Roy and Yutang
[2012] FMCAfam 1417
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROY & YUTANG | [2012] FMCAfam 1417 |
| FAMILY LAW – Block periods of time where parties communication is lacking – handover at Woolworths preferable to McDonalds Family Restaurant. |
| Family Law Act 1975, Part VII - ss.60B, 60CA, 60CC, 60DA, 61B, 61BA, 61C, 61DA, 65AA, 65DAA |
| Champness & Hanson (2009) FLC 93-407 Marsden & Winch (No.3) [2007] FamCA 1364 Goode & Goode [2006] FamCA 1346 Chapman & Barton v Tickner, Minister for Aboriginal and Torres Strait Islander Affairs (1995) 55 FCR 316 Mazorski v Albright (2007) 37 FAM LR 518 |
| Applicant: | MR ROY |
| Respondent: | MS YUTANG |
| File Number: | NCC 1950 of 2011 |
| Judgment of: | Myers FM |
| Hearing dates: | 23 & 24 October 2012 |
| Date of Last Submission: | 24 October 2012 |
| Delivered at: | Newcastle |
| Delivered on: | 24 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Duane |
| Solicitors for the Applicant: | Catherine Henry Partners |
| Counsel for the Respondent: | Ms Felicio |
| Solicitors for the Respondent: | Felicio Law Firm |
THE COURT ORDERS THAT:
The parents have equal shared parental responsibility of the children [X] born [in] 2003 and [Y] born [in] 2005.
The children live with the mother.
The children spend time with the father from the collection at school on Thursday until the commencement of school on Tuesday each fortnight commencing 25 October 2012.
On the children’s birthdays, the children spend time with the parent they are not already spending time with in accordance with these orders from 3.00 pm until 7.00 pm.
The children spend time with the mother from 3.00 pm until 7.00 pm on the 29 August and that any order inconsistent with these orders is suspended.
The children spend time with the father from 3.00 pm until 7.00 pm on the 13 February and that any order inconsistent with these orders is suspended.
If the children are not otherwise spending time with the father on Father’s day that the children spend time with the father from 6.00 pm on Saturday immediately before Father’s Day until 6.00 pm on Father’s Day and any order inconsistent with these orders is suspended.
If the children are not otherwise living with the mother on Mother’s Day that the children spend time with the mother from 6.00 pm on Saturday immediately before Mother’s Day until 6.00 pm on Mother’s Day any order inconsistent with these orders is suspended.
In all even number years the children spend time with father from 3.00 pm the day immediately before Good Friday until 5.00 pm the Saturday immediately before Easter Sunday and in all odd numbered years the children spend time with the father from 5.00 pm the day before Easter Sunday until 5.00 pm Easter Monday and any order inconsistent with these orders is suspended.
In all even number years the children spend time with the mother from 5.00 pm the Saturday immediately before Easter Sunday until 5.00 pm on Easter Monday and in all odd numbered years the children spend time with the mother from 3.00 pm the Thursday immediately before Good Friday until 5.00 pm the Saturday immediately before Easter Sunday and any order inconsistent with these orders is suspended.
In all even number years the children spend time with the father in the first half of all school holidays in term 1, 2, and 3 from the conclusion of school on the last day the children attend school until 6.00 pm on the second Saturday of the school holidays and in all odd number years the children spend time with the father from 6.00 pm the second Saturday of the school holidays until the commencement of school on the first day of term.
In all even number years the children spend time with the mother during term 1, 2 and 3 school holidays from 6.00 pm the second Saturday of the holidays until the commencement of the first day of term and in all odd number years from the last day the children attend school until 6.00 pm the second Saturday of the school holidays and any order inconsistent with these orders is suspended.
In December school holidays the children spend time with the father:
(a)In all even numbered years from the last day the children attend school until 6.00 pm on 14 January.
(b)In all December holidays where term 4 ended in a odd numbered year:
(i)from 12 noon Christmas Day until 12 noon Boxing Day and any order inconsistent with this order shall be suspended,
(ii)from 12 noon New Year’s Eve until 12 noon New Year’s Day and any order inconsistent with this order shall be suspended, and
(iii)from 6.00 pm on 14 January until the commencement of school on the first day the children are to attend school in term 1.
In December school holidays the children spend time with the mother:
(a)In all odd number years from the last day the children attend school until 6.00 pm on 14 January.
(b)In all December holidays where term 4 ended in an even numbered year:
(i)from 12 noon on Christmas Day until 12 noon on Boxing Day and any order inconsistent with this order shall be suspended,
(ii)from 12 noon New Year’s Eve until 12 noon New Year’s Day and any order inconsistent with this order shall be suspended, and
(iii)from 6.00 pm on 14 January until the commencement of school the first day the children are to attend school in term 1.
The father’s time with the children pursuant to order 3 shall be suspended during all gazetted school holiday periods.
All changeovers are to occur at school and in the event of holidays or non school times changeovers are to occur at the front internal counter of Woolworths Supermarket except in circumstances where Woolworths is closed and in those circumstances handover of the children should occur at the front door of McDonalds Family Restaurant at [W].
Each parent be at liberty to contact the children when they are living or spending time with the other parent each Tuesday, Thursday and Sunday between 6.00 pm and 6:30 pm, provided this is a day that the children did not see that parent. The phone call is to be initiated by the parent the children are not with and the parent the children are with is to make them available to take the phone call and provide the children privacy.
By consent the father be permitted to take the children outside the Commonwealth of Australia on an overseas holiday to Bali for a period of seven (7) days during the father’s time during the gazetted school holiday in term 3 for the purpose of father’s wedding in Bali and the father shall arrange for his parents, being the paternal grandparents to return with the children to the Commonwealth of Australia following the seven (7) day period.
Each parties is at liberty to take the children on an interstate or overseas holiday during times the children ordinarily live with or spend time with them in accordance with these orders. In the event of an overseas holiday, the parent causing the children to travel overseas is to provide an itinerary and contact details to the other parent thirty five (35) days before the date of departure.
Within fourteen (14) days of the date of the orders both parents to do all such acts and sign all such documents as required for them to obtain passports for both children.
In the event that a parent has the children’s passports in their possession and the other parents requires the passports in order for the children to travel overseas, the parent must handover the passports to the other parent twenty one (21) days before the date of departure.
Each party do all such things, sign all such instruments, documents, authorities and the like to ensure that:-
(a)Each party be at liberty to communicate directly with the children’s school teachers and other school authorities as to the children’s progress at school and any problems being experienced by the children and to enable the children’s school records to show each parent as a person to be contacted in the case of an emergency and to ensure that each parent is on the mailing list for copies of school reports and circulars as to upcoming events.
(b)Each party be at liberty to communicate directly with any treating professional as to any health related treatment being undertaken by the children without necessarily first referring to the other parent and both parties are to keep the other party informed of any specialist medical treatment or hospitalisation of the children.
Each party is to keep the other informed of all social engagements or appointments of the children scheduled to occur whilst the children are in the care of the other parent.
Each party is to keep the other informed of the enrolment of the children in any extra-curricular activity.
Each party keep the other informed of all medical, dental and other health related treatment beings undertaken by the children and provide to the other the identity of the treating professionals.
The parties notify each other of any change to their place of residence, and their telephone numbers and email address where they may be contacted by the other, within seven (7) days of having changed their place of residence, their telephone numbers and/or their email address.
The parties be restrained from denigrating the other party or the other party’s family in the presence of or within hearing of the children.
The parties be restrained from telephoning and sending text messages via mobile telephone to the other party unless it is an emergency in relation to the children or otherwise as agreed between the parties.
The parties be restrained from discussion these proceedings with or in the hearing of the children.
Each party be at liberty to attend the children’s school or extra-curricular activities in which the children or one of them is involved and which parents are welcome to attend.
Each party agree to facilitate the involvement of the children in any agreed extra-curricular activity.
IT IS NOTED that publication of this judgment under the pseudonym Roy & Yutang is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1950 of 2011
| MR ROY |
Applicant
And
| MS YUTANG |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
This is a parenting matter involving two children of a relationship between the parties, namely [X] born [in] 2003 currently aged nine years two months and [Y] born [in] 2005, currently aged seven years and five months as at the date of the hearing.
The matter was commenced by way of initiating application filed by the father in this court on 3 August 2011. The father sought in his application that the parties have equal share parental responsibility for the children, that the children live with the father each alternate week from Sunday 5.00pm until 5.00pm the following Sunday; essentially what can be best described as an equal time regime.
The father sought further orders with respect to such occasions as Christmas Day, Easter time, Father’s Day, Mother’s Day. The father also sought some specific orders with respect to the children attending scripture classes and orders for the children to be enrolled into the [C] School.
By October 2012 the father caused to be filed in the court an amended response. I have already considered the orders sought and the amended response which are set out as follows; that the parents have equal share parental responsibility for the children; the children live with the mother and spend time with the father from the conclusion of school on Thursday until the commencement of school on Tuesday each fortnight.
Specific orders were sought with respect to time being spent on the children’s birthdays from 3pm until 7pm, the children spend time with the mother from 3pm until 7pm on the 29th of August, and that any other orders are suspended. Orders with respect to the children spending time with the father on Father’s Day and mother on Mother’s Day, specific times with respect to Good Friday and Easter; with respect to spending time with the children for what can be best described as half of the gazetted school holidays including a three week period during the Christmas school holiday periods as well as
RECORDED : NOT TRANSCRIBED
The father sought time with the children on Christmas Eve and Christmas Day in what can be best described as an order whereby the children will enjoy spending time with both parents at least once each alternate year for Christmas morning. The father sought orders that changeovers occur at the [W] McDonald’s family restaurant in circumstances where the children were not being delivered or collected from the children’s school.
Further orders were sought with respect to the parties contacting the children. Specific orders were sought with respect to the father taking the children overseas for the purposes of attending the father’s wedding. During the course of the submissions during the hearing, it became apparent that indeed the parties had reached some agreement and the mother was now consenting to the father’s proposed order particularly that the father be permitted to take the children outside of the Commonwealth of Australia for a period of fourteen days commencing 6pm on the second Saturday of term 3 of 2013 to attend his wedding, that all other inconsistent orders be suspended, the father provide an itinerary and contact details to the mother 21 days prior to the holiday, and further that each party be at liberty to take the children on any interstate or overseas holiday during times the children ordinarily live with or spend time with that parent in accordance with the orders.
The father also sought additional orders with respect to the provision on passports for the children with respect to ensuring that the parties are able and at liberty to have direct contact with the children’s school and each party is required to keep each other advised of all social engagements or appointments of the children scheduled or else to occur during the period in which the children are spending time with that parent or living with that parent, that the parties are to keep one another informed as to health related issues, they are to notify one another of any change in their residence.
The parties be restrained from denigrating the other party or the other party’s family in front of or within hearing of the children; the parties be restrained from telephoning and sending text messages via mobile telephone to the other party unless it is an emergency in relation to the children; the parties be restrained from discussing these proceedings with, or in the hearing of the children, each party be at liberty to attend the children’s extracurricular school activities and each party agree to facilitate the involvement of the child in any agreed extracurricular activities.
At the commencement of the hearing of the matter, the father sought to rely on the following documents: the father’s affidavit sworn 8 October 2012; the affidavit of the father’s fiancée sworn 8 October 2012 namely Ms R; an outline of case document filed on 11 October 2012 and an amended response filed on 8 October 2012. I have read and considered the documents relied upon by the father in the proceedings.
The mother caused to be filed a response filed on 6 September 2011. In those orders the mother sought that the parties have equal share parental responsibility for the children, that the children live with the mother and spend time with the father in a regime that be best described as each alternate weekend from 6pm Friday until 6pm the following Monday.
Further orders were sought with respect to holiday periods particularly with respect to the Christmas period in which the children would not spend block periods of three weeks with their father, but instead the Christmas school holiday periods spent by the children with the father would be broken up.
On 8 October 2012 the mother caused to be filed an amended response to initiating application in the court. The mother sought within that response amended final orders as follows; that the mother and father have equal shared parental responsibility for the said children; that the parties have sole parental responsibility for the day-to-day welfare, care and development of the children whilst they are in their care; that the children live with the mother; that the children spend time with the father each alternate weekend from 6pm Friday until 6pm the following Monday with such first weekend to commence on 26 October, each alternate Saturday from 6pm until 6pm Monday; the first such weekend to commence on 4 November 2012; half of the gazetted school holidays in terms 1, 2 and 3 and in each year from 2pm on 25 December until 6pm on 30 December each year.
The orders sought provide that the children would spend each and every Christmas morning and Christmas Eve with the mother. The mother additionally sought orders with respect to the Easter long weekend, orders with respect to the children spending time with the father on Father’s Day, the mother on Mother’s Day and the children on the parent’s birthday in circumstances where the children were not otherwise spending time with that parent.
The mother sought orders that the handovers of the children are to be facilitated by the parties exchanging the children at the Woolworths supermarket at [U], New South Wales. During the course of the submissions, counsel for the mother conceded that Woolworths is a place that is not open 365 days a year and in those circumstances the mother sought orders that handovers take place at the Woolworths supermarket at [U] when the Woolworths supermarket is open, and in circumstances where the Woolworths supermarket was not open that the handovers be facilitated by the parties attending upon the McDonald’s family restaurant at [W].
The mother sought additional orders with respect to there being liberty for each parent to telephone the children between the hours of 6pm and 7:30pm each Tuesday, Thursday and Sunday when the children were not otherwise living with that parent. Orders were sought allowing the parties to contact and communicate with the school and contact and have communication with any of the children’s treating health care professionals.
Orders were sought that the parties are to inform the other of all social engagements or appointments which are scheduled to occur for the children once the children are in care of the other parent, and each party is to keep the other involved of the enrolment of any extracurricular activities.
Orders were sought with respect to the parties being informed of all medical, dental and other health related treatments being undertaken by the children, and the parties are to notify the other of any change of their current residential address. Further orders were sought restraining the parties from denigrating one another or the other’s family in the presence of or within hearing of the children and orders were sought restraining the parties from telephoning and sending text messages via mobile telephone to the other party unless it’s an emergency in relation to the children, and that the parties be restrained from discussing these proceedings with the children.
Further orders were sought that each party is at liberty to attend the children’s school or either of the children’s school sporting events and that each party take the children to all extracurricular activities when the children live with that party. A further order was sought that the father does not question either child about the mother.
At the commencement of the hearing the mother sought to rely on the following documents: a) an amended response filed on 8 October 2012, b) an affidavit of the mother sworn 8 October 2012, c) an affidavit of Ms E sworn 6 September 2011, d) an affidavit of Ms L, a solicitor, sworn 5 September 2011 and e) a case summary document dated 15 October 2012.
I have read and considered the documents relied upon by the mother at the commencement of the hearing. The mother additionally relies upon the family report of the family report writer, Ms D. I have read and considered the family report prepared by Ms D. The parties caused to be tendered during the course of the hearing various material. I have read and considered the material tendered during the course of the hearing by the parties.
It is apparent that the mother was born on or about [date omitted] 1967 and the father on [date omitted] 1973. On [date omitted] 1978 the father’s new partner, Ms R, was born. It is apparent that on or about [date omitted] 1998 the parties married. On [date omitted] 2003 [X] was born and on [date omitted] 2005 [Y] was born. It would appear that the parties separated on or about 21 February 2010 and that the parties’ relationship began to deteriorate sometime between August 2010 until November 2010.
The mother expressed a view to the family report writer that the father had commenced an affair and/or new relationship prior to the parties finally separating. The Court notes this is denied by the father. In any case, the court does not consider it relevant as to whether the father had commenced a new relationship with any person prior to the parties separating. The parties have separated and have now moved on with their lives. It is apparent that on or about 10 November 2010 the children were introduced to the father’s new partner, Ms R.
On or about 1 December 2010 the mother alleges the father assaulted her. The father disagrees with this fact and it was put to the mother during the course of cross-examination that the mother had sought to enter into the father’s residence, or I should say property, that the father had sought to stop the mother entering his residence, that he had made it clear that he did not wish her to enter, that he had held his arm out towards the mother, that she had been hit in the stomach by the father’s arm, and that the mother then hit the father.
For the purposes of these proceedings the court is unable to make any finding as to the facts that actually occurred during what is alleged to be an assault. The court does not take the attitude that there is an ongoing history of family violence in the matter. The parties have presented two what could be described as opposed stories of what took place. In circumstances where there is no real neutral evidence about what may have occurred, the court can simply make no finding.
It is apparent that on 13 December 2011 a divorce was granted to the parties that took effect on 14 January 2012. On or about December 2010 the mother purchased a property at [U] and on January 2011 the father commenced co-habitation with Ms R. On 3 August 2011 following the parties attempting mediation, the father commenced proceedings before this court and on 6 September as outlined previously the mother caused to be filed her response.
On 7 September 2011, being the first return, the interim terms of settlement were filed by consent. On 5 March 2012 a family report was released in the matter, the matter came before the court for hearing on 22 October 2012 for a period of two days.
RECORDED : NOT TRANSCRIBED
The orders made by consent on 7 September 2011 provide that the parties have equal share parental responsibility for the long-term care, welfare and development of the said children, that each party have parental responsibility for the day-to-day care, welfare and development of the children; that the children live with the mother and spend time with the father each alternate weekend from 5pm Friday until 6pm Monday; the first such week to commence on 16 September 2011 and to recommence on each term on the first weekend in even numbered years and the second weekend on odd numbered years, each alternate Sunday from 6pm until 6pm Monday; the first such occasion to commence 11 September 2011 and to recommence each term on the second Sunday in even numbered years and the second Sunday in odd numbered years, for one half of the gazetted school holidays of terms 1, 2 and 3 on an odds and evens numbered basis.
During the holidays commencing at the conclusion of term 4, 2011 from 6pm on 20 December 2011 until 4pm on 24 December 2011, on 12:30pm on 25 December until 6pm on 28 December, and then time during January. The orders provide that the father not have what can be best described as a block three week period with the children during the Christmas school holidays.
Further orders were made with respect to time taking place between the children and father on Father’s Day, between the children and mother on Mother’s Day, orders with respect to Easter and the children’s birthdays. Notably order 6 provides that the parties facilitate the handover of the children by attending upon the McDonald’s family restaurant in [W].
The Orders provide that each party be at liberty to telephone the children whilst they live in the other parent’s care between 6pm and 7:30pm each Tuesday, Thursday and Sunday provided that is a day when the children will not spend time with or live with that parent. Orders were made enabling the parties to communicate directly with the children’s school and communicate directly with the children’s treating health care professionals, that each party was to inform the other of all social engagements or appointments of the children scheduled to occur whilst the children are in the care of the other parent.
Each party was pursuant to the orders required to keep the other informed of the enrolment of the children in any extracurricular activities, that each party keep the other informed of all medical, dental and other health care related treatments being undertaken by the children, the parties notify one another of any change of residential address within seven days, non-denigration orders that the party not denigrate the other party or the other party’s family within hearing or within the presence of the children, that the parties be restrained from telephoning and sending text messages via mobile phone and the parties be restrained from discussing the proceedings with or within hearing of the children, the parties be at liberty to attend the children’s school or extracurricular activities and the parties agree to facilitate the involvement of the children in any agreed extracurricular activities.
The Court noted that it was the intention of the parties that they personally attended changeovers unless prevented by emergency from doing so, and the parties acknowledged by way of notations that should one of them being unable to attend at a handover they would ensure one of their nominees attended.
Contained within the father’s affidavit sworn on 8 October 2012 is information with respect to the party’s relationship information with respect to his current working arrangements, most notably that the father is currently employed as [omitted] and that he has been working as a [omitted] for some 18 years; that the father is currently in a de facto relationship with his partner, Ms R, that the parties entered into a relationship in, on or about mid-2010, that the children first met Ms R in November 2010, that the parties are engaged to be married next year and are expecting a baby together in November 2012 and the court notes Ms R, having appeared before the court to give evidence, is indeed quite pregnant.
The father deposes that he currently resides in a four bedroom home on a three acre property in [omitted], and that he and his partner purchased the property in approximately May 2011. The Court notes that the postcode for the father’s property and that of the mother’s is, I believe, the same, and that the party’s property is not particularly far in distance away from one another, being some probably 15 to 20 minutes drive between the two households.
The father deposes that Ms R is currently 34 years of age, at the time of swearing the affidavit she was employed fulltime as a [omitted]. The father deposes since the birth of the children up until the time of separation he was involved in their daily lives assisting them with their development in speech, reading, learning and other activities including undertaking numerous domestic duties and chores, included in bathing, dressing, attending to the children during the night and taking them to sporting events.
The father deposes that following separation the parties had a, what can be described by him as a, “flexible arrangement,” but that this flexible arrangement deteriorated after August 2010 and particularly in around November 2010 once, in the words of the father, “the children were introduced to Ms R,” the arrangements began to dramatically deteriorate.
The father deposes that each of the children has their own bedroom at the home he shares with his partner, which have been decorated, the children have their own personal belongings, clothing, toys and photographs of the family including photographs of their mother. The father deposes that he spends time with the children doing their reading and writing homework, he will often go outside to play with the children with the dogs, play in the yard, ride push bikes, go for walks, visit friends in the neighbourhood, feed the chickens or play games in the yard.
The father deposes that he and his partner have an 18-month-old puppy, [name omitted], they have a German Shepherd called [name omitted]and a budgie called [name omitted], and eight chickens. The father deposes that at night when the children are spending time with them, Ms R or he will shower the girls and get them ready for bed, most nights the children will do some reading before bed, if the children do not have their school reader they will usually read books that the father and his fiancée have bought for the children.
The father deposes that when the children say goodnight they tell him how much they love him, and the children are both very affectionate to the father and also his partner. The father deposes that in the morning in what he describes as “without fail”, [X] would wake up at 6:50am in the morning and come and jump into the father and his partner’s bed to have a cuddle and that soon after [Y] would follow.
The father deposes that in his work with [omitted] he has what he describes as a flexible rostering scheme. The father annexes to his affidavit and marked with the letter ‘A’, a copy of the letter written by his employer confirming what the father describes as a flexible arrangement, and indeed I have read and considered Annexure A to the father’s affidavit is indeed a letter prepared by [omitted], it’s addressed to Brazel More Lawyers, attention Kathy Matri.
The letter is signed by [name and position omitted] dated 2 July 2012 and provides that staff members at [omitted] are subject of a formal, flexible rostering system; the system allows for working hours to be ordered for operational needs of [omitted], at the same time this system factors in a great number of days off duty. Under the arrangements all staff work on the basis of a four day working week with one week day per week off duty, recurrent leave or RDL, and each weekend off duty as a rest day. Generally all staff work within a band of flexible hours between 6am and 6pm each day.
The letter goes on to state that Mr Roy is subject to the rostering system described at 1, the particular weekday he has off is subject of negotiation between Mr Roy and his supervisor. The letter suggests the father’s work will allow latitude in arrangements to allow for staff’s private needs provided the operational needs of the command are met. The letter goes on to state at paragraph 3, “generally speaking, staff members are provided flexibility in respect to family needs. This may amount to the particular weekday they have off, flexibility in starting and finishing time or flexibility in annual leave dates. It is possible for staff to accumulate RLD’s within a rostered period of six weeks for special circumstances, or to take a single annual leave day as stated, however my priority is for the operational needs of [omitted] to be met before flexibility is considered.”
Having heard the evidence given by the father during cross-examination, having read the matters as contained at paragraph 25 of the father’s affidavit, having regards to the letter set out by the father Annexure A to his affidavit, I form the view that the father indeed does have some flexibility in his working arrangement that would at least allow the father to spend time with the children in accordance with the proposals as set out in the orders sought by the father in his amended initiating application.
The father describes what can best be surmised as a litany of complaints with respect to problems occurring and recurring between the parties initially at changeovers, that the children have, at times, become distressed, and that there is what can be best described as poor communication between the parties.
The father deposes that there are no difficulties that are occasioned when the father delivers the children to the McDonald’s family restaurant or indeed comes to collect them from the McDonald’s family restaurant, and it is indeed clear that the father is opposed to any change to the orders whereby the children will be delivered to or collected from the Woolworths supermarket at [U].
The father was asked questions during the course of cross-examination with respect to his opposition to the Woolworths supermarket. The father gave an explanation that he was concerned that the place at which the children would be handed over inside Woolworths is in front of a cigarette counter within the supermarket. The father did, however, concede that it was within his knowledge that cigarettes are not displayed for sale in counters, that they are locked behind a door and they are not visible and, as such, it would be unlikely that the children would be able to see any cigarettes if the handover were to take place at the Woolworths supermarket.
The father continues in his affidavit to describe what can be best surmised as problems with respect to clothing being handed over between the parties, and indeed the father complains that the children are handed over often in their school uniform or very old clothing, usually a tracksuit pants and tops.
The father gives evidence at paragraph 36 as to those matters that occurred on or about Friday, 11 May 2012 when the father deposes that [X] spent time with him and was crying because, in the father’s words, she had an argument with the mother and Ms C, being [X]’s maternal grandmother.
The father deposes that [X] said words to the effect that she got money from Nan to use at the Mother’s Day stall at school. “I bought Mum something and also bought [Ms R] something. During class I made a card for each of them. When I got home, Nan asked me what I had bought. I tried to hide [Ms R’s] card and present because I was scared I would get into trouble. Nan found it and gave it to Mummy. Mummy threw the card and present on the lounge. They both yelled at me and said ‘you are not to buy anything for that woman’. Mummy said that I ruined her whole Mother’s Day. I told Mummy that I was only a kid, I am just trying to make everybody happy.”
The father deposes that he asked [X] where the card was and gift was and [X] said, “Mum threw it in the bin.” During the course of the mother’s cross-examination, she did not concede that her mother was present but did concede that she did indeed take the card and also gift from [X], and that she did indeed throw the card and gift in the bin. During the course of the mother’s cross-examination she became what could be best described as fixated by the fact that the father had not provided any money to [X] to buy Mother’s Day gifts.
It was apparent that the mother was distressed by the event but what is more apparent is the mother was unable to unwind from the fact that she was the parent, [X] was only a child, and that the mother’s actions would indeed have, in the view of the court, been distressing, probably far more distressing, to [X] than it would have been to the mother.
The father deposes that there is a baby due [in] 2012 and at paragraphs 38 to 40 gives evidence with respect to the information or the recount of conversations from the children particularly that on 18 June 2012 [Y] said, “Nanna always says that the baby will only be my half brother or sister.” The Court notes that the maternal grandmother did not give any evidence in the proceedings. The mother denied during the course of cross-examination that this had been said.
It was put to the father during cross-examination that there would be what could be described as an upheaval in the father’s household at the time of the father’s new baby’s birth and the children may suffer from what can be described as separation anxiety and may ultimately become jealous of the father spending time with the new baby, who the court notes will be a younger sister. The court is not satisfied that the father or his partner lack insight into what may occur during the arrival of a new baby into the household, and the court, having heard the father’s evidence, is satisfied that the father will do what is necessary to ensure that any transition in the household whereby there is a new baby introduced will hopefully be a smooth one.
The father further opines that there is poor communication between the parties, that the mother refuses to communicate. Having heard the father’s cross-examination though, it is apparent that the father has, at times, become annoyed, become agitated and/or cranky. The Court particularly notes the father conceded that he called the mother a “Houso” and “moron” which the court finds would have no doubt caused distress to the mother and upset her.
At paragraphs 51 to 54 the father deposes as to what occurred at the father’s home on or about 1 December 2010 and denies that he hit the mother in the stomach. Having previously considered the matter, the court finds that the court is unable to make any finding as to whether there was family violence perpetrated by one party on the other or indeed whether it was mutual violence perpetrated on one or another. The court is satisfied, however, that it’s an isolated event, and hopefully one that will never reoccur.
The father deposes again as to problems with communication, but particularly with respect to the children making negative comments to him and his partner about matters that have been stated by the mother and/or maternal grandmother. Particularly the father deposes that the children have said, “Mummy says you’re mean.” The father gives evidence about having asked the children questions and the children placing their hands over their ears and the children advising the father that they had been told by the mother to place their hands over their ears if the father asks them any questions.
The Court is satisfied that the father probably has asked the children various questions and that the children may, in circumstances where they are aware that there is a conflict, find themselves possibly in the position where they feel uncomfortable or feel some discomfort in that they may form the opinion that they are being asked to divide their loyalties between the parties.
It would be in the best interests of the children if the father would do whatever is necessary to ensure that the children do not feel as though he is continually questioning them about perhaps what is happening in the mother’s household, or events taking place at the mother’s home. Hopefully with the passage of time, it may be that the children and both parties will be able to relax somewhat and the children will feel free to discuss what is occurring in each other parent’s home in the other party’s home.
The father deposes to an event that took place on or about 30 September 2012 when his grandfather passed away. The father deposes that he emailed the mother seeking her consent to take the children to the grandfather’s funeral, and it is apparent having heard the evidence of the father and that of the mother during cross-examination that the mother refused to allow the girls to attend the funeral on the basis that 11 hours away from the mother was simply too long. The court is disappointed that the children were deprived of an opportunity to attend the father’s grandfather’s funeral that would be the children’s great-grandfather’s funeral. The Court is of the view that 11 hours away from the mother is not too long in circumstances where they would have been available or able to attend upon a close relative’s funeral.
The father deposes that he thinks it is important that the children should be provided with the opportunity to spend Christmas mornings with him, at least on an alternate year basis. The father deposes that he has no intention of denigrating the mother in front of the children and will continue to encourage their relationship. The father deposes that the children are allowed to have pictures of their mother at their home, they can openly speak about things they do with her and things they enjoy doing at her home.
It is hoped with the passage of time that indeed the children will feel comfortable to be able to express not only what goes on in the other parent’s home but express delight in being able to spend time with the other parent. Having heard the father in the witness box, I have formed the view that he was a forthright witness who was prepared to answer questions in an open and honest seeming manner. I found that the father was not evasive, and he was impressive in the manner in which he gave evidence during cross-examination, particularly that he made concessions, even if such concessions were made that did not assist his case.
Again it was confirmed that the father gave evidence that he had indeed called the mother a “houso” and a “moron”, and I suspect that the father has, from time to time, become upset and spoken loudly and also badly towards the mother. The court suspects that there is a serious level of distrust by the father towards the mother and that this is compounded by the poor communication that the parties experience with one another.
Having read the father’s affidavit, and having heard his evidence during cross-examination, it is likely that there is a significant conflict between the parties and that this conflict will probably reoccur in front of the children should the parties be brought into contact with one another frequently at handovers.
As stated previously, I have read and considered the affidavit of
Ms R. I particularly note that she deposes she started a relationship with the father on or about June 2010 and she states that from the moment she met the girls they have gotten along very well. Ms R deposes that she is pregnant and due to have a baby [in] November 2012 and that both [X] and [Y] are excited about this, as are the father and her.
Ms R deposes that every moment [Y] gets she is whispering to her little sister or talking to her belly and deposes that [Y] was upset by the fact, and she states that it is a fact that the mother, Ms Yutang, and the grandmother, Ms C, have told the children that the baby will not be their real brother or sister, even though [Y] believes this to be so and so does Ms R. Again, the court is not able to make any finding about whether or not the mother and/or the maternal grandmother have told either of the children that in fact the new child will not be their real brother or sister. Hopefully with the passage of time all parties will come to realise that the child yet to be born will indeed be the younger sister of both of the children.
Ms R deposes that the parties got engaged on or about 28 July 2012 and that [X] and [Y] were excited by this fact; that the children have drawn pictures and made cards, and organised their flower girl outfits and asked the father and Ms R to re-enact their proposal. Ms R deposes that [X] and [Y] are always fun and full of love, that they are very open and will always ask for cuddles and say “I love you, [first name omitted],” that [Y] recently asked if she could call [Ms R] ‘Mum’ and that Ms R told [Y] that she only has one mummy, and that that mother was Ms Yutang, and that she could never take that away, and that rather than calling her Mummy they should call her [first name omitted].
Ms R deposes that she’s never met two more beautiful girls and she believes she has an amazing relationship with them. Having read the family consultant’s report, having seen the card tendered during the course of the proceedings, having read the matters deposed to in
Ms R’s affidavit, the court forms the view that indeed the two children, [X] and [Y], have a wonderful relationship with Ms R, and is hoped that in some time that the mother will be able to see the benefit that is, there being a substantial benefit that she has two wonderful children who share a special bond with the father’s new partner.
Indeed, there are many occasions where parties become before this court in circumstances where children are being abused by a new partner of one of the parents. Gladly, this is not the case here and it is hoped that both parties will realise that they should be grateful of this fact.
Ms R deposes that she has attempted to speak with the mother a number of times and that she does not try anymore as things have become very awkward and have caused anxiety for both the father and her. It is apparent that the mother and Ms R have no communication and they have no relationship and indeed other than seeing one another it can be best described that the mother and Ms R have never, properly met or been introduced to one another.
It is hoped that following the making of orders in these proceedings that Ms R and also the mother will see the benefit of introducing themselves to one another and do whatever is possible and capable to ensure that the children realise that the father’s new partner, Ms R, and the mother have an amicable working relationship. If the parties are able to do this, this will only certainly benefit the two girls.
Again, Ms R echoes some of the complaints made by the father in his affidavit, namely that the children recall or recount to Ms R and the father that the mother says nasty things about them. It is apparent that Ms R is also embroiled in the conflict that exists between the father and the mother in the proceedings.
When questioned about the birth of a new child coming into the household, Ms R gave evidence to the effect that she had not thought of some issues that may occur, particularly whether there might be sibling rivalry. She was honest, open and frank in the manner in which she answered those questions. The Court is satisfied, however, having regards to the matters set out in Ms R’s affidavit, and having heard Ms R in cross-examination that Ms R will do whatever is necessary to find a way to ensure that the impact of a new child in the father and her household is minimised upon the children, and that the children see it as a benefit that there is a new sibling coming into their household.
As stated, The Court found that Ms R was forthright as a witness, open and appeared honest in the answers she gave, including making concessions that did not support her case. In all, the court was satisfied and impressed by the evidence given by Ms R.
The court has read and considered Exhibit B in the proceedings being an envelope and also, letter and a drawing to the attention of “To [Z]” the letter has written on it three exclamation marks, crosses and noughts, and words “Made by your big sister, [X].” Having regards to the drawing by [X] contained within a pink envelope with smiley stamps and love hearts to [Z], having heard from Ms R to the effect that both children refer to the unborn baby as [Z], the court is satisfied that indeed the children are looking forward to the event of Ms R having a baby and bringing what can be best described as a new sister in the father and Ms R’ household.
As previously stated, I have read and considered the affidavit of the mother in the proceedings. The mother deposes that she is currently employed as an [omitted] in Sydney in [omitted], that she has been employed at that company for a period of 17 years and that she is employed on a permanent part-time basis for two days per week with an additional eight hours per week on a temporary basis working from home.
The mother deposes to her being what can be only described as the primary carer of the children during the early part of their life. The mother deposes to her concerns that the children have expressed to her, particularly [X], that she wishes that the father would stop questioning her about the mother. As previously set out, the court has formed the view that the children have probably become distressed by either and/or both parties questioning the children, but particularly the father questioning the children.
The father indeed conceded that he had questioned the children and it may be that the father needs to review the manner in which he discusses issues with the children, particularly questioning about what might take place in the mother’s household, and indeed that perhaps the father should not question the children at all, and if the children wish to discuss anything about what has taken place in the mother’s household they should be free to do so without any prompting or questioning.
The mother deposes at paragraph 15 of her affidavit that she considers the father has psychologically harmed the children and the mother sets out what can be only described as a chronology of complaints about the father and the father’s behaviour, and particularly incidents that have taken place when the parties have come into contact with one another, particularly at the children’s swimming pool, at the children’s sporting events and it would appear on other occasions when the parties have come into contact with one another.
The mother deposes to an inability of the parties to reach any compromise on making any arrangements in circumstances, for instance on 6 August 2011, when the mother deposes she forgot to pack [X]’s netball dress. The mother deposes that that was a mistake and the court accepts that indeed it probably was a mistake that the mother did indeed forget to pack the netball dress. It is apparent that the father does blame the mother for the failure to pack and that it was a deliberate act. In any case, [X] did not attend netball in circumstances where the father decided to do something else with her.
What is apparent is that the parties are unable to communicate but are also unable to cooperate with one another with respect to doing such things as the provision of clothing to one another, and indeed the court notes that during the course of the mother’s cross-examination she conceded, that the children were dressed in what can be described as tracksuits for the purposes of handover.
The mother does describe, however, the circumstances where there have been an exchange of clothes, particularly underwear, and that the exchange of underwear simply takes place on the basis that the children arrive in underwear and leave in underwear. The Court is not satisfied that the mother has returned dirty underwear to the father.
The mother deposes that the children are progressing well at school, both socially and academically, and that the children have expressed to her that they are happy with what is described at paragraph 16 of the mother’s affidavit, the “current arrangements” with [X] often saying, “I’m happy the way things are.” The mother deposes that [X] has stated she does not like changeovers being at McDonald’s and that she wants to have changeovers to take place at Woolworths in [U].
During the course of cross-examination questions were asked of the mother as to why she opposed McDonald’s. The mother gave open and frank evidence that particularly [Y] requests that she be entitled to eat McDonald’s at any time she attends McDonald’s, and that in circumstances where the mother has refused to allow [Y] to eat McDonald’s [Y] has put on what the court might describe as a treat. The Court is satisfied that the mother’s reasoning for not wanting handovers to take place at McDonald’s is a genuine one, and the court should take heed of the fact that it is probably not in the children’s best interests that they eat McDonald’s every time they see their parents or at every handover they attend.
The mother gave evidence during the course of the cross-examination that she does shop at the Woolworths supermarket at [U] and that it might be convenient for her to attend upon the Woolworths for a handover if she could do some shopping. Evidence was given by the mother with respect to the turnover of cars in the Woolworths car park from her observations, and those of her observations in the McDonald’s [W] car park to the effect that the turnover of cars in the [W] McDonald’s car park is at a much higher rate, but gave evidence that the mother has never found any difficulties finding a parking spot within the [U] Woolworths shopping car park. The court accepts the evidence of the mother with respect to the availability of car parking within the [U] Woolworths car park.
The court notes the evidence given by the mother with respect to her desire that the children not spend a three week block with the father during the school holiday period, particularly also the mother’s evidence with respect to her thoughts that an 11 hour period is simply too long for the children to be away from the mother.
The court suspects that in circumstances where the mother and father have separated where there has been ongoing difficulties during the course of the relationship that perhaps the mother is clinging onto the children at it has been the one thing in her life that has been constant. It is clear however that the children have a loving and strong natural relationship with their mother and it is one where the mother has been, and probably remains being the primary carer for the children.
The court, however, notes that the father has abandoned his application for equal time and now seeks what can be best described when looking at the legislation as substantial or significant time. The mother gives evidence in her affidavit that she has attempted to facilitate the father spending time with the children, or more particularly the children continuing a close relationship with the father.
Having heard the mother’s cross-examination, particularly with respect to the occurrences in which the mother failed to allow the children to attend the father’s grandfather’s funeral, having heard the mother’s attitude with respect to the children not being away from her for more than a two week period, The Court suspects that whilst there might be a willingness of the mother to facilitate and encourage a close and continuing relationship, that at the moment the mother may emotionally be unable to do so.
Again the mother gave evidence during the course of her cross examination and deposes in her affidavit that there are real problems in the communication between the parties, there are real problems in the communication between her and Ms R. During the course of the cross-examination about the current relationship between the parties the mother conceded that there have been problems between the parties, that there have been conflict, but when questioned during cross-examination the mother felt that things had improved since the making of the interim orders by the court in the matter. The mother however maintains that the father has been aggressive and abusive towards her and she has felt intimidated by the father.
The court accepts that the mother has felt intimidated by the father. Whether objectively, this is something any usual parent might feel or experience, it is something subjective to the mother and something she has experienced and indeed the mother has, in having read her affidavit, been intimidated when she has come into contact with the father. The mother deposes that she has done everything she can to ensure that the children communicate with the father by way of telephone, and ultimately that the mother has done everything she can to ensure that the best interests of the children are maintained whilst the children live in her household.
The court found that the mother at times became evasive, or failed to answer questions when cross-examined by counsel for the father. The court cannot tell whether this was because the mother was nervous, whether she was pre-empting questions that were being asked of her, or whether she did not wish to answer the questions. On that basis, the court is unable to make any finding about the manner in which the mother delivered her evidence other than to say that it is clear the mother harbours distrust and hurt towards the father, that it is apparent from the evidence delivered by the mother that there is a real conflict between the parties, that she feels intimidated by the father at times and that whilst the things have become better, the parties commutation can using the words of the counsel for the mother, be described as being “at a low ebb.”
The court has read and considered the affidavit of Ms E, who deposes she is a friend of the respondent mother, that she was at the [omitted] netball courts on or about 13 August 2011, she had attended the netball courts for the purposes of watching [X] play her last game of netball for the season, and that during the course of watching the game [Y] seemed not to be very interested and that Ms E said to [Y], “How about you show me where the canteen is and we can get an ice block at half time?” It is apparent that at half time Ms E walked with [Y] to the canteen and on the way to the canteen [Y] spotted her father who was in attendance at the game, and went and gave him a hug.
Ms E deposes that [Y] quickly returned to her and then they continued to walk to the canteen, and that on returning to the game [Y] gave her father another hug and Ms E stopped walking near where [Y] and the father were. Ms E began speaking to another mother she knew from school. Ms E deposes that whilst they were talking she heard the father say to her words to the effect, “I am her father.” Ms E deposes that she continued talking and the father again said several times, “I am her father, you can go.” Ms E, when questioned during cross-examination, conceded that she was standing in close proximity to where the father was, and that she said to the father, and this is deposed to in her affidavit, that she said, “That’s okay, I’m responsible for [Y]’s return to her mum.”
Ms E deposes that what took place following that exchange was that the father became upset, that he began to speak loudly and in a sharp voice saying, “I’m just saying goodbye to my daughters, is that okay with you?” and that things became heated. Having heard the evidence of Ms E during the course of cross-examination, it is apparent that the father may well have thought that he was being shepherded and/or supervised at times when he was speaking with his daughter and indeed if he reacted in a manner where he raised his voice. The court finds that it was probably reasonable for the father to do so, although it was probably embarrassing to the children and to anybody else at the game.
I don’t know what more I can take from the affidavit or the evidence provided by Ms E other than to say the court finds again that there are real issues between the parties of conflict, and the court forms the view that if the parties are brought into frequent contact with one another there is likely to be some conflict expressed, or possibly negative comments directed towards one another in front of the children.
I have read and considered the affidavit affirmed by Ms L, a solicitor of [omitted], on 5/9/2011. Ms L deposes that she is a friend of the mother, that she has a daughter of a similar age to [X], and that she has attended upon the swimming centre where [X] and [Y] both swim, and that she has, on various occasions, witnessed the father attend upon the swimming lessons. It is apparent, having read the affidavit and having heard the cross-examination of Ms L, having heard the cross-examination of the mother, that there was some form of arrangement whereby the father would attend the swimming lessons to collect the children.
It was apparent that the children would finish their swimming at sometime around 5pm, the father would be present at the swimming and would seek that the children go and spend time with him as there was limited time to spend with the children that night. The Court must notably note paragraph 10 of Ms L’s affidavit, particularly the last sentence, “that on other occasions he arrives between 5pm and 6pm,” referring to the father, “and demands to take the girls when he arrives, which Ms Yutang did not agree to as she wanted him to take them at 5:45pm.”
What is apparent is that there has been some form of a tug of war between the parents as to who the children should stay with or go with. It is apparent that the mother did not consent on one occasion that the children should leave early. It is apparent that the mother, during the course of the exchanges, resorted to what could be only described as a pre-existing arrangement, but what most notably occurred is that the children were exposed to conflict between the parties in circumstances where they were being handed over between the parents.
The Court is unable to say whether the actions of the mother or the father were reasonable other than to simply have some insight and say there is an ongoing, or has been a previous history of conflict, and there will likely be an ongoing occurrence of conflict unless both parties radically change the manner in which they address one another and their attitudes towards one another.
I have read and considered the family report of Ms D, dated 5 March 2012. I have also heard and considered the evidence provided by
Ms D during the course of her cross-examination. Ms D recites what can only be described as a history of the party’s relationship and a history of what can be also described as problems occurring between the parties with respect to communication and conflict.
The Court notes that the children were interviewed and expressed views, particularly at paragraph 49, [X]’s views on the proposal of the parties are that she wishes the current arrangements to stay the same. She also indicated that she wishes the father to stop questioning her about the mother. [X] also stated that she wishes to be picked up and dropped off by the parties at Woolworths and not McDonald’s as she stated that this is because there have been difficulties finding the parties in McDonald’s. [Y] agreed with this. Both children also stated that they want to spend equal time with the parties during school holidays and on their birthdays.
At paragraph 50 of the family report the writer states that these views demonstrate the maturity of both the children, particularly [X]’s maturity. During the course of the cross-examination, the family report writer was asked questions as to whether she actually sat down with the children, explained to the current set of orders that were in place so that when they were asked a set of questions about whether things should remain the same or indeed answered that they wished things to remain the same, that it in fact was subjective to their experience. That is, that the children were expressing views, particularly about whether or not they wished the current arrangements, whereby they spent particular nights with the father and lived with the mother were ones they were seeking to remain in place.
The family report writer conceded that the views of the children were more general than that, and that indeed the children were expressing views along the line that they wished to live with the mother and spend time with the father, and indeed that she had not sat down with the children and discussed with them whether or not they were referring particularly to the current orders in place. Ms D noted the interactions between the children and the and said the observation of both children and the father are overall positive, that the father kissed both children, both children sat on father’s lap.
[X] went directly to the father and cuddled him, [Y] got a toy from the toy box and showed the father it. The father asked about her tooth. The father and both children were happy to see each other. Both children were also happy to see the father’s partner. [Y] jumped up on her and they cuddled. The father’s partner spoke to [X] about having time off. [X] was a little guarded with the father’s partner, but [X] hugged the father’s partner when she was leaving.
The interaction of both children with the mother was also positive. [Y] snuggled with the mother and neither child displayed any anxiety during their interactions. They all played with toys together.
It is clear in this matter that these two children love both parents and also love the father’s new partner very, very much. It is really a question for the parents as to what they can do in these set of circumstances to shield and guard these children from their conflict. The parties will really need to consider what action they take after orders are made today, one to comply with the orders, but two to change the behaviour they have been engaged in previously with respect to the manner in which they communicate. The communication in this matter is what has been described by the counsel for the mother, “at a low ebb.” The real test for the parents will be whether they can lift it from a low ebb to one where they do effectively communicate with one another, where the children feel free to have discussions in both party’s households as to what goes on in the other party’s household, and the children feel free to express joy at loving both parents and also loving the father’s new partner, and hopefully the father and Ms R’ new daughter.
Happily though, at paragraph 62, the family report writer notes that [X] and [Y]’s experience of the parental separation has reportedly been minimal due to the mother’s reported focus on this outcome, and analysis on both [X] and [Y]’s needs is that they will require ongoing support and familiarity to ensure their wellbeing. The party’s accounts for the alleged violence that occurred on one occasion during their relationship differ. Both allege verbal abuse post-separation.
The report writer notes with concern that [X] is upset about the father questioning her. I have alluded previously in this judgement that it is unhelpful that the father does question [X] about what occurs at the mother’s household, and that the father should indeed give [X] some space and if she chooses to discuss matters that take place in the mother’s household she should be free to do so without questioning.
At paragraph 66 the family report writer talks about those matters related to the father’s week-about proposal, and indeed the family report writer finds, or expresses an opinion that it would be disruptive to the children that they be in a week-about routine. The family consultant was of the view that the parties should share equal share parental responsibility. When questioned about issues relating to Christmas Day, the family report writer related that it would be preferable that both children be able to experience life waking up in both parent’s households, that is, that they have alternate Christmas Days and that the children would indeed cope with an arrangement whereby they spend half of the gazetted school holidays with both parents, including what could be surmised as a three week period with the father during the Christmas school holidays. I agree with the family report writer’s view in respect of Christmas and school holidays.
The family report writer recommends that the drop-offs and pickups of the children take place at Woolworths as opposed to McDonald’s. The family report writer sets out that it is her view that the arrangement as proposed by the mother, that is, that the current arrangements remain in place will be less disruptive to the children.
The court, however, having reviewed the orders proposed by the mother, forms the view that the orders that are proposed by the mother see the children travelling between the two households frequently. The court does not accept the evidence of the family report writer that the orders as they exist are less disruptive than the orders proposed by the father having regards to the matters contained within the family report, having heard the cross-examination of the family report writer and having regards to the proposal of the father and the proposals of the mother.
The court has read and considered the various exhibits tendered during the course of the hearing, particularly the photographs depicting the car park of the McDonald’s family restaurant, the exterior of the Woolworths supermarket and what can be described as the interior shopping area out the front of the display counter in the Woolworths supermarket. The court finds that the Woolworths supermarket is an appropriate place at which to handover children, as is the McDonald’s family restaurant. The court, however, finds that in circumstances where one child particularly demands or requests that McDonald’s food is provided to her on each occasion when she attends McDonald’s, it is probably not in the children’s best interests that they continue to attend McDonald’s on each and every occasion there is a handover.
The court has read and considered the police report made by the mother dated 15 August 2011. Again, the court takes from having read the statement made to the police that it is demonstrative of what can be described as a poor relationship between the parties peppered by a lack of communication and conflict. Having regards to the matters set out in the police report, the court is unable to make any finding that there has been an ongoing occurrence of family violence between the parties.
I have read and considered Exhibits E with respect to a communication between the parties by way of email with respect to the time at which the children would spend time with the father. Again, the email demonstrates that the parties are unable, really, to communicate with one another about perhaps compromising the orders. Exhibit F provides copies of emails between the parties. Again the emails demonstrate a lack of communication between the parties.
Exhibit D is a copy of an extract from the party’s communication book. The court particularly notes the entries with respect to scripture and the father’s request that the children undertake scripture. More particularly, I read what is stated, “The girls have told me this week that they are not doing scripture at school, is this the case? If so, we need to discuss this because I would like them to do scripture.” That entry was dated 23 April 2011. On 28 April 2011 the mother writes, “The girls are not doing scripture at school this year.” Again, this demonstrates a lack of communication between the parties, and in part an inability or unwillingness by the mother to compromise with the father or discuss issues relating to the children’s religion.
The principles relating to parental responsibility, arrangements as to who a child lives with and spends time with, including parents and other people interested in the child’s welfare are set out in Section 60B of the Family Law Act1975. They arise in proceedings conducted under Part 7 of the Family Law Act1975. Unless The Court rebuts this, a statutory presumption is for equal share parental responsibility section 61C(1) provides that until a child turns 18 each of the child’s parents has parental responsibility for the child. Parental responsibility is defined at Section 61B as being all of the duties, powers, responsibilities and authorities which by law parents have in relation to the child.
The presumption in favour of equal shared parental responsibility relates to parental decision-making and does not prescribe where or with whom a child should live. Section 61DA(2) provides that the presumption does not apply where there exists reasonable grounds to believe that a parent or a person who lives with a parent of a child is engaged in family violence or child abuse. The presumption may also be rebutted where The Court is satisfied that it would not be in the child’s best interests in accordance with Section 60DA(1)(iv).
In circumstances where the court determines the presumption does not apply or is rebutted the court must decide the appropriate parental responsibility arrangements. This is a matter in which the parents have agreed by virtue of their application and response that there should be equal shared parental responsibility. Indeed, the court does not make any finding that there has been family violence that is such that it would rebut the presumption in favour of equal shared parental responsibility as set out at Section 61DA of the Family Law Act1975.
Section 60B sets out that the objectives of Part 7 of the Act when deciding whether to make a particular parenting order, including an order concerning parental responsibility. Section 60CA and Section 65AA provide that the child’s best interests remain the paramount consideration. Section 60B sets out the objects of Part 7 of the Act within which the relevant Section 60CC factors are examined, weighed and measured.
Section 60B states:
The objects of this part are to ensure that the best interests of the child are met by ensuring the child is to have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children and protecting the child from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence; ensuring that the children receive adequate and proper parenting to help them to achieve their full potential; ensuring that the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Section 60B(2) provides:
The principles underlying these objects are that except where it is or would otherwise be contrary to the child’s best interests that:
·the child has a right to know and be cared for by both of their parents regardless of whether their parents are married, separated, have never been married or have never lived together;
·children have a right to spend time on a regular basis with and communicate on a regular basis with both of their parents and other people significant to their care, welfare and development such as grandparents and other relatives;
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children and parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture including the right to enjoy that culture with other people who share that culture.
The children in this matter are not of Aboriginal or Torres Strait Islander background or of what can be described as a culturally or linguistically diverse background and I therefore do not propose to further consider subparagraph (e) of Section 60B. When determining what parenting arrangements are in the best interests of a child the court is required to consider those matters set out at Section 60CC. This is a matter that was commenced prior to the amendments to the Family Law Act1975 that took place on 7 June 2012 and in those circumstances the court must consider the provisions of Section 60CC as they were prior to the amendments.
Section 60CC contained two primary considerations. Section 60CC(2)(a) provided that the court must consider the benefit of a child having a meaningful relationship with both of the child’s parents. The second primary consideration was that at Section 60CC(2)(b) and required the court to consider the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. As far as they were relevant to this case the court is required to consider 13 additional considerations set out at Section 60CC(3)(a) to (m). Subparagraph (m) allows the court to take into account any other fact or circumstance the court thinks is relevant.
The legislative framework set out Section 60CC(2) and (3) allows the court to consider an almost infinite variety of the child’s circumstances. Section 60CC(4) required the court to also consider the extent to which each parent has fulfilled or failed to fulfil his or her parental responsibilities and has facilitated the other parent in fulfilling his or her parental responsibilities. The Full court comprising Thackray, O’Ryan and Benjamin JJ in Champness & Hanson (2009) FLC 93-407 at paragraph 83,502 considered the question of the hierarchical relationship between the considerations set out at Section 60CC as they were in the Act prior to the amendments stating:
It is true the primary considerations are above the additional considerations in the sense they appear first at Section 60CC. However, we do not accept the premise inherent in the submission of the counsel for the father that the primary considerations will always outweigh the additional considerations.
They concurred with the view expressed by Warnick and Thackray JJ in Marsden & Winch (No. 3) [2007] FamCA 1364 concerning the relationship between the primary and additional considerations set out at what was Section 60CC of the Family Law Act prior to its amendments.
Ultimately, the weight attached to each factor as set out at Section 60CC is a matter of discretion. Pursuant to Section 60CG when determining appropriate orders the court must, to the extent possible and consistent with the child’s best interests, ensure the orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence. The court has no notice that there is an existing family violence order that would be inconsistent with either set of orders as proposed by the parents in these proceedings, and further that the orders proposed by either party would not expose a person to unacceptable risk of family violence.
If the court is satisfied the parents are to have equal shared parental responsibility and there is an agreement in this matter that both parents will, by virtue of their respective applications and responses, the court must pursuant to Section 65DAA(1)(a) and Section 65DAA(2)(c) consider whether it is in the best interests of the child spending equal or substantial and significant time with his or her parents. Pursuant to Section 65DAA(5) the court must consider the practicability of the child spending equal or substantial and significant time with his or her parents.
In Goode & Goode [2006] FamCA 1346 Bryant CJ and Finn and Boland JJ considered the meaning to be attributed by the court to the term “consider” and reviewed the decision of O’Loughlin J at first instance in Chapman & Barton v Tickner, Minister for Aboriginal and Torres Strait Islander Affairs (1995) 55 FCR 316 and stated:
“the verb “consider” is a common word used daily in language and in documents yet no counsel was able to refer to any judicial determination of its meaning and the Macquarie Dictionary and the Shorter Oxford English Dictionary ascribe to it a variety of shades of meaning giving respectively as their first definitions “to contemplate mentally; meditate or reflect on; and to review attentively to survey, examine, inspect”. American and Canadian dictionaries give similar general descriptions, “avert to, analyse, appraise, assess” etcetera, and the Legal Thesaurus Section Edition by William C. Burton provides “to examine; inspect; to turn one’s mind to”.
The practical meaning of “equal time” in my view is well understood and thus requires no explanation. If equal time is not ordered significant and substantial time must be considered. The practical meaning of “significant and substantial time” is a legislative one and is defined at Section 65DAA(3) and (4). Subparagraph (3) of Section 65DAA provides that a child will be taken to spend significant and substantial time with a parent only if:
a) The time the child spends with the parent includes both:
(i)days that fall on a weekend and holidays; and
(ii)days that do not fall on a weekend or holidays; and
b)the time the child spends with a parent that allows the parent to be involved in:
i) the child’s daily routine and occasions and events that are of particular significance to the child; and
ii) the time the child spends with a parent allows the child to be involved in occasions and events that are of special significance to the parent.
In Mazorski v Albright (2007) 37 FAM LR 518 at pages 525 to 526 Brown J considered the court’s position when determining whether the court should award equal time and substantial and significant time when applying the provisions of Section 65DAA, examining the Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum 2006 that stated:
Sub-section 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that The Court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on The Court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that The Court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the children remain the paramount consideration for parenting orders.
Pursuant to Section 65DAA(5)(e) the court is able to consider such other matters as the court considers relevant when determining what is reasonably practicable for a child to spend equal or significant and substantial time. The court notes that Sub-section 65DAA(5)(c) touches on the parents’ relationship. Where the court finds that the two concepts of equal time or substantial and significant time are unable to provide an outcome that promotes the child’s best interests or is reasonably practicable a child or children living and spending time arrangements are to be determined in accordance with the child’s best interests and in that regard see the case of Goode v Goode (2006) FLC 93-286.
The effect of Section 60C(A) provides that the court must regard the best interests of the child as the paramount consideration as determined by a consideration of the factors at Section 60CC and the court shall determine the weight to be given to the various factors at Section 60CC, be they primary or additional considerations or considerations arising from a particular issue in a case but not specifically referred to in the Act.
As previously set out the court finds that the statutory presumption in favour of equal shared parental responsibility as set out at Section 61BA of the Family Law Act1975 should not be rebutted. Indeed, it is the application of the father and the response of the mother that the parties share equal parental responsibility and the court finds that it is in the best interests of the children that there be equal shared parental responsibility.
I now turn to Section 65DAA. The court notes that the father had initially sought equal time with the children but has now moved away from that position whereby he seeks to spend time with the children as what can only be described as five nights a fortnight, and when looking at the definition of “substantial and significant time” falls within the definition of “substantial and significant time”. In those circumstances the court must consider whether or not substantial and significant time is in the best interests of the children and is reasonably practicable.
Sub-section 65DAA(2) provides that:
Subject to Sub-Section (6) if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child and the court does not make an order or include a provision in the order for the child to spend equal time with each of the parents the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable, and if it is, consider making an order to provide or include a provision in the order for the child to spend substantial and significant time with each of the parents.
Sub-section 65DAA(5) provides that in determining for the purposes of Sub-section (1) and (2) whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents the court must have regards to how far apart the parents live from one another. The court considers that the parties live in a close proximity to one another. Indeed, the parties share the same postcode. The parties live some 15 to 20 minutes’ drive between them at maximum.
Sub-Paragraph (b) provides the court must consider the parents’ current and future capacity to implement an arrangement for the child spending equal time, or significant and substantial time, with each of the parents. Whilst there are real difficulties between the parties it is the view of the court that the parties have a current and future capacity to implement an arrangement for significant and substantial time. The parents both hold good jobs. They are professional people. They are people who, whilst they do not get along, are both very, very capable adults and very, very capable parents. The court has no difficulty finding that the parties have the current and future capacity to implement an arrangement for the children spending significant and substantial time with the parents.
The court has to consider the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind. The court has reviewed the two proposals of the parents. Both proposals, on the face of it, fall within the definition of “significant and substantial time”.
The court is concerned about the parties’ communication with one another and indeed, in circumstances where the children go between the two households what can only be described as frequently, as requested in the orders sought by the mother, the court is concerned as to whether or not the parties’ capacity to communicate may affect that ability.
The father proposes a block period of some five nights. The court notes that previously the children have spent time with the father in his care during school holiday periods. The proposal of the father would ensure that the children are not exposed to, or hopefully not exposed to conflict, in that the parents would not come into contact with one another frequently, in that the handovers of the children would take place mostly at the school. Having regards to the matters set out within the affidavits; having heard from the mother that since the making of the last interim orders things have improved between the parties, the court is satisfied that the father’s proposal is one where the parties’ current and future capacity to communicate with one another and resolve difficulties that might arise in implementing an arrangement of that kind would be suitable.
The court must consider the impact that an arrangement of that kind would have on the children. Having regard to the age of the children; having read the matters disclosed by the family report writer with respect to the children’s relationship with both parents and the children’s relationship with the father’s new partner, Ms R; having regards to the possible impact that may occur when the father and Ms R have a baby, the court forms the view that the impact of the orders as suggested by the father would not have a detrimental impact upon the children. The court however is concerned that the proposal of the mother that would see the children move between the two households what I would describe as frequently, and such an arrangement may have a detrimental impact in circumstances where the parties are brought into contact with one another weekly.
The court is also concerned about the circumstances in which the children would not enjoy a full weekend with the mother, that is, the mother’s proposal would see the children in a set of circumstances where there would be not a single weekend that would pass where they would have an entire weekend with their mother, that is, on each week and be it a Sunday afternoon being in the court’s view substantial part of the weekend, they would spend time with the father and the children would be exposed to a handover between the parties. The court considers that the father’s proposal is one that is practicable. I am now required, and I turn to those matters set out at Section 60CC before I make any final findings in respect of the matter.
I first turn to the additional considerations set out at Section 60CC(3) of Section 60CC as it existed prior to the amendments that took place in June of this year, namely Section 60CC(3)(a). The court must consider any views expressed by the child and any factors such as the child’s maturity or level of understanding that the court thinks are relevant to the weight it should give the children’s views. It is clear that the children have expressed a view that they would like things to remain the same. Having heard the cross-examination of the family report writer what is now clear to the court is that the children’s desire for things to remain the same are that the mother remain the primary carer of the children; that the children remain living with the mother and spend time with the father.
The court does not take the view that the children are expressing a view that they maintain the current existing arrangement of parenting as set out in the orders made previously by this court by my brother Foster FM. When dealing with the weight the court gives the children’s views the court takes into account their level of maturity but also the children’s understanding. Whilst the family report writer expresses that the children are well mature the court forms the view that the children may not have a sufficient level of understanding to truly understand the interactions that are taking place between their parents or understand what things might be done to minimise any conflict in either party’s household. I give the children’s views some weight but they are not determinative in this matter.
I am asked to consider the nature of the relationship of the children with each of the children’s parents and any other persons. I consider that the children have a warm, loving, strong relationship with their mother. It is clear she has been the children’s primary carer and they love her very much. The children also love very much the father. It is clear they have a warm and loving relationship with him and it is heartening to note for the benefit of these children that they also share a warm and loving relationship with the father’s new partner, Ms R, and one can only hope that the mother and father are able to facilitate and encourage that relationship so that the children feel as though they are able to express their love of both parents and Ms R in both parties’ households.
I am asked to consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent. This is a matter in which the court could easily find there has been an unwillingness by the mother to facilitate and encourage a close and continuing relationship. The court does not make that finding in circumstances where perhaps the mother has been under strain or she may have been in a position where she felt as though the father may have intimidated her. It is clear, though, that what has occurred in this matter is that there is no communication and it is the breakdown in communication that has led to a set of circumstances where, on the face of it, the mother could be branded as being unable or unwilling to facilitate and encourage a close and continuing relationship. The mother has expressed in her affidavit that she has a willingness and ability to do so, and I do suggest and believe that the mother does at least have an ability to do so, and I hope with time that both parties will have not only the ability but a willingness to facilitate and encourage the children’s relationship with the other parent, who they clearly love.
I am asked to consider the likely effect of any change in the child’s circumstances including the likely effect on the child of any separation from either his or her parents or any other child or other person including any grandparent or other relative of the child with whom he or she has been living. During the course of the father’s submissions it was suggested that the difference between the parties is only one night. In actual fact that is correct. What however is also correct is that there is a difference, a real difference in the manner in which the children would spend time with the father. On the father’s set of orders the children would spend a period of five block nights with the father. On the mother’s response the orders that she seeks are that the father spends four nights but such nights be staggered.
I am not convinced however that either version, particularly the father’s version, is likely to cause a significant effect to the children’s well being, in that the children will be separated from the mother for a significant period of time. Indeed, the children would be separated from the mother at most probably three days in accordance with the orders sought by the mother, probably five days as sought by the father. The children have during school holidays experienced a set of circumstances where they spend time with the father for a period of some five days. The court forms the view that the children are able to cope with this and indeed they will probably benefit from being able to spend a block period with the father in circumstances where both parties are not exposed to one another and more particularly the children are not exposed to the conflict of the parents at potential handovers.
The children will not be separated from each other and the court notes that the children will be able to maintain or at least commence a relationship with their new half-sibling indeed when she is born. The court does not form the view that the effects of any change on the children’s circumstances will be adverse to their best interest.
The court must consider the practical difficulty and expense of a child spending time with and communicating with a parent. The court does not form any view that there are any difficulties associated with the children spending time or communicating with either parent as a result of practical difficulty or expense in circumstances where the parties live in close proximity to one another.
The court is required to consider the capacity of each of the children’s parents and any other person to provide for the needs of the children including emotional and intellectual needs. The mother in her affidavit and the evidence she has given in cross examination has well and truly demonstrated that she has a good capacity and is more than capable of providing for the needs of the children including the intellectual and emotional needs. During the course of the father’s cross-examination and that of the father’s partner, having read the father’s affidavit the court has formed the view that the father also has a capacity to provide for the needs of the children including their intellectual and emotional needs.
The court does not consider that the maturity, sex, lifestyle and background including cultural traditions of the child or either of the child’s parents are a matter that should be considered in these proceedings. The Court is not aware that either of the children or the parents are of Aboriginal or Torres Strait Islander background and accordingly The Court does not consider those matters set out at Section 60CC(3)(h).
The court is required to consider those matters at Section 60CC(3)(i) being the attitudes to the children and the responsibilities of parenthood demonstrated by each of the parents. This is not a matter where either parent are fractured; where they have any sort of disability or are affected by drugs, alcohol or mental illness. Both parents are well and truly functioning human beings, more than capable of and have demonstrated responsibilities of parenthood and they have adequately demonstrated their good responsibilities towards the parenting of their children during the course of their relationship and following separation.
The court must consider any family violence involving the child or a member of the child’s family. The court has considered the event that took place at the father’s residence when the mother attempted to enter the property and the father requested she not. Again the court is unable to make any finding as to what took place during that occurrence. It is clear however that there is a real history of conflict between the parties. The conflict is not such that the court finds that it amounts to family violence however the parents will need to do everything they can to work on their relationship to ensure that they do not enter into disputes with one another; that they minimise their conflict; that their tempers do not boil over, lest there be an occurrence in the future whereby the children are exposed to family violence between the parties.
The court is required to consider any family violence order that applies to the child or a member of the child’s family. The court is not aware that there are any current family violence orders in place.
Going back to family violence, the amendments to the Family Law Act1975 that took place on 7 July would mean that there has been family violence during the course of this relationship in accordance with the new definition however, having regards to all of the circumstances of the parties; having regards to the definition that remained in force and is relevant to these proceedings, the court finds that there is no family violence that is such that should be a determinative factor or be a substantial consideration when making orders in this matter.
The court is required to consider whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the child. Having regards to the proposals for the children by the mother it is clear that if the orders were granted the parents would be placed in a position where they would come into contact with one another regularly. There are various occasions where the parties would need to attend handover points and the court forms the view that given the conflict previously between the parties, given their lack of co-operation and communication, if orders were made in the terms as sought by the mother there is a likelihood that there may be the institution of further proceedings perhaps in relation to contraventions relating to handover times.
The court is satisfied that the orders as proposed by the father would be least likely to lead to the institution of further proceedings in circumstances where the parties are least likely to come into conflict as the father effectively collects and returns the children from and to school during school term.
The court can consider any other fact or circumstances the court thinks is relevant. The court, having regards to all of the evidence, having regards to the matters that were raised during cross-examination, does not think it is appropriate to consider any other fact or circumstances.
I am required to consider those matters set out at Section 60CC(4), particularly the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child. This is not a matter in which either parent has not chosen to spend time with the children or has failed to communicate or spend time with the children. These are two parents who love their children very, very much. This is a set of circumstances where the children love the parties very much. It is clear however the parties are at loggerheads; they cannot communicate; and at the moment cannot get along.
The court must consider whether the extent to which each of the child’s parents has facilitated or failed to facilitate the other parent participating in making decisions about major long-term issues in relation to the child, to spend time with the child and communicate with the child. There is some history in the matter in which the parties have made decisions, particularly the court notes the matters relating to the children’s sporting activities and also with respect to the children attending scripture. Whilst the court notes that the mother may have failed to consult the father with respect to these issues, again this is not a determinative factor when looking at the orders sought by either party. Whilst it could be a criticism, again it comes back to the fact in my view that the parties are unable to communicate effectively and the parties will need to do whatever is necessary in the future to re-build their relationship as parents and to attempt to re-build their communication for the benefit of their children.
I now turn to the primary considerations set out at Section 60CC(2)(a) and (b), 2(a) particularly, the benefit of the child having a meaningful relationship with both of the child’s parents. It is the view of the court that these children will benefit from maintaining a meaningful relationship with both parents. Indeed, they will be enriched if they are able to travel between two households and enjoy spending time with both parents without fear that they must compartmentalise their lives by not discussing issues in the one parent’s household with another parent.
The court considers the need to protect the children from physical, psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Again the court is of the view that neither parent would attempt to physically or psychologically harm, abuse, neglect or impose family violence on the children, and indeed the court forms the view that the children will not be exposed to physical, psychological harm, abuse, neglect or family violence whilst they are in each parent’s physical household. The court is concerned however that the children may be exposed to family violence, that they may be psychologically harmed if the children are handed over between the parents frequently and the children are able to witness their parents not getting along, perhaps not communicating or, at worst, abusing one another or perpetrating what would fall under the new definition of “family violence” within the amendments to the Family Law Act.
In those circumstances, in order to ensure the children are protected from physical, psychological harm, from being subjected to or exposed to abuse, neglect or family violence, the court finds it is preferable to make the orders with respect to the children spending five block nights a fortnight with the father.
I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of Myers FM.
Date: 24 October 2012
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