they each implied was an influential factor in the way they each formerly behaved.  For the mother’s part, she concedes she was inebriated at times in the past, some as recently as only a few months ago, as proven by several exhibits tendered by the father (Exhibits F4, F5, F6). But it is a stretch to contend, because of that history, she probably still does now consume alcohol excessively. It is even more of a stretch to contend the children are thereby at unacceptable risk of harm in her care.

4. The father adduced swathes of evidence about past episodes of the mother’s inebriation, but several important things should be noted.

5. First, the father recently told staff of the Department in November 2016 that the mother’s drinking has “slowed down now” (Exhibit M2). There is no evidence before the Court of her regular and unrestrained intoxication since separation. The father’s recent concession about the apparent abatement of the problem is plainly inconsistent with the flavour of his submissions to the Court today.

6. Secondly, the Department was apparently satisfied of the mother’s parenting capacity in both June 2016 and October 2016. During an interview in June 2016, the Department’s caseworkers were seemingly satisfied the mother was then meeting all of the children’s needs (Exhibit M3) and, in October 2016, the caseworkers advised the father they had observed the youngest child in the care of the mother and they “did not have any concerns for the safety and well‑being of the youngest child in the mother’s care” (Exhibit F1).

7. Thirdly, the father has behaved in a way which implies his satisfaction the mother can adequately care for the children. The mother deposed (at [46]) that on the weekend of 23 July 2016, which is barely a month before their final separation, the husband travelled with friends to I Town for the weekend leaving the three children in her unsupervised care. Surely he would not have done so if he was so concerned about their welfare in her care. The mother also deposed (at [55]-[56]) that in the middle of August 2016, which is just prior to their final separation, the father told her he intended to move out of the former matrimonial home, leave the children in her care, but see them regularly. She asserted that, just prior to the father’s vacation of the former matrimonial home, they discussed the situation about the eldest two children and tentatively agreed they would continue to live with her and spend “large parts of the weekend” with him when he was not working. Surely he would not have willingly left the children in the mother’s care upon separation if he was worried about their safety with her.

8. For his part, the father deposed (at [27]) it became apparent to him in August 2016 that the parties could no longer live together in the former matrimonial home. He consequently arranged to lease a separate residential property and he deposed that:

   When I entered into that lease I did not anticipate that the two eldest children would be living with me full-time.

9. So, at the time he planned to vacate the home and arranged separate accommodation, he did not intend that any of the children would live with him. He must then have been content for the mother to remain the children’s primary carer. He deposed further that, at or about the time he vacated the former matrimonial home, he expected the middle child would wish to remain living in the former matrimonial home (at [134]), and further, he told the eldest child that once he moved out he would “still continue to spend lots of time with him” (at [136]). Self-evidently, the father intended to remove himself from the household, he intended that the children would remain living with the mother in the family home, and he intended to regularly see each of the children.

10. Notwithstanding such intention, the father subsequently decided to take the two eldest children with him and leave the youngest child in the mother’s care. With respect to the youngest child, the father deposed he had a conversation with the mother at which time he told her (at [139]) “given the youngest child’s age it’s better she stays with you”, so whatever conclusion he reached about the two eldest children, he concluded the youngest child, who was the child in most need of care and supervision, should stay with the mother.

11. I am satisfied the mother has consumed too much alcohol for her own good in the past, but I am not satisfied her current level of alcohol consumption materially compromises her capacity to care for the children adequately. To the extent that any extra comfort is required, she indicated her willingness to submit to an injunction restraining her consumption of alcohol while the children are in her care.

Section 60CC(3)

1. The only additional consideration of relevance addressed by the parties was the children’s views (s 60CC(3)(a)). The youngest child is not yet three years of age and has not expressed any views. The two eldest children are now aged ten and seven years respectively and there is some evidence of their expressed views. 

2. At or about the time of the father’s departure from the former matrimonial home in August 2016, the father engaged the two eldest children in conversations that were wholly inappropriate for their age and maturity.

3. The father first conversed with the middle child in the following terms (at [133]-[134]):

   Father:  I can’t stay in the house any more.  The fighting is too much.  I am worried mum is going to hurt you or your brother or your sister or me again or even herself.  I think that if I leave the fighting will stop and maybe we can have a peaceful life.  It doesn’t mean that I don’t love you, it just means that mum and I can’t live together any more. 

   Child:  I am coming with you.  You can’t leave me here.  I will live with you wherever you go, okay, daddy?  Will you take me with you?  Promise me you won’t leave me here. 

4. The father then conversed with the eldest child in the following terms (at [135]-[137]):

   Father:  I need to move out of the house.  If I move out then I hope the fighting will stop. 

   Child:  Mum doesn’t just fight with you, dad.  She fights with us.  She screams at us and hits us.  It should be mum that moves out of the house.  She is the one causing all of the trouble…dad, I want you to stay in this house.  I don’t want to leave it. 

   Father:  That’s fine [eldest child].  You can stay here and I will visit you every day and we will spend lots of time together. 

   Child:  You don’t understand, dad.  Mum needs to go, not you.  Tell her she needs to go.  I will tell her she needs to go.  

   Father:  [Eldest child] that’s going to cause more fighting and trouble and you can come and stay with me whenever you like. 

   Child:  I want to come with you, dad.  Okay?  I want to live with you and visit mum…

5. Such conversation could only have inculcated in the children knowledge that the father believed the mother was a danger to them, they could escape such danger by leaving the former matrimonial home with him, and they were being expected to demonstrate allegiance between their parents. 

6. Perhaps unsurprisingly, the two eldest children told the father they wanted to be with him. He then took them with him after informing the mother of his intention to do so. Importantly, he did not take the two eldest children because he believed they were unsafe in the mother’s care. He took them only because he believed they insisted on it.

7. It is well known that children, especially young ones like the two eldest children, are invariably vulnerable to the influence of adults who have control of them (see RCB v Forrest & Ors (2012) 247 CLR 304 at [52]), so I attribute little weight to the views expressed by the children directly to the father. The two eldest children were separately interviewed by staff of the Department some months ago in June 2016 (Exhibits F2 and F3). They were seemingly well aware of the intense conflict between their parents, but they did not express a preference for one parent over the other. They obviously love both parents and their sibling. The nature of the loving interaction between the two eldest children and the mother whilst under supervision (Exhibit M1) mollifies any concern about their comfort while in her care and control.

Parental Responsibility

1. Neither party proposed an order in respect of parental responsibility. Ultimately, the mother sought sole parental responsibility for the children (if they reside with her) because of the parties’ inability to communicate courteously and cooperatively and she conceded the father should have sole parental responsibility if the children instead live with him. The father wanted no order for parental responsibility at all. He wanted the Court to solve the parties’ dispute over the two eldest children’s school enrolment for 2017, because he accepted the parties are incapable of resolving it themselves. Otherwise, he wanted parental responsibility to be left where it falls pursuant to s 61C of the Act.

2. As I have already indicated, when a parenting order is sought from the Court, the Act requires the Court to apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child (s 61DA). However, the Act also provides that when the Court is making an interim order (such as in this instance) the presumption of equal shared parental responsibility does not apply if the Court considers it would not be appropriate for it to do so (s 61DA(3)).

3. I am satisfied it is not appropriate for the presumption of equal shared parental responsibility to apply, quite apart from the fact that neither party sought an order in those terms. The evidence clearly establishes the parties are incapable of sharing parental responsibility in the manner envisaged by the Act (s 65DAC). The insoluble problem of next year’s school enrolment is an obvious example. The heinous allegations of violent and abusive conduct made by each party against the other renders any order for equal shared parental responsibility quite inapposite.

4. I am not persuaded to simply let s 61C of the Act apply, because that form of parental responsibility can be exercised individually by one parent without recourse to the other. Even if I was to make an order about school enrolment to quell the parties’ current dispute over that issue, due to the depth of their hostility, some other significant issue is liable to arise and require the Court’s further intervention.

5. An order for sole parental responsibility will be made and the party with whom the children live will have exclusive parental responsibility on an interim basis. That will obviate the need for a separate order about the children’s school enrolment because the party with parental responsibility will decide.

Residence

1. Since no order for equal shared parental responsibility will be made, s 65DAA of the Act is not engaged.

2. On balance, the children should live with the mother. It is likely she was their main carer during the parties’ relationship. The father was the main breadwinner, though he also seems to have had a reasonably high degree of involvement in the children’s daily lives.  

3. The mother is not currently working. She can devote herself to the full-time care of the children. No aspect of the evidence convincingly established she cannot adequately provide for their physical, emotional and intellectual needs. As already explained, I am not satisfied on the available, though untested, evidence that the children are at any material risk of harm in her care.

4. Neither party countenanced the children being split between households, as they currently are, and I agree all three children should live together in whichever household is preferable.

Interaction with the Father

1. The mother proposed that at least the two eldest children should spend substantial and significant time with the father, which amounted to four days in each fortnight. She proposed the youngest child should spend only two days per fortnight (excluding any overnight time) with the father, with such visits to correlate with the two eldest children’s visits to the father. 

2. I am not satisfied that such differentiation between the children is warranted. Certainly there was no social science evidence before the Court to justify that outcome. The youngest child will turn three years of age in March 2017; only a few months hence. The children will benefit from living together and the youngest child’s stability will likely be enhanced by the company of her siblings when visiting the father. Consequently, orders are made for all three children to spend four nights per fortnight with the father, together with additional periods during school holidays.

3. Because of the outright animosity between the parties, the prospect of their interaction should be minimised. That is the reason for only one visit per fortnight and one visit per school holiday, meaning there will only be two exchanges during the fortnightly visits and the school holiday visits. The venues for the exchanges will be either the eldest child’s school or the public park nominated by the mother. Hopefully, the use of public venues like those will deter and minimise the chance of the parties’ conflict.

Miscellaneous orders 

1. Between visits, the children should communicate with the father once each week by telephone. He was concerned about the 10-day duration between fortnightly visits. The passage of that time will be assuaged by regular telephone communication. 

2. Otherwise, orders are made about non-denigration, knowledge of the parties’ contact details, notifications between them about the children, and the father’s procurement of information about the children’s academic progress. Such orders could not be the subject of rational opposition.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 30 November 2016.

Associate: 

Date:  19 December 2016