Rowan & Hopkins (No 2)
[2023] FedCFamC2F 1007
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rowan & Hopkins (No 2) [2023] FedCFamC2F 1007
File number: ADC 5855 of 2021 Judgment of: JUDGE BROWN Date of judgment: 11 August 2023 Catchwords: FAMILY LAW – Parenting – final hearing – care arrangements for two children aged 8 and 5 – where parties live a significant distance apart – where the father conceded relocation aspect of the case on completion of the evidence – limited issues – where parties are in dispute regarding time spending – best interests of the children – meaningful relationship – matters to be considered Legislation: Family Law Act 1975 (Cth) Pts VII, XI, Div 4, ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAC, 65DAE, 68B, 102NA, 114
Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth)
Cases cited: Adamson & Adamson (2014) FLC 93-622
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Bartel & Schmucker (No. 3) [2012] FamCA 1094
Godfrey v Sanders (2007) 208 FLR 287
Rowan & Hopkins [2022] FedCFamC2F 214
Jurchenko & Foster (2014) 51 Fam LR 588
Mazorski v Albright (2007) 37 Fam LR 518
Penwick & Wogan [2022] FedCFamC2F 1293
Russell & Russell and Anor [2009] FamCA 28
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 2 Family Law Number of paragraphs: 184 Date of last submissions: 18 July 2023 Date of hearing: 29, 30 & 31 May 2023, 18 July 2023 Place: Adelaide Counsel for the Applicant: Mr Childs Solicitor for the Applicant: Legal Services Commission of South Australia Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: The Family Law Project ORDERS
ADC 5855 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ROWAN
Applicant
AND: MR HOPKINS
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
11 AUGUST 2023
THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the children X born in 2014 and Y born in 2017 (hereinafter referred to as "the children").
2.The children live with the mother.
3.The children spend time with the father as follows:
(a)Each alternate weekend from 6.00 pm Friday to 5.00 pm Sunday (or 5.00 pm Monday if the Monday is a public holiday) commencing 18 August 2023;
UPON NOTING that if the father is able to spend time with the children on his weekend in the Region C, then upon providing the mother with at least twenty-eight (28) days prior written notice the father shall spend time with the children on that weekend from the conclusion of school on Friday until the commencement of school on Monday.
(b)During the term school holiday periods as follows:
(i)If the father's alternate weekend time falls on the first weekend of the school holiday period, his time be extended on that occasion to conclude nine (9) nights later at 5.00 pm on the middle Sunday of the school holiday period, PROVIDED THAT the children shall then remain with the mother for the remainder of that school holiday period, with the father's alternate weekend time to resume on the first Friday of the new school term;
(ii)If the father's alternate weekend time falls on the middle Friday of the school holiday period, his time be extended on that occasion to conclude nine (9) nights later at 5.00 pm on the last Sunday of the school holiday period, with the father's alternate weekend time to resume on the second Friday of the new school term.
(c)During Christmas school holiday periods as follows:
(i)The father's alternate weekend time shall be extended on each of the first three occasions it occurs so that the time on each occasion concludes eight nights later at 5.00 pm Saturday PROVIDED THAT the children shall then remain with the mother for the remainder of the school holiday period and with the father's alternate weekend time to resume on the first Friday of the new school year, unless the father's last period of school holiday time concluded on the last Saturday of the holiday period in which case the father's alternate weekend time shall resume on the second Friday of the new school year.
4.The children spend time with each of the parties on special occasions as follows, noting paragraph 3 herein is suspended during such times:
(a)For Mother's Day with the mother on the Friday prior to Mother's Day from the conclusion of school (or 6.00 pm if not a school day) until 5.00 pm on Mother's Day;
(b)For Father's Day with the father on the Friday prior to Father's Day from the conclusion of school (if a school day and the father elects to collect the children from school) or otherwise at 6.00 pm, until 5.00 pm on Father's Day;
(c)For Christmas in 2023 and each alternate year thereafter with the mother from 3.00 pm on 23 December until 3.00 pm on Christmas Day, and with the father from 3.00 pm on Christmas Day;
(d)For Christmas in 2024 and each alternate year thereafter with the father from 3.00 pm on 23 December until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm;
(e)For Easter in 2024 and each alternate year thereafter with the mother from the conclusion of school (or 6.00 pm if not a school day) on Easter Thursday until 3.00 pm on Easter Saturday, and with the father from 3.00 pm on Easter Saturday until 3.00 pm on Easter Monday;
(f)For Easter in 2025 and each alternate year thereafter with the father from the conclusion of school (if a school day and the father elects to collect the children from school) or otherwise at 6.00 pm on Easter Thursday until 3.00 pm on Easter Saturday, and with the mother from 3.00 pm on Easter Saturday until 3.00 pm on Easter Monday.
UPON NOTING that if the father is able to spend time with the children in the Region C on any special occasion referred to in paragraphs 4 (b) to (f) (inclusive) hereof, then upon providing the mother with at least twenty-eight (28) days prior written notice the father shall spend time with the children on that weekend from the conclusion of school on Friday until the commencement of school on Monday.
5.Unless otherwise agreed between the parties in writing, handovers are to take place as follows:
(a)At the Town M McDonalds NOTING if the father relocates to the far northern area of South Australia, then handovers are to occur at the Town N Service Station; or
(b)At the children's school for time which commence or conclude at school.
6.The children are to have telephone or video contact with the non-resident parent on days and times as agreed between the parties, and in default of agreement as follows:
(a)On Wednesdays at 6.30 pm for up to 20 minutes; and
(b)On each of X's birthday, Y's birthday, the father's birthday and the mother's birthday at 6.30 pm for up to 20 minutes on each occasion.
7.Both parties shall be able to attend all events that allow for parental attendance involving either child including:
(a)Sporting fixtures;
(b)Extracurricular activities that allow for parental attendance; and
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent teacher interviews, canteen duties and social functions
UPON NOTING the mother is to inform the father of any such sporting or extracurricular activities that the mother enrols the children into, and provide a copy of the timetable/schedule of events prior to the commencement of each school term.
PROVIDED THAT the father provide the mother with at least 24 hours prior written notice of any event he intends to attend.
8.The parties shall ensure the other is informed of:
(a)Any significant medical problems or illnesses suffered by either child while in his or her care;
(b)Any medication that has been prescribed for either child; and
(c)Their current residential address, mobile telephone number and email address, and the names of any other persons who may reside with the child.
9.The mother and the father be at liberty to obtain from the children's school copies of all information usually sent to parents, at their own expense, including but not limited to school attendance records, notices, newsletters, school reports, notices of parent teacher interviews, photographs, and notices of all sporting and social events.
10.In the event either child suffers a medical or dental emergency the party with the care of the child shall notify the other at the earliest possible opportunity and the other parent shall be at liberty to visit the child at any facility at which the child may be receiving treatment.
11.The mother be restrained and an injunction is hereby granted from changing the children's principal place of residence from the Region C area of South Australia without the father's prior written consent or an Order of this Court.
12.The parties be restrained and an injunction is hereby granted restraining each of them from:
(a)Abusing, denigrating, insulting or harassing the other party to or in the presence of either child or allowing any third party to do so;
(b)Discussing the parties' separation, these proceedings or the allegations made in these proceedings with or in the presence of either child or allowing any third party to do so; and
(c)Filming or recording either child speaking about the other parent.
13.That all extant applications for parenting orders be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
This case began as one concerned with relocation but ends as one concerned with time spending arrangements for two children aged 8 and 5. This is because, after the conclusion of the evidence in the case, the father conceded the relocation issue.
As a consequence, the difficulty remaining in the case centres on the distance between the homes of the two parents concerned – Suburb H, a suburb of Adelaide, where the father lives; and Town B, in the Region C area of South Australia, where the mother and children currently live. The distance between the two homes is one of approximately of 200 kilometres.
Necessarily, the distance is such that it rules out easy spontaneous interactions between the children and their father and is too great to allow an equal time regime, which in an ideal world would be the father’s preferred outcome, for obvious logistical reasons, relating to the time of travel.
However, it is not too great to prevent time occurring on weekends, during school terms and for longer blocks of time during school holidays. Arrangements, of course, will have to be made to transport the children between the two locations and to exchange them safely at designated locations.
In these circumstances, the parties have exchanged proposals in respect of the required arrangements. From the father’s perspective, he aspires to spend as much time as possible with the children. As such, he seeks to spend the majority of school term weekends, with them, and more of the school holidays.
From the mother’s perspective, this would be an arrangement more centred on the father’s needs than those of the children and would not factor in the children’s myriad sporting and extra-curricular activities, which are centred on their home in Town B and the desirability of the children having quality time, with her and other of their maternal relatives, who live in Town B.
Regrettably, the parents involved in this case do not have an easy relationship with one another and do not communicate well. As a consequence, although it would be both sensible for them and indeed child focussed if they could come to some flexible and/or organic arrangement, to deal with the logistical issues of distance and travel, which would be responsive to their changing needs and those of the children, they are unable to do so. Thus, it falls to the court to make the necessary decisions for them.
How the court does this must be in accordance with the provisions of the Family Law Act 1975 (Cth),[1] primarily section 60B, which directs that the best interest of any child concerned are the paramount or most important consideration in regards to the parenting order, which the court must make.
[1] Hereinafter referred to as ‘the Act’.
Axiomatically, it is not in the best interest of any child for a stranger, no matter how well-intentioned, to make important decisions regarding that child, in lieu of a parent. In addition, such an individual may well be unaware of some idiosyncratic feature in the lives of the parents concerned, which may come to fore after the judgment is delivered. However, in some cases, it is unavoidable and the court must do the best it can.
The proper regulation of any free and open society requires that there be an independent and rational process of resolution of disputes arising between citizens, who in this case are separated parents. That is not to say such a system, though necessary, is helpful to children. Rather:
[W]hat is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests.[2]
[2] See Zahawi & Rayne [2016] FamCAFC 90 at [47].
These reasons for judgment are directed towards resolving the controversy between the parties regarding time spending arrangements and some other ancillary issues. As will be outlined in due course, the differences between the parties’ respective proposals are not great, relating to matters of days rather than weeks and issues of personal emphasis.
Necessarily each party’s proposal has its strength and weaknesses. As such, there can be no perfect outcome achieved in the case, which will be entirely satisfactory to both the father and the mother. As a consequence, I am fearful that, in resolving the dispute, as I must do, I will unwittingly create a sense that one party has been successful and the other has not, which will have the effect of perpetuating the conflict between them, which will not be helpful for their children, whom each party undoubtedly loves and wants the best for.
In this context, as I indicated to each of the parties, at the end of the eloquent submissions made on their behalf by their respective lawyers, I hope that each bears in mind the fact that though separated as parents, they remain linked together as parents and it is the best interests of their children that each of them endeavours to make arrangements work as best as possible without conflict or recrimination.
BACKGROUND
The parents concerned are Ms Rowan born in 1992 and Mr Hopkins born in 1990. Their children are X, born in 2014 and Y, born in 2017.
During their adolescence, both parents lived in the Region C area and attended the same high school but Mr Hopkins moved away as soon as he could. The parties reconnected in their early twenties and began their relationship, in 2012, when the mother lived in Adelaide and the father was residing in Melbourne. Mr Hopkins joined the public service.
During the course of their relationship, the family moved to City W in 2016, to where the father was employed. In 2018, the family moved again to Adelaide, living in rental accommodation here. They separated, in difficult circumstances, in late 2019.
Essentially, it is the mother’s position that she was subject to coercive and controlling family violence, during the parties’ relationship. It is also her case that she has always been X and Y’s primary carer. In both her written and oral evidence to the court and to the family report writer, Ms Rowan was able to provide details of a range of behaviours, which in my view, fall within the definition of family violence contained in section 4AB of the Act.
In late 2019, Mr Hopkins returned to City W, prior to being relocated to Country E, in 2020. He returned to City W in 2020 following the completion of his relocation. He left his employer in mid-2021 and relocated back to Adelaide in mid-2021.
Although Mr Hopkins is not at liberty to divulge what occurred whilst he was relocated in Country E, it seems time there was difficult and stressful. He concedes that it caused him to re-evaluate the priorities in his life. It is the effect of the father’s evidence that, in large part, he returned to Adelaide in order to ensure that he had a meaningful level of relationship with X and Y.
After living with his brother for a short period of time, Mr Hopkins obtained his current rented accommodation in Suburb H, at a cost of $400.00 per week. He is employed as a professional by P Company, and earns a salary just short of $2,000.00 per week. He has not re-partnered.
At the time of Mr Hopkins’s permanent return to Adelaide, Ms Rowan and the children were living in rented accommodation in Suburb Q, a suburb of Adelaide. She had part-time work as a retail assistant. It being the case that she had commenced her studies, which she was and is completing on a part-time basis.
Ms Rowan has deposed that, at the time, she was earning around $171.00 per week, augmented by social security in an amount of $700.00 per week and child support of $180.00 per week. Her rent was $344.00 per week.
In these circumstances – the parties both living in metropolitan Adelaide – they engaged in a process of family dispute resolution, overseen by the Legal Services Commission. In early August 2021, they were able to agree on a regime pursuant to which the father spent time with the children, during the day, on alternate Saturdays and Sundays, as well as on special occasions.
In November of 2021, they agreed that this time would transition to a full alternate weekend from the conclusion of school/daycare until 4.00 pm Sunday. These arrangements were to be reviewed in mid-February 2022.
This review never happened because, from the mother’s perspective, she was faced with an acute level of crisis in her life, when she lost her rental accommodation in Suburb Q and was unable to secure a suitable alternative rental. The period also coincided with the school holidays, during which she and the children visited her parents in Town B.
Ultimately, Ms Rowan elected to remain living in Town B, with X and Y, where they remain, at her parents’ home. She has secured another part-time job, as a retail assistant, at the R Company. She now earns $300.00 per week. Both children currently attend J School.
Given Mr Hopkins’s commitment to the children, demonstrated by his return to Adelaide and his aspiration to parent the children, with Ms Rowan in an equal time regime, the mother’s decision to relocate to Town B, was enormously controversial and difficult and precipitated the current litigation. I was called upon to adjudicate the issue, on an interim basis, in February of 2022.
At this stage, Mr Hopkins wished the court to make an order which would have compelled Ms Rowan to move the children’s place of residence back to the Adelaide metropolitan area so that the previously agreed regime of care could be implemented. For her part, Ms Rowan sought the court’s retrospective approval to relocate the children’s home to Town B.
It was her case that she had faced a significant level of emergency, when she had lost her rental accommodation and had done her best to obtain a suitable alternative place to live for her and the children but, despite her best efforts had been unable to do, primarily for financial reasons. In these circumstances, she decided to move in with her parents in Town B, where she could live rent free.
In her evidence, she deposed that she had visited approximately 40 rental properties between November 2021 and January 2022, having applied for approximately 27 and had also approached K Service for housing assistance but to no avail. Notwithstanding her efforts, she had not been able to find accommodation reasonably proximate to X’s school. In these circumstances, it was her case that she and the children either moved to Town B or become homeless.
Necessarily, Mr Hopkins was highly suspicious of the mother’s actions. It being his perception that she had not tried hard enough to find somewhere to live in the Adelaide area, where he asserted she had many friends and sources of emotional support. In addition, he asserts that the mother could have allowed him to assume care of the children but declined to seek his assistance to achieve her own ends. In these circumstances, he asserted that the move was a calculated one designed to reduce the degree of his relationship with X and Y and defeat his aspiration for an equal time regime.
It presented as a fiendishly difficult case to determine in a truncated interim hearing, particularly given the absence of any expert examination of the family in the form of a Family Report. The case itself had to be conducted in an atmosphere of extreme family crisis and mutual mistrust, which added to its difficulty. Ultimately, for reasons which I provided at some length, I decided that Ms Rowan had faced an emergency of sufficient moment to justify her and the children’s relocation to Town B.
I wrote as follows:
In my view, this is a difficult and complex case. I accept that there are significant elements of unilaterally in [Ms Rowan]’s behaviour. In this context, I must be careful not to easily condone actions which, in public policy terms, may have implications for other parents, who are considering moving a child or children far away from another parent.
I know from my own experience, as a judge of this court, that relocation cases, particularly unilateral relocation cases, precipitate very powerful and sometimes bitter emotions from the parents concerned. The various outcomes available cannot be twisted to provide an outcome acceptable to all concerned. As such, it is preferable that these issues be decided on a level playing field, before any move takes place.
[Ms Rowan] did not have [Mr Hopkins]’ approval to move to [Town B]. It was unlikely that such approval would have ever been easily provided. However, [X] and [Y]’s best interests remain the paramount consideration for the court. As such, it is not my function to punish [Ms Rowan] for her unilateral action, particularly if this will have some deleterious consequences for the children concerned.
In my view, the evidence does indicate that [Ms Rowan] was presented with a significant accommodation emergency. She did the best she could to respond to that emergency, in a child-focussed manner, which contained some reference to the children’s need to retain a meaningful level of relationship with their father.
As such, I am satisfied that the relocation was one which can be considered and contained in its implications and one which falls within the closely confined parameters envisaged by Justice Boland in Morgan & Miles. I do not consider that it would be in the children’s best interests if the mother is compelled to return to Adelaide given the obvious potential for uncertainly and disruption which surrounds such an option.
In addition, in all the circumstances of this case, including the as yet unproven issues relating to family violence, but the obvious fact that the mother has been the children’s undisputed primary carer up to this stage, I do not consider that it would be in [X] and [Y]’s best interest to move into their father’s care. This leaves the option of the maintenance of the current status quo, which I consider the best option for the children at this stage.[3]
[3] See Rowan & Hopkins [2022] FedCFamC2F 214 at [115] – [120].
A significant aspect of this determination was the fact that the mother had ensured that the children had interacted regularly, with their father, both before and after she had moved them to Town B. In effect, she had stuck by the earlier agreement which had inaugurated alternate weekly time. On her move, she had continued to drive the children to the previously agreed handover location, at the McDonalds in Suburb D, which is close to where Mr Hopkins lives. This arrangement has persisted in the period approaching eighteen months leading up to the final hearing.
One of the major difficulties, which existed at the time of the interim hearing (and which persisted when the final hearing began on 29 May 2023) was that the father’s preferred outcome, in the case, would have involved Ms Rowan having to parent the children in a location in which she did not want to live, effectively at the direction of the father, whom she characterised as having controlled her in the past or alternatively, it would have been necessary for Ms Rowan to give up her hitherto primary care of the children, in order to pursue her own life choices, independently of Mr Hopkins’s control, so he could live, with the children, where he wanted to live.
For obvious reasons, each of these various outcomes had obvious implications for the best interests of X and Y, particularly given that the incontrovertible evidence was that Ms Rowan had been their undisputed primary carer, whilst Mr Hopkins had been in City W and overseas, pursing his legitimate employment interests.
Necessarily, it would not have been conducive to Ms Rowan feeling that she had some degree of personal autonomy in her life and so was best positioned to provide care for X and Y, if it was her perception that she had to do as her former partner directed.
At the same time, I was aware of the importance, for X and Y, of maintaining a proper level of relationship with their father, in the context of each of their parents’ legitimate expectation that they could live how and where they each wished to live. As I observed at the time, this is in the nature of every case having a relocation aspect.
Necessarily each such case requires a close and delicate analysis of the competing claims arising in order to reach the outcome which seems, on balance, the one most likely to serve the best interest of the child concerned, without ignoring the right of parents to have freedom of movement in Australia and indeed overseas.
As part of the interim determination, I directed that a Family Report be prepared as expeditiously as possible. Ultimately, Ms U, a social worker by profession and an experienced report writer since 2011, was commissioned to prepare the relevant report.
Her report was released to the parties in early August 2022 and as indicated earlier, the case was then fixed for final hearing, in late May of 2023. The delay being occasioned by the fact that the case initially also comprised competing applications for the settlement of de facto property, which were ultimately resolved through a process of conciliation.
It is one of some 29 closely typed pages in length, in which Ms U went to scrupulous length not to trespass on the court’s responsibility to make findings of fact about matters in controversy between the parties, rather than for her to make any such findings.
In these circumstances, Ms U made a number of recommendations, which were posited on the basis of the court making various findings of fact. Necessarily, without wishing to be critical of anyone, this did not necessarily make her report easy to digest, particular for a lay reader unfamiliar with the nuances of family reports.
It is my impression that any such ambiguities and misunderstanding were resolved when Ms U gave her oral evidence to the court on 31 May 2023, which ultimately led to Mr Hopkins reaching the conclusion that his alternate preferred outcomes in the case, at its outset, namely either the court compel Ms Rowan to return to live with the children in suburban Adelaide so that a gradual process could be implemented in order to achieve a week about shared care arrangement or, in the event Ms Rowan declined personally to return to live in Adelaide, X and Y should live with him, were each untenable.
To Ms U, Ms Rowan indicated her willingness to allow Mr Hopkins to have 60% of each school holiday with the children if she was permitted by him to continue to live in Town B. She further described her experience of communicating with Mr Hopkins, following separation as horrible and characterised his attitude towards her as being hostile.
As previously indicated above, Ms Rowan raised issues relating to her exposure to family violence, at the instigation of Mr Hopkins, in the context of the initial interim hearing. These issues could not be resolved in the interim hearing but remained a live issue at trial given what each of the parties had said in interviews with Ms U and her subsequent recommendations to the court.
In her report, Ms U wrote as follows:
[Ms Rowan]’s allegations about [Mr Hopkins]’ coercive controlling abuse towards her, during the parties’ relationship and following their separation, are matters of evidence for the Honourable Court. In the report writer’s opinion, additional factors that add credibility to [Ms Rowan]’s allegations is the level of detail and context to her allegations. For instance, she was able to describe how [Mr Hopkins] allegedly harassed and digitally stalked her following the parties’ separation, how he psychologically abused her during the parties’ relationship which included denigrating her in the children’s presence and the presence of others, blamed her for his behaviours such a accessing online dating sites, and minimised his behaviours by referring to them as a joke. In the report writer’s opinion, these factors add credibility to the [Ms Rowan]’s responses.
In addition, [Ms Rowan] was able to recall timeframes of when [Mr Hopkins] had damaged property and when he was physically abusive or threatening towards her, the approximate frequency of the alleged physical abuse (including threatening behaviour) and that it reportedly emerged towards the end of the parties’ relationship. In the report writer’s opinion, these factors add credibility to [Ms Rowan]’s responses.
[Ms Rowan]’s responses indicated that the cumulative impact of [Mr Hopkins]’ alleged continuous psychological abuse, gradually eroded her self-esteem and self-worth. This appeared characteristic of someone who had been involved in an abusive relationship. Within a coercive controlling abusive relationship, there is a distinct power imbalance, whereby the perpetrator of violence/abuse holds the majority of the power. The power imbalance is asserted via abusive forms such as physical, verbal, sexual, financial, social and psychological abuse. [Ms Rowan]’s allegations suggested that [Mr Hopkins]’ abuse towards her, when the parties were in a relationship, was executed in a variety of forms.[4]
[4] See Family Report dated 1 August 2022 at [105] – [107].
As I indicated above, Ms U was at pains to avoid trespassing into the court’s role as the evidentiary fact finder in the case, given that it alone has the opportunity to assess the credit of witnesses being subject to cross-examination in the witness box. However, for obvious reasons, her impressions of the reliability of Ms Rowan’s evidence, regarding Mr Hopkins’s conduct towards her, cannot be easily discounted.
Ms U went on to opine that she did not consider that Ms Rowan was currently frightened of Mr Hopkins or that factors relating to his controlling behaviour were the motivation for her moving to Town B. Ms U’s impressions of Ms Rowan accorded with my own impressions of her. In my estimation, she was a truthful witness and more significantly an extremely impressive parent. She is a strong and emotionally resolved person.
In these circumstances, I am able to find, in accordance with Ms U’s opinion that any personal rancour held for Mr Hopkins or a desire to reduce his level of relationship with the children were not factors in motivating her move, with X and Y to Town B. Rather, I accept that the move was a response to her accommodation crisis and as a consequence of her having a place to stay with her parents.
That is not to say that Ms Rowan does not regard Town B as having many personal and practical attractions for herself and the children. Indeed the evidence indicates that it provides her and the children with a degree of emotional and practical stability, in terms of accommodation and familial support, which was lacking to her in Adelaide.
In her oral evidence, Ms U indicated her view that Ms Rowan was a resilient and robust person, who was able to stand her ground but remain child focussed, even though she found dealing with Mr Hopkins to be stressful and draining.
In this context, Ms U indicated she was personally impressed with the fact that, in what she regarded as challenging circumstances, both psychologically and logistically, Ms Rowan had done everything required of her to ensure that the children saw their father regularly on weekends, including doing the vast majority of the driving required.
In contrast, in her oral evidence, Ms U indicated she had some concerns about Mr Hopkins’s presentation to her for his family report interview. She described him as being grief stricken and in tears during the process. She queried whether he had some underlying mental health issues, such as depression and anxiety.
Ms U was also concerned that the level of his emotional response was perhaps disproportionate to the issues in the case, and he was justified in the level of his response. In contrast to the mother, Ms U did not consider that the father had moved on psychologically from the end of the parties’ relationship. This accords with my own impression of Mr Hopkins.
He presented as an emotionally intense and sensitive person, who approached the case with a strong sense of personal entitlement. I do not doubt his love for X and Y. I also accept that it was emotionally devastating that, so soon after he had returned to live in Adelaide, the mother and the children moved to Town B. Clearly this was an extremely difficult time for him personally given his recent experiences.
However, I remain concerned that he finds it difficult to bring a child focussed attention to the case but approaches it more from the perspective of the satisfaction of his own emotional needs and desires. In this context, I share the concerns expressed by Ms U in her report that he may not always be able to shield X and Y from the expression of his own strong personal feelings, which, from to time, contain some antipathy for the mother.
In her report, Ms U wrote as follows:
[X] and [Y]’s responses suggested [Mr Hopkins]’ continued propensity to make inappropriate comments that created for the children, emotional discomfort and particularly for [X], appeared to trigger for him an inappropriate sense of responsibility for [Mr Hopkins], anxiety, guilt and a likely sense of divided loyalties between the parties. This supported [Ms Rowan]’s concerns about [Mr Hopkins]’ preoccupation with his own needs which at times inhibited his ability or willingness to consider the children’s emotional needs.[5]
[5] See Family Report dated 1 August 2022 at [109].
However, of some significant note, she also indicated that Mr Hopkins’s behaviour in this regard had gradually decreased as the proceedings had gone on. In addition, it must also be regarded as significant that, after hearing her evidence, Mr Hopkins elected to re-focus his application towards contact arrangements rather than achieving equality of time, in his preferred location.
In sum, Ms U was of the view that the continuation of the current living arrangements for the children in Town B would enable them to thrive. However, at the same time, she conceded that this arrangement would have consequences for the level of Mr Hopkins’s ability to be involved in the children’s care and schooling.
In this context, Ms U accepted that there would be possible benefits for the children if Ms Rowan, either voluntarily or (conceivably) through the court’s compulsion, elected to move back to Adelaide with X and Y.
Given her positive view of the mother’s overall resilience, Ms U opined that Ms Rowan would be able to adjust to such a change but indicated this would come at a cost, not only to the mother but also the children, which would include the following:
·A potentially much diminished standard of living for the children, including the possibility of housing transience;
·Loss of familial support;
·A perception (which in my view Ms Rowan would inevitably adopt) that her personal autonomy had been infringed with a concomitant negative impact on Ms Rowan’s mental health with possible implications for her parental capacity and possibly her co-parenting relationship with Mr Hopkins.
In these circumstances, Ms U questioned whether this could be considered a realistic option. Given, Mr Hopkins change in stance, it is no longer on the table for the court. However, in my view, I agree with Ms U’s view that it was never likely to be an appropriate outcome in the case, particularly whilst Ms Rowan remains comfortably in Town B.
In this context, one of the complexities of the case emerges. The parties are each aged in their early thirties. They are in the prime of physical health. Ms Rowan, clearly an intelligent and well-motivated person, is in the second year of a tertiary course, which will equip her with a professional qualification with the potential to allow her to work anywhere in Australia and possibly earn a comfortable income.
At this stage, it is her evidence, which I accept, that she is happy in Town B and has no desire to move elsewhere. However, it would be imprudent to reject the contention that there is no possibility of her moving, given some change in her life circumstances, over the next decade or so. In addition, it is not beyond the bounds of possibility that there will be some dramatic change occurring in Mr Hopkins’s life in some form or other.
In this context, Ms U accepted that an outcome which saw the parties living closer together could possibly diminish the currently high levels of parental conflict between them, which would enhance the children’s sense of attachment and security with each of their parents. In these circumstances, she provided the following opinion, which essentially seems to have been the one on which Mr Hopkins and those advising him hung their hat at the start of the final hearing:
When considering what would ultimately likely be in the children’s best interests, it is the report writer’s opinion that ideally, [Ms Rowan] and the children returning to live in metropolitan Adelaide, would be the optimal option. This is with respect to the children’s development in terms of having the benefit of relatively equal parental input and opportunity to develop equally significant attachment relationships with their parents. This often creates the best possible foundation for the children’s healthy psychological, emotional and social development.
[Mr Hopkins] suggested that he and [Ms Rowan] relocate to the wider metropolitan Adelaide suburb of [Suburb V], given the possibility of increased affordable rental properties.
In the event of the Honourable Court, considering [Ms Rowan] and the children returning to live in metropolitan Adelaide to be in the children’s best interests, it is recommended that both parties relocate to a suburb or surrounding suburbs in wider metropolitan Adelaide, mutually agreed upon between the parties, within the next six months, ideally prior to the commencement of the 2023 academic school year.
It is recommended that once both parties’ have relocated to a mutually agreed upon area in wider metropolitan Adelaide, that could facilitate a shared care arrangement, the children’s overnight time with [Mr Hopkins] commence from three consecutive overnight periods in each alternate weekend and increase incrementally over a twelve- month period, until such time that the children are spending seven consecutive overnight periods with [Mr Hopkins] in each alternate week. In the report writer’s opinion, given that the children will be required to adjust to further change in their living arrangements, graduating towards an equal shared care arrangement considers their need for time, to adjust to change.[6]
[6] See Family Report dated 1 August 2022 at [125] – [128].
In my view, the key to understanding this passage is the use by Ms U of the word ideally. In her oral evidence, Ms U indicated that the parties’ current co-parenting relationship was very far from being an ideal one. The tenor of her evidence being that any successful move towards the implementation of a shared parenting regime could only be posited on the basis of the parties each voluntarily moving to live in the same location proximate to one another in order to bring it about.
In theory, this could include Mr Hopkins moving to live in the Region C – a possibility he has ruled out on the basis that he has no employment opportunities there and did not particularly like the district. Necessarily, it could also include Ms Rowan taking up Mr Hopkins’s proposal to move to the Suburb V – a possibility which she would not take up voluntarily at this stage of her life.
Accordingly, as Ms U conceded, in her oral evidence, this aspect of her report was theoretical in nature and did not reflect the reality of the current situation then confronting the parties. As both Mr Hopkins and Ms Rowan acknowledge, at the present time, communications between them are fraught with all manner of difficulties. Some of these difficulties can be summarised as follows:
·Ms Rowan’s perception that Mr Hopkins is hostile in his manner to her and presents himself in a needy way to the children as the victim of her control;
·Mr Hopkins’s perception that Ms Rowan does not agree to changing arrangements to allow him to have additional time with the children, when he is able to take it;
·Mr Hopkins’s criticism of Ms Rowan for being late at handover, when her explanation for the delay has been roadworks on the Suburb Q Highway.
In these circumstances, Ms U deposed, in her oral evidence, that her effective recommendation, as to the best option, at the present time, in regards to the on-going parenting of X and Y was contained in the following paragraph of her report:
In the event of the Honourable Court considering [Ms Rowan] and the children’s return to metropolitan Adelaide to be unrealistic with the implications of the return proving too logistically challenging for [Ms Rowan] which in turn could negatively impact her parenting capacity and the children, it is recommended that [Ms Rowan] and the children remain living in [Town B], [Region C] and the children spend time with [Mr Hopkins] on each alternate weekend, from Friday until Sunday and 60% of the all school holiday periods.[7]
[7] See Family Report dated 1 August 2022 at [134].
In my view, the evidence provided by the parties and Ms U, in the three days allocated to the final hearing, unequivocally indicated that it was unrealistic to consider compelling Ms Rowan to return to live with the children in the Adelaide metropolitan area or to shift their care to Mr Hopkins. The salient factors supporting this finding can be summarised as follows:
·The mother had been the children’s primary carer prior to and after the parties’ separation, including whilst the father had been away for significant periods of time;
·She had demonstrated herself to be an exemplary and child focussed parent;
·She had moved to Town B in a considered manner in the face of a legitimate level of emergency;
·She had demonstrated a commitment to the children maintaining a significant level of relationship with their father, which had been demonstrated by her willingness to drive them to Adelaide each fortnight and the fact that she had not suspended communications with the father, when advised to do so by police;
·The children had adapted well to the move and there were advantages to them remaining in Town B;
·A compulsory relocation of her and the children to Adelaide would result in Ms Rowan losing a significant level of her social capital and would impact detrimentally on her parenting capacity;
·The mother had been subject to coercive and controlling behaviour during the relationship;
·The outcome proposed by the father could not be considered at all congruent with any entitlement, which Ms Rowan had, to freedom of movement.
Mr Hopkins cannot be regarded as a wealthy person. However, he was not granted legal aid for the final hearing of the case. I am not sure whether this was on the basis of his financial circumstances or on the basis of an assessment of the overall merits of his case by the funding authorities. Ms Rowan was granted legal aid. As previously indicated, she is not in full time employment and is largely dependent upon social security.
In these circumstances, given the issues of family violence raised in the materials provided to the court, Mr Hopkins made an application to the court on 2 March 2023 that the court make an order pursuant to the provisions of section 102NA of the Act restraining each of the parties from cross-examining the other directly at trial.
It was his position, at the outset of the trial and to Ms U, that he had not committed any incidents of family violence in regards to Ms Rowan. In contrast, Ms Rowan provided a number of specific incidents in which she asserted she had been the subject of controlling and abusive behaviour, including denigration and damage to property.
If an order is made under section 102NA and a party affected by it remains unrepresented, he or she is entitled to apply for legal aid, from a specific Commonwealth Scheme to fund any necessary cross-examination.
Accordingly, the motivation for Mr Hopkins applying for such an order was so that he could obtain legal representation for the trial and maintain his stance that either Ms Rowan should live, with the children, in a location of his election or the children should live with him.
Section 102NA appears in Part XI, Division 4 of the Act under the heading Cross-examination of parties where allegations of family violence. The relevant section reads:
(1)If, in proceedings under this Act:
(a)a party (the examining party) intends to cross‑examine another party (the witness party); and
(b)there is an allegation of family violence between the examining party and the witness party; and
(c)any of the following are satisfied:
(i)either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii)a family violence order (other than an interim order) applies to both parties;
(iii)an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv)the Court makes an order that the requirements of subsection (2) are to apply to the cross-examination;
then the requirements of subsection (2) apply to the cross-examination.
In effect, what subsection (2) requires that where section 102NA(1) applies, the examining party must not cross-examine the witness party personally and such cross-examination must be conducted by a legal practitioner.
In the current matter, neither party had been convicted of an offence of violence involving the other party. There had not been a final family violence order and nor had a specific injunction under section 68B or section 114 of the Act been made. Accordingly, Mr Hopkins’s application turned on the application of the discretion conferred upon the court by section 102NA(c)(iv).
Section 102NA is a comparatively recent section. It places a further burden on the court to determine, in the absence of specific final family violence orders or injunctions for the personal protection of a party, whether a person should be prohibited from cross examining directly a former spouse. In this context, it is of some significance that the court’s discretion, in this regard, has fiscal implications for the public purse.
The apparent irony arising in the current matter being that Mr Hopkins, who denied ever having subjected Ms Rowan to family violence, sought an order pursuant to the section so that he would not have to personally cross-examine her because of her contested allegations of family violence against him.
Ultimately, I determined to make the order as sought by Mr Hopkins. At the time, I did not think that he was guided by any feeling of altruism (or indeed of contrition) so far as Ms Rowan was concerned. Rather, it seemed obvious to me that he was motivated by a desire to obtain legal representation so that he could achieve his desired outcome in the case. This troubled me.
At the same time, I did not consider that I could overlook what Ms U had indicated in her report regarding her view regarding the veracity of the reports made to her by Ms Rowan. In this context, I was mindful of the definition of family violence contained in section 4AB. It is behaviour which is violent, threatening of another family member that coerces or controls a member of that person's family or causes that family member to be fearful.
In addition, as I recently pointed out in Penwick & Wogan:[8]
One of the central features of family violence … is that it invariably occurs between people who share a domestic relationship and, as a consequence, it occurs behind closed doors and is not subject to obvious scrutiny by outside sources. In addition, its victims and indeed its protagonists are ashamed, embarrassed or fearful to tell others about it. So it is not necessarily the case that there will be police charges or that a person will seek out an injunction from the police or from the court to protect him or her, but issues of family violence remain significant in the case concerned.
[8] See Penwick & Wogan [2022] FedCFamC2F 1293 at [24].
I went on to indicate that I was (and remain) acutely aware of the possibility of the provision being open to manipulation and abuse with the concomitant risk that the public monies put aside to fund the scheme may be exhausted in providing for self-serving applicants to the detriment of more deserving applicants, who are at serious risk of being subjected to offensive and emotionally disabling cross-examination from those, who have abused them in the past.
However, at the same time, I recognised that the court has an obligation to recognise the importance the relevant legislation places on the court taking a proactive role in respect of family violence, including in the court context. Necessarily each such case requires a careful balancing exercise.
I readily concede that, in the present matter, I may not have achieved such an appropriate balance, given the fact that ultimately I found Ms Rowan herself to be a robust person, who although frustrated with some aspects of the cross-examination to which she was subjected, remained her composure throughout and, as indicated above, presented well under scrutiny.
At the end of the evidence in the case, given over three days, it fell to Mr McQuade, counsel for the father to make his closing submissions first. As I recall, he began those submissions with the observation that sometimes the actual hearing of the evidence in a particular case sometimes caused one of the participants to fundamentally reappraise his/her position in the case concerned and this was what had happened so far as Mr Hopkins was concerned.
In these circumstances, Mr McQuade indicated that his client was abandoning the larger proportion of the orders sought by him when he had opened his case and he now conceded that the children should continue to live with the mother in Town B. In these circumstances, as indicated at the outset of the reasons for judgment, the focus of the case shifted from issues of relocation to ones centred on how the children could best maintain a meaningful level of relationship with each of their parents, given the logistical and geographical issues implicit in the case.
In the main, these issues centred on the following issues:
·An interpretation of Ms U’s evidence;
·Ms Rowan’s concession that she was open to the children spending 60% of school holiday time with their father;
·Whether it was possible for issues of driving the children between Adelaide and Town B could be more fairly distributed between the parties;
·What was the best way for the father to be involved in the children’s many sporting and extracurricular activities which were centred on their home in Town B; and
·How could the mother achieve quality down time with the children on weekends, outside of the school/working week, during school terms, which would enable her to be involved in being able to attend their sporting and extracurricular activities.
Necessarily, these considerations involved a balancing of the parties’ competing aspirations within the overall matrix of what was in the best interests of the children concerned. The father’s main focus was on achieving as much time as possible, exemplified in his desire to spend two out of three weekends, during school terms, with the children, as well as the larger proportion of the school holidays.
From the mother’s perspective, such a proposal was not without its difficulties, given the preponderance of the children’s lives remained in Town B, where they engaged in many activities. In addition, for obvious reasons, she was also, not unreasonably, desirous of having some weekends with the children.
From my own perspective, I was concerned at how, in a practical sense, two out of three weekends could be formally configured, given the fact that most school terms are of ten weeks in duration and so such a period is not readily amenable to be divided by three.
In such circumstances, I was concerned that such an arrangement would lead to a lack of clarity in arrangements and so the potential for more rather than less conflict to occur between the parties, which would be inimical to the apparent consensus which had arisen between them about parenting arrangements for X and Y, given the radical re-framing of Mr Hopkins’s case.
I floated the possibility of there being a designated weekend each term, on which Mr Hopkins could travel to the Region C and perhaps stay at some suitable accommodation, such as a caravan park, and collect the children from after school on Friday until the commencement of school the following Monday, which would have the benefit of allowing him to have some degree of interaction with the children’s school and enable him to be involved with some of their sporting activities.
One of the principles underlying the objects of Part VII of the Act is that, wherever possible parents should agree about the future parenting of their children [section 60B(2)(d)]. This, of course, is a laudatory aim and is directed toward achieving a degree of durability in the long term arrangements for the care of children.
In this important statutory context, given all the practical issues arising in the case – particularly in regards to driving and handovers; as well as the degree of Mr Hopkins’s involvement in the aspects of the children’s lives centred on the Region C – I was anxious that these considerations not be rushed and that each party should have an opportunity to have some input into them with the hope that such an approach would aid the parties to reach an agreed position, which balanced their respective needs and the practicalities of their respective situations.
In these circumstances, I directed the parties to exchange written proposals. Regrettably any hope that such a process might assist the parties to reach an agreement proved to be misplaced. Accordingly, it falls to the court to make the necessary arrangements for the children concerned.
THE RESPECTIVE POSITIONS OF THE PARTIES
As directed, each party has filed a minute of the final orders sought. The father’s orders are as follows:
1.That the parties have equal shared parental responsibility for the children [X] born [in] 2014 and [Y] born [in] 2017 (hereinafter referred to as "the children").
2. That the children live with the mother in [Town B].
3. That the children spend time with the father as follows:
a.In school term, on the first, second, fourth, fifth, seventh, and eighth weekends, from 6:00pm Friday until 5:00pm Sunday
NOTING THAT in the event the father is able to spend time with the children on his weekend in the [Region C], he provide the mother with notice no less than 28 days prior to such time spending, and on those occasions time occur from the conclusion of school on Friday until the commencement of school on Monday;
b.In the short school holidays, from the conclusion of school on the last day of term until 5:00pm on Sunday on the middle weekend of the holidays;
c.In the December/January school holidays each year, for three blocks of nine nights, following the normal pattern of time spending as per the school term NOTING that special occasions detailed herein will be encompassed within the existing block time and not seen as additional time, AND FURTHER NOTING that time is as otherwise agreed between the parties.
4. That the children spend time with the parties for Christmas as follows:
a. In 2023, and each odd year thereafter:
i.With the mother from 3:00pm on 23 December until 3:00pm on 25 December; and
ii.With the father from 3:00pm on 25 December until 3:00pm on December 27.
b. In 2024, and each even year thereafter:
i.With the father from 3:00pm on 23 December until 3:00pm on 25 December; and
ii.With the mother from 3:00pm on 25 December until 3:00pm.
5. That the children spend time with the parties for Easter as follows:
a. In 2024, and each even year thereafter,
iWith the mother from the conclusion of school on Maundy Thursday, or 3:00pm if a non-school day, until 3:00pm on Easter Saturday;
iiWith the father from 3:00pm on Easter Saturday until 3:00pm on Easter Monday;
b. In 2025, and each odd year thereafter,
iWith the father from the conclusion of school on Maundy Thursday, or 3:00pm if a non-school day, until 3:00pm on Easter Saturday; and
ii.With the mother from 3:00pm on Easter Saturday until 3:00pm on Easter Monday.
6.That for Mother's Day the children spend time with the mother from 6:00pm the day before until the commencement of school on Monday the day after, or 9:00am if a non-school day.
7.That for Father's Day the children spend time with the father from 6:00pm the day before until the commencement of school on Monday the day after, or 9:00am if a non-school day.
8.For Y's birthday, the mother's birthday and the father's birthday the children have a video call with the non-resident parent for up to 60 minutes, at a time to be agreed, and in default of an agreement, at 5:00pm.
9.That for pupil free days and public holidays not otherwise detailed herein do occur as follows:
a.For Friday holidays, the children come into the care of the parent whose time is commencing ordinarily on that Friday, from 5:00pm on the Thursday;
b.For Monday holidays, the children's time with the parent they are in the care of that weekend be extended to 5:00pm on the Monday; or
c. Such other times as agreed between the parties in writing.
10.That handovers which do not occur at the school/kindergarten do occur at [Town M] McDonalds, or as otherwise agreed between the parties in writing.
11.That the children have telephone contact with the non-resident parent on days and times as agreed between the parties, and in default of an agreement on Wednesdays at 6:30pm for up to one hour.
12.That both parties shall be able to attend all events involving the children including:
a. Sporting fixtures;
b. Extracurricular activities that allow for parental attendance; and
c.School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent/teacher interviews, canteen duties and social functions;
NOTING that the mother is to inform the father of any such sporting fixtures or extracurricular activities that the mother enrols the children into, and provide a copy of the timetable/schedule of events prior to commencement.
13. The parties shall ensure that the other is kept informed of:
a.Any medical problems or illnesses suffered by the children while in his or her care;
b.Any medication that has been prescribed for the children;
c.Any social, school or religious functions which the children are to attend;
d.Their current residential address, email address and mobile telephone number and particulars of any other parties who may reside with the child; and
e. Any other matter relevant to the child's welfare.
14.That the mother and father be at liberty to obtain from the children's school copies of all information usually sent to parents, at their own expense, including but not limited to school attendance records, notices, newsletters, school reports, notices of parent/teacher interviews, photographs and notices of all sporting and social events.
15.That in the event the children suffer a medical or dental emergency the party with the care of the children shall notify the other at the earliest possible opportunity and the other parent shall be at liberty to visit the children at any facility at which the children may be receiving treatment.
16.That the parties be restrained and an injunction be granted restraining each of them from:
a.Abusing, denigrating, insulting or harassing the other party to or in the presence of the children or allowing any third party to do so; and
b.Discussing these proceedings or the allegations made in these proceedings with or in the presence of the children or allowing any third party to do so;
c.Unilaterally relocating the children's principal place of residence from [Town B] without the other's consent;
d. Filming or recording the children speaking about the other parent.
17. Any such further or other Orders deemed suitable by this Honourable Court
In Godfrey & Sanders[22] Kay J, in the context of these types of considerations, indicated as follows:
…[W]hat the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[22] See Godfrey v Sanders (2007) 208 FLR 287 at 298.
In all the circumstances of this case, I do not think that the making of the orders, in temporal terms, as sought by the father, can be assessed as having the potential to significantly add to the level of meaning in the children’s relationship with him. Rather, I think such an outcome is to be regarded more as a concession to his feelings rather than one directed to the service of [X] and [Y]’s personal best interests.
For the reasons provided, I do not think Ms Rowan’s move to Town B was calculated by any ill-will she held for Mr Hopkins or any hidden agenda on her part to reduce his influence in the children’s lives. She did what she considered best for them and herself, at the time. Ms Rowan has a perfectly legitimate right to exercise the right and wishes of any individual citizen, including a parent, to live and work where she chooses.[23]
[23] See Adamson & Adamson (2014) FLC 93-622 at 79,699, [59] – [60].
In these circumstances, I think I must be careful not to unduly reduce the appropriate level of interaction between the children and their mother on the basis that she has exercised this legitimate right to move, which, to his credit, Mr Hopkins has ultimately conceded. In my view, considerations of this type militate more in favour of the mother’s proposal than those of the father.
In my view, it will be beneficial to the children if they are able to spend equal period of time, during the school terms, with their mother in Town B, where they currently engage in a large number of activities. This is a state of affairs which is likely to persist for the foreseeable future. Essentially, at this stage, any orders, which the court makes, must recognise the reality of the children’s lives that each of them is based preponderantly in Town B with their mother, who is an excellent parent.
For these reasons, I propose to make the orders as sought by the mother. In my view, if the parties view it as likely to be of assist to them to attend course of post-separation counselling, this is a matter for them and not one which is generally amenable to coercion. In these circumstances, I do not see any utility for making such an order. It would not be helpful, if one parent wishes to attend and the other does not. In my view, this will only drive further conflict between the parties, particularly if there is a cost associated with such counselling.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and eighty-four (184) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 11 August 2023
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