Ryder and Sandford - [2009] FMCAfam 1141

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RYDER & SANDFORD

[2009] FMCAfam 1141

FAMILY LAW – Parenting – where siblings are separated and older child is refusing time with the mother – where younger child expresses wish to live with father – father has greater capacity to facilitate the relationship between the children and the mother – both children to reside with the father and spend time with the mother.

Family Law Act 1975 ss.60CC, 61DA, 65DAA

Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415.
McIntosh J and Chisholm R ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3.
Smyth, B “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4

Applicant:

MS RYDER

Respondent:

MR SANDFORD

File Number:

WOC 1251 of 2007

Judgment of:

Altobelli FM

Hearing date:

14 September 2009

Date of Last Submission:

14 September 2009

Delivered at:

Wollongong

Delivered on:

30 October 2009

REPRESENTATION

Counsel for the Applicant:

Ms Stolier

Solicitors for the Applicant:

Verekers Lawyers

Counsel for the Respondent:

Ms Doosey

Solicitors for the Respondent:

Sward Law

Counsel for the Independent Children’s Lawyer:

Mr Moss

Solicitors for the Independent Children’s Lawyer:

The Legal Aid Commission of NSW

ORDERS

That the Mother and Father are to have equal shared parental responsibility for the children [X] born [in] 1995 and [Y] born [in] 2000 in relation to the care, welfare and development of a long-term nature involving the children to include, but not be limited to, issues about:-
(a)the education of the children – both current and future;
(b)the religion of the children;
(c)the health of the children;
(d)the names of the children; and
(e)any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with the other parent.
That the Father shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the children are living with or spending time with the Father.
That the Mother shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the children are living with or spending time with the Mother.
That the children are to live with their Father unless the parents otherwise agree. Within 48 hours of the making of these order the mother is to do all things necessary to cause and deliver [Y] into the care of his father.
That the child [X] is to spend time with his Mother in accordance with his wishes.
In the event that the child [X] wishes to spend time with his Mother, the Father is to facilitate this time by delivering the child to the Mother at Property W at the commencement of any agreed time between child and the Mother and then by collecting the child from Property W at the conclusion of the Mother’s time with the child.
In the event that the Mother lives outside the Wollongong area, that the child [Y] is to spend time with his Mother as follows:-
(a)Commencing on 13 November 2009, from 5.30pm Friday until 5.30pm Sunday, and thereafter each alternate weekend;
(b)for the first half of the New South Wales school holiday period at the end of Terms One, Two and Three in each year commencing at 10.00am on the first Saturday after the break up of school and concluding at 10.00am the following Saturday;
(c)Excluding Christmas Day and Boxing Day in each year, for the first half of the NSW Christmas School Holiday period in each year, commencing at 10.00am on the first Saturday after the break up of school and concluding at 10.00am on a day that falls midway in the school holiday period.
(d)In the event that the child is not already spending time with his Mother during the Mother’s Day weekend, from 5.30pm on the Saturday before Mother’s Day until 5.30pm on Mother’s Day each year.
(e)For a minimum of six hours on Christmas day in 2009 and then each alternate year thereafter and for a minimum of six hours on Boxing Day in 2010 and then each alternate year thereafter.
(f)any additional time as may be agreed between the Mother and Father from time to time and as the child may request.
In the event that the mother lives within the Wollongong area, in addition to the time specified in the preceding order the child [Y] is spend additional time with his Mother from after school Thursday until before school Friday each week.
To facilitate 7 (a), the Father is to deliver the child to [C] Contact Centre at [C] at the commencement of the Mother’s time with the child and then collect the child from [C] Contact Centre at the conclusion of the Mother’s time with the child.
To facilitate Orders 7(b) to 7(f), the Mother is to collect the child from Property W at the commencement of the Mother’s time with the child and then return the child to Property W at the conclusion of the Mother’s time with the child or alternatively, the Father is to deliver the child to the Maternal Grandmother’s residence in [W] at the commencement of the Mother’s time with the child and then the Father is to collect the child from the Maternal Grandmother’s residence at the conclusion of the Mother’s time with the child.
That Orders 7(a) and 8 shall be suspended during all school holiday periods and Order 7 (a) is to recommence on the first Friday that the children return to school and Order 8 is to recommence on the first Thursday that the children return to school.
That when the children are living with or spending time with either parent, they are to have a liberal telephone communication with the other parent and each parent is to facilitate this.
Each parent is restrained from making critical or derogatory remarks in relation to the other parent in the presence or within hearing of the children and each parent is to use their best endeavours to prevent any other person from making critical or derogatory remarks in relation to the other parent in the presence or within hearing of the children.
The Father and Mother shall keep each other informed as soon as is reasonably practicable of:-
(a)Any medical problems or illnesses suffered by any of the children whilst in their respective care;
(b)Any occasion that the children are due to be hospitalised or have been hospitalised;
(c)Any medication that has been prescribed for the children whilst in each parent’s care;
(d)Any specialist medical appointments that the children are due to attend with any medical doctor, psychiatrist, psychologist, counsellor or therapist so that the other parent has sufficient notice to attend any scheduled appointment;
(e)Any significant social, school or religious function which the children are to attend;
(f)Their residential address and particulars of others who may reside with the children from time to time; and
(g)Their telephone contact numbers both landline and mobile (whichever applies).
That each parent is entitled to attend all events involving the children including but not limited to:-
(a)sporting fixtures;
(b)extra curricular activities that allow for parental attendance or participation; and
(c)school functions and events that allow for parental attendance or participation – AND the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children’s transportation to and from the event unless otherwise agreed upon between the parents.
That the Mother and Father are to continue to participate in any counselling or parenting programme as recommended by Unifam, Wollongong from time to time.

NOTATION

Subject to [X]’s wishes, it is noted that the father agrees to facilitate time between [X] and his mother on the last Sunday of each month from 11am until 4.30pm; with the mother to collect [X] from outside Property W at the commencement of her time with [X] and then return [X] to Property W at the conclusion of her time with [X].

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

WOC 1251 of 2007

MS RYDER

Applicant

And

MR SANDFORD

Respondent

REASONS FOR JUDGMENT

Introduction

This dispute relates to two children, [X], born [in] 1995 who is currently 14 years, and [Y], born [in] 2000, who is almost 10. The applicant in these proceedings is the children’s mother. She is 33 years old and lives in the [C] area, southwest of Sydney. The respondent is the children’s father. He is 33 years old and he lives in the Illawarra region of New South Wales. The parents have competing proposals in relation to the children. [X] currently lives with his father and [Y] lives with his mother. In short, at the end of this hearing, it was common ground as between the parents that [X] would continue to live with his father. The only issue in relation to [X] is whether he should have contact with his mother and if so, on what basis.
In relation to [Y], the mother’s proposal is, in effect, that he continue to reside with her and have contact with the father and with his brother [X]. The father’s proposal in relation to [Y] is that he should live with the father and [X] and the father’s new family, and that he should have contact with the mother. One of the difficulties in this case was that it was apparent to me and, indeed, by the end of the hearing to all persons involved in this case, that there was a very high level of conflict between these parents, and that communication between them was minimal, if not non-existent.

Background

There is a difference in the evidence of the parties as to when they commenced their de facto relationship and when it ended. Nothing turns on this, even though there is a quite significant discrepancy between the parties’ respective versions about this. It is common ground between the parties that in October or November of 2007 [X], who was until then living with his mother, went to live with his father in the Wollongong area. The mother commenced proceedings in November 2007, and on 23 November 2007 the first of what eventually became six interim consent orders were entered into between the parties. The first such consent order was made on 23 November 2007 and the last consent order, before the final hearing, was made on 2 July 2009.
It is apparent from this fact that the parents had relatively little difficulty reaching agreement about parenting issues and were, in all likelihood, well assisted in this regard. A review of the consent orders indicates that they focussed on the contact arrangements between each child and the other parent, and as regards the children spending time together. It is significant to note how much effort was made over a period of just under two years to find a workable arrangement for contact. Suffice it to say, for present purposes, that these arrangements did not work.
In January 2008, after the parents separated, the father commenced a de facto relationship with his current partner, Ms S. There are two family reports that have been prepared. The first was prepared by Family Consultant O’Donohue, in July 2008. The second report was prepared by Family Consultant Starling, and it was released in May 2009. I will need to deal with the contents of the family reports in detail in due course.
[In] 2008 [Z] was born to the father and his new partner. As I indicated above, notwithstanding the efforts made by each parent to implement contact arrangements, those contact arrangements were unsuccessful, and the mother filed a contravention application in the Local Court at [C] in April 2009, but that matter was ultimately subsumed to the present proceedings. A number of issues arise on the evidence that was before me. It is trite to say that the court must make an order that is in the best interests of these children. On the facts of this case, however, it became apparent to me that finding an order that was in the best interests of the children might not necessarily involve making the best order for them, and might involve, for example, choosing a least worst option.
By the time that the submissions in the hearing were concluded, the parties’ respective positions were as follows: on behalf of the applicant mother, she conceded that [X] should live with his father, but she proposed that [Y] live with her and that both children spend time with the mother and each other each alternate Saturday from 10 am to 2 pm or otherwise longer in accordance with [X]’s wishes, such time to be facilitated by the maternal grandmother collecting [X] from [W] McDonald’s and delivering [X] back to [W] McDonald’s at the end of such visit. In addition, the mother proposed that [Y] spend time with his father each alternate weekend, for one half of the school holidays, and on special days.
The proposal of the respondent father was as set out in his amended response that was filed in court on 2 December 2008. It provides for both children to live with him; for [X] to spend time with his mother, based on his wishes, and for [Y] to spend time with his mother each alternate weekend, each Wednesday evening, and during school holidays and special occasions. One of the practical issues in this case is the geographical distance that separates the parents.
By the time of close of submissions, the proposal of the Independent Children’s Lawyer was that the parents have equal shared parental responsibility; that [X] live with the father and spend time with his mother in accordance with his wishes; and that in the event that the mother is living outside of the Illawarra area, that [Y] lives with his father and spends time with the mother in accordance with a detailed proposal.
The evidence before me consisted of the affidavits of the mother filed 16 November 2007, 22 November 2007, 8 December 2008,

17 December 2008 and 30 June 2009. The evidence of the father consisted of his affidavits filed 3 July 2009, 19 December 2008,

1 December 2008 and 13 December 2007. The father also relied in his case on an affidavit of his de facto partner, Ms S, sworn 19 December 2008. Each of the deponents of the affidavits gave oral evidence and was cross-examined.
The evidence in the Independent Children’s Lawyer’s case consisted of both family reports, and Family Consultant Starling, the author of the second family report, provided oral evidence and was cross-examined.
This was a case that proceeded on the basis that the child [Y] had a meaningful relationship with both parents and that the child [X] had a meaningful relationship with his father, but not his mother. The case also proceeded on the basis that there were no real issues about protecting the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence whilst in the care of either parent.
There is an issue in this case as to the views expressed by both children as recorded in the family reports, and the extent to which I would place weight on these views. There is an issue about the nature of [X]’s relationship with his mother, and the extent to which this should influence the type of contact order that is made. There is an issue about the nature of [Y]’s relationship with his mother and the extent to which this relationship is of potential concern.
There is an issue about the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent. It is conceded by both parties that if an order is made for [Y] to live with his father, that I will need to consider the effect of changes in his circumstances, and in particular separation from his mother. The geographical distance that separates the parents means that I will need to consider the practical difficulty and expense of contact taking place.
In the case, both directly and indirectly, both parents expressed concern about the other’s capacity to provide for the needs of the children in their care. Indirectly there are also issues about their respective attitudes to the children and to their respective responsibilities of parenthood.
There were also issues of family violence, but in the end result I was not able to make findings in relation to the allegations that had been made, and I find that, in any event, whether or not family violence occurred, that is not a matter that would ultimately influence the orders that I make.

Applicable law

In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1)     The objects of this Part are to ensure that the best interests of children are met by:
(a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)     parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)     to maintain a connection with that culture; and
(b)     to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)     to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)     family violence.
(3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)     If:
(a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)     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; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)     how far apart the parents live from each other; and
(b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)     the impact that an arrangement of that kind would have on the child; and
(e)     such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)     Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)     The primary considerations are:
(a)     the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)     the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)     Additional considerations are:
(a)     any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)     the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)     other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)     the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)     any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)     the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)     any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)     the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)     if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)     the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k)     any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii)     the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)    any other fact or circumstance that the court thinks is relevant.

Significance of Time

Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.

Parental Conflict and Shared Parenting

Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[2]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[2] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’[3] and the containment of acrimony may prove to be central benchmarks.
[3] Personal communication, Bruce Smyth, October 2007. (endnote from article)
This research is consistent with earlier research undertaken by Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[4]
[4] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
Apart from where it is specifically discussed in these reasons, this research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.

The family reports

The first family report was prepared by Family Consultant O’Donohue. It was based on interviews conducted on the 16 and 17 June 2008 and on 1 and 2 July 2008. The report took the usual form. At the time of the first report, the mother’s proposal was that [X] return to live with her and with [Y] and that they spend time with their father on each alternate weekend. The father, at this time, sought a continuation of the arrangement whereby [X] lived with him and [Y] lived with the mother, but that they have time with each parent.
The Family Consultant’s observation of [X] was that he desired to live with his father and that this arose from an affinity with him and a shared interest in activities. [X] explained to the Family Consultant that he was unhappy living with his mother and that he felt that his mother prevented him from seeing or contacting his father. [X] reported frequent conflict with his mother culminating in an incident where his mother physically restrained him.
The Family Consultant observed [Y] to be a quiet and nervous child who was uncomfortable discussing the family situation. The Family Consultant noted at paragraph 32 of this report that [Y] gave:
…an overarching impression of sadness. He spoke of the difficulties he has experienced in adjusting to recent changes and identified that he has few friends. [Y] described himself as being sad and missing his father and [X]. [Y]’s presentation on the day of assessment was in contrast to how he was described by his parents, especially his mother, who spoke of him being happy and largely unaffected by the family breakdown.
The Family Consultant noted that [Y] frequently expressed a desire to live with his brother and that these comments were unprompted.
The observation of the children’s interactions with both parents resulted in the Family Consultant noting how both boys gravitated towards their father. [Y] was clearly interacting closely with his mother, whereas [X] was not. The evaluation of the Family Consultant noted that there were high levels of acrimony between the parents and that the boys had experienced the visible conflict between the parents which occurred in front of them. The parental relationship was poor and was characterised by little communication and parental hostility, all of which the boys have been exposed to. The Family Consultant notes, at paragraph 41, that the boys living apart is not an ideal arrangement and it is one which has caused stress and sadness for the boys, especially [Y]. She refers there to the protective function that siblings provide for one another, especially after separation.

The report was taking place at a time when the boys were not spending any time with each other. Clearly the Family Consultant was concerned about this. The Family Consultant noted that both boys expressed views. [X]’s wishes are clear in that he would like to remain living with his father, and she noted that it appears unrealistic that he would accept a return to his mother’s care. She also noted that [Y] expressed a desire to live with his brother and spend more time with his father. This was in the context of [Y] openly expressing his sense of loss and sadness, and again she notes that facilitating time between the boys is a priority.
The Family Consultant did note at paragraph 44, however, that at [Y]’s age and stage of development he lacked maturity to take a long term view of this situation and he presents as a malleable child who may have shifting loyalties. She warned that placing too much weight on his wishes would be problematic at this stage.
The recommendations of the Family Consultant in the first report were that the parents retain equal shared parental responsibility, that [X] continue to live with his father and [Y] live with his mother, and that the boys spend time together each weekend, to alternate between the parents, and likewise in relation to the school holidays. She recommended that counselling referrals be arranged for both boys and that the parents likewise engage in a therapeutic program to assess their conflict and co-parenting.
I note that quite some considerable effort appears to have been applied by both the parents and their legal representatives to implement the arrangement for the boys to spend time together and with each parent, but, as I noted in the introduction, that appears to not have been successful.
The second report was prepared by Family Consultant Starling, and was based on interviews held on 28 April 2009. The family report was released to the parents on 29 May 2009. In this report, the mother’s proposal continued to be as set out in the original report. However, the Family Consultant noted that the mother appeared to be somewhat uncertain about this and was reconsidering the question. She noted that by this time, the father had filed an amended response, and that he proposed that both children live with him. The Family Consultant noted with concern that, based on what each parent told her, there appeared to have been minimal or no change in the nature of the relationship between the parents since the preparation of the first report. Their perceptions of each other were intensely negative and it was apparent that the minimal communication and high level of mistrust and conflict between the parents were still present.
She noted that [X], who by this stage was 14 years and three months old, presented as a typical adolescent boy who described his relationship with his mother as complicated, and including feelings of anger that she does not understand him and will not understand that he wants to live with his father. He clearly resented having to spend time with his mother on occasions when he would prefer to be socialising with his friends. He also said that it was difficult for him to spend time with his mother, as it leaves him feeling emotions that are difficult to handle, including love, hurt and anger. He did say, however, that he would consider visiting his mother once a month if this was on his own terms. [X] described his relationship with his father as a close one, and likewise, that he had a good relationship with Ms S, his father’s partner.
In relation to [Y], who was, by this stage, eight years and five months old, the Family Consultant initially observed him to be reserved and nervous about speaking with her. She reports at paragraph 21 of the report that:
…he stated on one occasion that he was worried about what he would talk about, as his parents were upset about what he said during the last assessment.
Regrettably, it is one of the themes of the evidence in this case that both parents have, in one way or another, involved the children in these proceedings. At paragraph 22 of the report, the consultant noted:
22. [Y] offered that he had previously said that he wanted to live with his father, but had changed his mind. He said that his mother “really wants” him to live with her, and his father wants him to choose where he wants to live. While discussing his feelings around these issues, [Y] said that if his mother and father were happy with him living in either parents’ home, that he would like to live with his father, and that he didn’t want to hurt his mother, as he loves her and worries about her.
[Y] indicated that he missed his brother [X] and would like to live with him, and also spoke positively about his stepbrother [Z].
It is necessary to set out the Family Consultant’s evaluation in full:
27. [X] and [Y] feel a pressure to choose one parent over the other. The parental relationship is of such a poor quality that the children feel little permission to have relationships with both parents and they understand that each parent has a negative view of the other. This places the children in an impossible position, they are being asked to reject the other parent for whom they love, being asked to negotiate a difficult relationship that their parents cannot negotiate with any success and are being asked to reject part of themselves as they are part their mother and part their father. This can lead to problems in children including anxiety, depression, academic failure, acting out behaviour (including anger) and a breakdown of the relationships that the child has with one or both parents and siblings.
28. Of concern is Ms Ryder’s minimal insight into the emotional issues that [X] and [Y] are facing. Her ability to focus on the children and their emotional well being may be in part be due to her focus on the relationship breakdown with Mr Sandford and the ongoing issues that she feels she is facing with him. She may be assisted in engaging in therapeutic intervention to help her be more emotionally available to the children.
29. Mr Sandford had greater insight into the emotional issues facing the children and they feel less pressure to behave or feel a certain way in front of him. However, [X] and [Y] are well aware that the father and Ms S do not like their mother. It would be in the children’s best interest if the father and Ms S resolve their negative feelings towards the children’s mother. They may be assisted in attending a program for step families or parenting after separation programs.
30. [X] was clear and determined in his view. It would be detrimental to him and his troubled relationship with his mother to try to force him to live with his mother or to spend time with her against his wishes. It is also unlikely that he will begin to follow additional Orders considering the history that indicates he has been making decisions about the time he spends with his mother.
31. [Y] is in a difficult position. He loves his mother and loves his father and is desperately trying to maintain his relationships with both of them. He is a sensitive boy who is putting his own feelings aside in an attempt to ensure his mother’s happiness. The assessment showed that [Y] has felt considerable guilt at wanting to live with his father and that this is his main reason for changing his mind about where he wants to live – he does not want to upset his mother. Mr Sandford showed considerable insight into the emotional difficulty that [Y] faces and was sensitive to [Y]’s position of not wanting to hurt his mother. It is of concern that Ms Ryder continues to believe that [Y] is a care free and happy child several many indications otherwise.
32. [Y] would benefit from living in an environment where he feels permission to consider his own feelings as a first priority and not feel responsible and worried about the parent he is living with, where he is encouraged to have a relationship with both parents and where he can gain support and protection from his sibling relationships. These considerations are more available for [Y] should be live with his father.
Ultimately, the Family Consultant recommended that the parents share parental responsibility and that both [X] and [Y] live with the father. She recommended that [Y] spend time with his mother each alternate weekend from Friday 4 pm to Sunday 4 pm, with changeover at a children’s contact centre. It was also recommended that [Y] spend equal amounts of time in each parent’s home during school holidays, and that the parents organised for [Y] to be assessed for suitability regarding a group program for children who are living with separated parents in conflict.
The Family Consultant was cross-examined. She confirmed that she saw significant benefits to both boys living in the same household because at the moment, especially for [Y], he was under great pressure to choose one parent over another, and also, there was a risk that he would lose his relationship with his brother. She was asked to explain what risks would be experienced by [Y] if he were not moved from his mother. She described this risk as being a great one and of losing his relationship with his father and brother. She said that there is so much pressure on [Y] to put his mother’s needs above his own needs that there is a real risk that his legitimate needs would not be met.
It was put to the Family Consultant that the mother made certain comments to [Y] to the effect that if he did not live with her, that she would die. The context of this comment is that it was made towards the end of 2008, and that it caused [Y] to be sad for some period of time thereafter. I note that I make findings to this effect elsewhere in my judgment. In response, the Family Consultant explained that the impact on [Y] would be that he would have an overriding sense that he is responsible for his mother’s health and wellbeing. Given that he is a sensitive child by nature, this puts him at the risk of anxiety and also impacts on his self-esteem. She describes it as “a terrible burden for him to carry around.”
She was asked to comment on how the court should implement an order for [Y] to live with his father, if that order was found to be the one that was in his best interests. The Family Consultant explained that if the order was made, it should be done in one step with no phasing in, and that there must be no sense of needing to get permission to change or to negotiate a change. In addition, she emphasised the importance of having counselling to help him.
The Family Consultant did not appear to be overly concerned about any risk of the father not complying with any contact order between [Y] and his mother. She agreed that the relationship was problematic, but ultimately thought that the father was more emotionally attentive to the children’s needs and would therefore be more likely to comply with the orders. Indeed, she said, overall, the father was more emotionally attuned to the needs of the children than the mother was.
In relation to [X], she was asked to explain why she did not recommend an order for contact. The Family Consultant explained that she thought that [X] would simply dig his feet in if an order was made, and hence in that regard it would be counterproductive. She thought it was important for [X]’s relationship with his mother to be encouraged, but it needed to be recognised that this was taking place from a low base. She thought that counselling would be difficult but if the parents could improve their relationship, there was some hope. She did not think the court could do anything in this regard.
The Family Consultant was cross-examined by the mother’s counsel, who put to her some of the problematic behaviours that [X] was experiencing in his father’s home and, for example, at school. The Family Consultant did not seek to minimise these problems, but emphasised that, in the context of this case, it was not about criticising the father’s parenting of [X] or even, for that matter, criticising the mother’s parenting of [Y], but ultimately about making a decision based on the best interests of the children, having regard to the available options.
The Family Consultant said her recommendations were in the best interests of the children. She acknowledged that there would be potential problems with [Y] going to his father’s household, including adjustment issues and [Y]’s relationship to his older brother [X], and she even conceded that there was the risk that [Y]’s relationship to his mother might be influenced by [X]’s dysfunctional relationship with his mother. However, in the end result, the difference was, she emphasised, that [Y] wants to see his mother, whereas [X] does not.
The Family Consultant painted a rather dismal picture, and that is that [Y], in his mother’s household, ran the risk of losing his relationship with his father and brother, and also that [Y], in his father’s household, ran the risk of losing his relationship with his mother. On balance, she was less concerned about the risks of [Y] in the father’s household.
When cross-examined by the Independent Children’s Lawyer, the family consultant did express concern about the father’s past negative influence on [X] in terms of his relationship with his mother, and in particular, a criticism that he did not do enough to facilitate it. She also expressed concern about the mother’s consistent but obviously inaccurate depictions of [Y] as being a happy and carefree child which, the Family Consultant suggested, indicated that she may well be out of touch with reality in this case.
I accept the evidence found in both family reports and I accept the recommendations made by the Family Consultant, and there was nothing that was put to her in cross-examination that would undermine the weight that I would otherwise place on her recommendations, subject, of course, to the other evidence in this case.

Findings that arise out of the evidence of the Family Consultant

I find that the mother lacks insight into the needs of her son, [Y], and this raises concerns in my mind about her capacity to provide for his emotional needs. It also raises a concern about her attitude towards [Y] and her attitudes towards her responsibilities as his mother. I unequivocally accept the Family Consultant’s observation and assessment of [Y] as “sad.” The mother’s steadfast refusal in cross-examination to accept this reflected poorly on her. It was in some respects a convenient denial on her part so far as her case was concerned.
Her description of [Y] as “happy and carefree” is so inconsistent with the independent observations of two Family Consultants as to raise concerns about the mother’s perception of events and her understanding about what [Y] is experiencing at the moment. The concerns that I have stated about the mother are only exacerbated in light of her evidence that she does not accept the statements by [Y] of his desire to live with his brother and father and her failure to attend the therapeutic counselling referred to in the first report.
The concerns I have are also grounded in her admission that she did tell [Y] that if he went to live with his father she would die, even though, as she explained, it was death of a broken heart and she readily conceded that it was the wrong thing to say. The fact is that she, herself, saw the sadness (her description) it caused [Y] for a period of two to three weeks after it was said. The mother gave evidence of her fears of losing all contact with [Y], if he went to live with his father, in the same way as she has lost contact with [X]. These are subjective fears and I need to consider whether they have an objective basis.
I am prepared to recognise that the parental relationship is dysfunctional at the moment and will probably remain so. Both parents have contributed to this. However, I believe both parents will comply with orders that I make. Moreover, the dynamics of the poor relationship that exists between [X] and his mother are not present in the relationship between [Y] and his mother. On this basis alone, I do not accept that she will lose contact if [Y] goes to live with his father.
I am concerned that the mother has been unable to protect [Y] from her own feelings about the father and from the conflict that exists between them. One clear example of this is exhibit ICL1, a letter from the Independent Children’s Lawyer, Ms Temelkovska, to the mother’s solicitor, dated 12 December 2008. There was no objection to the tender of this letter. There was no attempt at any stage to challenge its assertions in the evidence or even in submissions. It describes what I regard as a quite unacceptable event. The letter speaks for itself.
I quote:
As your client is aware, I interviewed [Y] on 4 December 2008. On this occasion he expressed a view that he wished to live with his father. When the matter was before his Honour on 9 December 2008, I relayed [Y]’s views. In addition, I indicated to his Honour that I had concerns that pressure may have been placed on [Y] in relation to his views. Based on my discussions with [Y], I formed the view that your client placed undue pressure on [Y] prior to his interview with me.
On 10 December 2008, I confirmed that I contacted you by telephone and I raised the above issue with you. I requested that you obtain your client’s instructions about whether or not she would be prepared to give an undertaking not to discuss the proceedings with [Y] or where he wished to live. On 11December 2008, at approximately 3.15 pm, I received a telephone call from [Y]. I believe your client was with him at the time because it was clear he was being prompted.
[Y] first said to me that your client wished to speak with me. He then changed his mind and expressed some views regarding his school and where he wished to live. I indicated to [Y] that I would discuss these things with him another day when we could have a better chance to talk. I am extremely concerned that your client is placing undue pressure on [Y] and I believe that your client’s actions are not in [Y]’s best interests.
I intend to bring this issue to the attention of his Honour on the next occasion. Until the matter is next heard, I seek your client’s undertaking that she will not discuss these proceedings with [Y] or gauge his views about where he would like to live. On 24 December 2008, I will be seeking formal orders to this effect.
The mother’s evidence before me merely confirmed to me the accuracy of the Family Consultant’s evaluation of the mother at paragraph 28 of the second report. The Family Consultant’s oral evidence also raised the risk that the mother’s pressure on [Y] creates a scenario where, if he remains with his mother, it will be at the expense of his relationship with his brother and father.
I do not accept that this means that the mother will not encourage and facilitate an ongoing relationship between [Y] and his brother and father. The evidence does not support that finding. Indeed, I was quite impressed with the mother’s resilience in continuing to comply with contact orders for [X], even though he rarely attended. But as the Family Consultant frankly stated in her oral evidence, there was a risk that [Y] will lose his relationship with one parent irrespective of which home he lives in. This is one of the great tragedies of this case.

The father’s evidence

I find that the father also lacks insight about the needs of both [Y] and [X], though, as a matter of degree, it is less than that of the mother. He presented to me as having a more realistic appreciation of the character of both boys and of the nature of their relationship with each other and each parent. Where he demonstrated lack of insight, however, was in terms of understanding his own role and responsibility in the parental conflict and in terms of facilitating [X]’s time with his mother.

Yet I also sensed a degree of helplessness in the father when it came to [X]. That is, that he would try to discipline him and encourage him to spend time with his mother but was faced with an intractability that often, unfortunately, characterises boys of [X]’s developmental stage. I could not find, however, that the father contributed any more to the break down of [X]’s relationship with his mother than the mother did herself. I think even the mother recognised her own role in this in her evidence.
I am not concerned about whether or not the father will facilitate an ongoing future relationship between [Y] and his mother if I order [Y] to live with his father. Whilst I do not rule this out as a possibility, I think that the father has identified the critical difference between the two boys: [Y] wants to spend time with his mother but [X] does not. The father seems to be well supported as a parent by his partner, Ms S. Whilst her attitude towards the mother is somewhat negative, in the context of the issues confronting this family and the court in this case, it is not such as to cause concern about the father’s parenting.

Discussion

Section 60CC of the Family Law Act sets out a number of considerations which I need to take into account in determining what is the best interest order to be made on the facts of this case. Having regard to the evidence, I now proceed to discuss the considerations. I am satisfied that [Y] enjoys a meaningful relationship with both his mother and his father. That will not change in my opinion if [Y] goes to live with his father.
However, there is a risk that if he remains with his mother that [Y]’s relationship with his father will be threatened. The evidence indicates, however, that there is no meaningful relationship at the moment between the mother and [X]. The Family Consultant was quite sceptical about whether there was anything that the court could do to restore this meaningful relationship. The Family Consultant was of the view that it was the parents’ responsibility to firstly repair their relationship as parents before there was any prospect of [X]’s relationship with his mother being repaired. I am not sure that it is within the capacity of these parents to do so.
The most that the court can do is to make an order for contact that provides the opportunity for [X] to rebuild a meaningful relationship with his mother. At the end of the day, and having regard to [X]’s age, I am not sure that anything can be done if he chooses not to comply with any order that the court makes.
In this case there are no direct issues about protecting the children from physical or psychological harm in terms of abuse, neglect or family violence.
A relevant additional consideration is the views expressed by the children and what weight ought to be given to those views. Both children are reported by the Family Consultant to have expressed the view that they should live with their father. The mother contested whether, having regard to [Y]’s age, any weight should be placed upon his views. There is the need to exercise some caution in this regard however. The fact is that [Y] expressed a consistent view, in two reports, but in difficult circumstances. I am prepared to accept that he has expressed a view but whilst I would not ignore this as a relevant consideration, it is not a factor in respect of which I place much weight. In relation to [X], he has consistently expressed the view that not only does he not want to live with his mother but that he does not want to spend time with her.
I do not believe that making no order for contact would be in his best interests and, under the circumstances, whilst I take into account his view, I still intend to make an order that might provide the opportunity for him to spend time with his mother.
[Y] appears to enjoy a good relationship with both parents. However, the nature of his relationship with his mother is of concern to the Family Consultant and is of concern to the court. The mother seems overly dependent on him. It should not be the responsibility of a child [Y]’s age to worry about his mother or to seek to either protect or please her. The mother should know this and it is, accordingly, a disturbing feature of their relationship.
An issue in this case is the willingness of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent. There are real issues as regards both the mother and the father in this regard. I am satisfied that the father could have done much more to encourage [X]’s ongoing relationship with his mother but, as time has gone by, [X]’s maturity is a matter that is increasingly difficult to ignore.
The Family Consultant has expressed concerns about whether the mother will facilitate an ongoing relationship between [Y] and his father and brother if he remains living with the mother. I can understand the basis of this concern. However, it must be recognised that there is a real risk of failure to facilitate an ongoing and continuing relationship in both households. If I had to choose where I thought the greater risk lay, I would say it lays in the mother’s household, as opposed to the father’s household. The main factor here is my acceptance that [Y] does want to spend time with his mother, even though [X] may not.
I recognise that if I make an order for [Y] to live with his father, this is going to be a significant change in his circumstances and will take him away from his mother with whom he has been living for all of his life. It will involve a change of school, a change of friends and a significant change of locality. Moreover, the Family Consultant gave oral evidence to suggest that if a change of residence is made, it ought to happen immediately and in one step.
This, of course, is a recipe for a significant and potentially stressful change for [Y]. However, the circumstances in his mother’s household are, regrettably, less than ideal for the reasons that I have set out elsewhere. There is the risk that his relationship to his brother and father will be lost if he remains in the mother’s household. The Family Consultant gave quite graphic evidence of the potential implications for [Y] if his mother continues in the nature of the relationship that she has with him.
Under the circumstances, I recognise that there will be significant change for [Y] but, at the end of the day, if the overall assessment of the relevant considerations point towards [Y] moving with his father, then the disadvantages will need to be weighed against the advantages.
There are issues of practical difficulty and expense in this case. The father lives in the Illawarra region and the mother in the [C] region. On balance, I am going to accept the suggestion of the Independent Children’s Lawyer which puts the main onus on the father to do the travel for weekend contact between [Y] and his mother, and the mother as regards remaining contact. I a confident that the father will accept this responsibility, because he recognizes more than the mother the importance of maintaining [Y]’s relationship with the other parent.
Having physical contact between these parents certainly is problematic and trying to set up a contact arrangement so that [X] also has the opportunity to spend time with his mother makes the drafting of the orders particularly challenging. Again the proposal of the Independent Children’s Lawyer is very useful in this regard.
Despite the mother’s criticism of aspects of the father’s parenting, I still find that he does have the capacity to meet the needs of the children, including their emotional and intellectual needs. I think that he is well supported by his partner. I have concerns, however, about the mother’s capacity to provide for the emotional needs of [Y], having regard to the evidence of the Family Consultant.
I think the mother’s unhealthy relationship with [Y] also reflects poorly in terms of her understanding of her responsibilities of parenthood. I find that she has clearly failed to protect him from the conflict between the father and herself and has unnecessarily involved him in these proceedings. Whilst the father is certainly not free from any criticism under this consideration, the evidence does tend to suggest that the mother is of greater concern in this regard.

The orders to be made

The mother’s counsel submitted to me that she did not object to an order for equal shared parental responsibility and, in fact, consented to this. Certainly it was apparent that the mother conceded that [X] should live with his father but her further submission was that if the court accepted the Independent Children’s Lawyers proposal, then she would want an order for equal time with [Y] just in case she does move down to the Illawarra region.
I find this problematic. The high level of conflict and low level of communication in this case makes equal time unrealistic. In any event I do not know when and indeed if the mother will move to the Illawarra region. During the course of the proceedings that appeared as a possibility but then rapidly evaporated. Under the circumstances, I am not inclined to make an order at this particular point in time that if the mother moves down to the Illawarra that she should have equal time with [Y]. That is a matter that, I think, is appropriately revisited when and if it actually occurs. For my part, I record that I would not regard the mother’s relocation to the Illawarra as a disentitling consideration for Rice & Asplund purposes.
On balance I think that the application of the considerations referred to in section 60CC results in an order for both children to live together with the father and for [Y] to spend time with his mother. This has all the benefits of reuniting the boys in their sibling relationship and will, at least, protect [Y] from some of the concerns about his mother that the Family Consultant and I have expressed. It will be a difficult change for the mother to accept and it will be, at least in the short-term, a difficult adjustment for [Y].
I accept the evidence of the Family Consultant that this change should be brought about almost immediately, and accordingly the orders will provide for their implementation within 72 hours of the orders being made.
As the presumption of equal shared parental responsibility applies I record that I have considered but not regarded as either in [Y]’s best interests, or reasonably practicable, an order for equal time. Having regard to the matters set out above, the orders that I propose are as near as possible to substantial and significant time as the facts of this case allow.
In relation to [X], I accept the evidence of the Family Consultant that it would be problematic to make an order for contact unless it is dependant on his desire for this to happen. I am satisfied that the father will not place any obstruction in this regard.
The form of order proposed by the Independent Children’s Lawyer is, in my opinion, the most child focussed and, subject to a few minor amendments, I intend to make orders in those terms. The notation reflects the evidence as I have understood it. I propose to make orders and publish my reasons on Friday 30 October 2009 at 2.00pm. The orders for [Y] to live with his father will need to be implemented within 48 hours.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate:

Date: 30 October 2009