Sawyer & Sawyer & Anor
[2011] FMCAfam 780
•10 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAWYER & SAWYER & ANOR | [2011] FMCAfam 780 |
| FAMILY LAW – Children aged 11, 8 & 6 – presumption of equal shared parental responsibility – equal time regime – whether such a regime in best interests of children concerned – high conflict between parties – what is reasonably practicable – communication skills – weight to be given to views of children, particularly oldest child, provided to family report writer – children’s maturity and level of insight – assessment of other section 60CC factors – oldest child not biological child of applicant but regards him as father – second respondent oldest child’s biological father – biological father has had relationship with child prior to these proceedings – meaningful relationship – best interests. |
| Family Law Act 1975, ss.4, 60B, 60CC, 61DA, 65DAA, 65DAC, 65DAE |
| Sawyer & Sawyer [2010] FMCAfam 329 Goode & Goode (2006) FLC 93-286 C & S [1998] FamCA 66 Morgan & Miles [2007] FamCA 1230 MRR v GR [2010] HCA4 Godfrey v Sanders 208 FLR 287 H v W (1995) FLC 92-598 R & R: Children’s Wishes (1999) 25 Fam LR 712 Bright v Bright (1995) FLC 92-570 Astor & Astor [2007] FamCA 355 |
| Applicant: | MR SAWYER |
| First Respondent: | MS SAWYER |
| Second Respondent: | MR RICHARDS |
| File Number: | ADC 427 of 2010 |
| Judgment of: | Brown FM |
| Hearing dates: | 8, 9, 23 & 24 June 2011 |
| Date of Last Submission: | 19 July 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 10 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Read |
| Solicitors for the Applicant: | Boril Olds Solicitors |
| Counsel for the Respondent: | Ms Lee |
| Solicitors for the Respondent: | Polly Dixon & Co |
| Counsel for the Second Respondent: | Mr Richards in person |
ORDERS
Mr Sawyer “the father” and Ms Sawyer “the mother” have equal shared parental responsibility for the children [X] “[X]” born [in] 2000; [Y] “[Y]” born [in] 2002; and [Z] “[Z]” born [in] 2005 (herein referred to as “the children”).
The mother and the father are to consult with each other and to make a genuine attempt to resolve any disagreements arising between them about all decisions relating to major long-term issues pertaining to the children, which include, but are not limited to, the following issues:
Øthe children’s education (both current and future);
Øthe children’s religious and cultural upbringing;
Øthe children’s health;
Øthe children’s names;
Øchanges to the children’s living arrangements that make it significantly more difficult for the children to spend time with one or other of their parents.
The children live with the father.
The mother spend time with the children as follows subject to other orders made herewith dealing with special occasions:
(a)During each school term on alternate weekends of each fortnight from after school on Friday until the recommencement of school the following Monday;
(b)During school terms in the other week of each fortnight from after school on Wednesday until school recommences the following Thursday;
(c)For the first week of all short school holidays commencing at the conclusion of school on the Friday of the last day of school term and concluding at 6:00pm on the middle Saturday of such holiday;
(d)For one half of each of the end of school year Christmas school holiday period (subject to the arrangements for special occasions specified hereunder) the halves to be agreed between the parties and failing agreement to be the second half in the 2011/2012 school holiday period and each alternate year thereafter and the first half in the 2012/2013 year school holiday and each alternate year thereafter;
(e)At any other times as agreed between the parties.
During the periods the children are in the care of their father the mother have telephone communication with the children each Tuesday, Friday and Sunday between 7:00pm and 8:00pm with the mother to initiate the call to a telephone number to be nominated to her by the father.
During the periods the children are in the care of their mother the father have telephone communication with the children each Wednesday and Saturday between 7:00pm and 8:00pm with the father to initiate the call to a telephone number to be nominated to him by the mother.
Mr Richards “the biological father” spend time with [X] subject to other orders made herewith dealing with [X] spending special occasions with the father and mother as follows:
(a)During school terms on two weekends per term from after school on Friday until school recommences the following Monday the weekends to be as agreed between the father and the biological father and to occur on weekends on which [X] would otherwise be in the care of the father pursuant to these orders.
(b)During each mid year school holiday and during each end of year school holiday for a period of five consecutive days on each such occasion the specific days to be agreed between the father and the biological father and to occur during periods of each such school holiday during which [X] would otherwise be in the care of the father pursuant to these orders.
In the event the father and mother are unable to agree in respect of arrangements for the children to spend time with each of them during the period of Christmas in any year the following provisions will apply:
(a)The children spend time with the mother from midday on 24 December 2011 until 3:00pm on 25 December 2011 and each alternate year thereafter and spend time with the father from 3:00pm on 25 December 2011 until 9:00pm on 26 December 2011 and each alternate year thereafter.
(b)The children spend time with the father from midday on 24 December 2012 until 3:00pm on 25 December 2012 and each alternate year thereafter and spend time with the mother from 3:00pm on 25 December 2012 until 9:00pm on 26 December 2012 and each alternate year thereafter.
In the event the father and mother are unable to agree in respect of arrangements for the children to spend time with each of them during the period of Easter in any year the following provisions will apply:
(a)The children spend from the conclusion of school on Maundy Thursday 2012 until 6:00pm on Easter Saturday in 2012 with the father and each alternate year thereafter and from 6:00pm on Easter Saturday 2012 until 6:00pm on Easter Monday 2012 and each alternate year thereafter with the mother.
(b)The children spend from the conclusion of school on Maundy Thursday 2013 until 6:00pm on Easter Saturday in 2013 with the mother and each alternate year thereafter and from 6:00pm on Easter Saturday 2013 until 6:00pm on Easter Monday 2013 and each alternate year thereafter with the father.
The mother’s time with the children is suspended on Father’s Day from 10:00am to 5:00pm if Father’s day falls within the mother’s time and the children are to spend time with the father for such period.
The father’s time with the children is suspended on Mother’s day from 10:00am to 5:00pm if Mother’s day falls within the father’s time and the children are to spend time with the mother for such period.
In order to avoid any misunderstanding the time the mother spends with the children pursuant to order 4(a) hereof and (b) hereof, is suspended during all school holidays and will recommence with the beginning of each school term with time on Wednesday in the event the children have been in the care of the mother for the second half of the preceding school holiday or with weekend time in the event the children have been in the care of the father for the second half of the preceding school holiday.
In order to avoid any misunderstanding the division of the end of year school holiday periods referred to in order (4)(d) hereof is to be calculated by reference to the fact that each such period is deemed to commence at 9:00am on the first Saturday after school has ceased for the year and end at 6:00pm on the last Sunday prior to the commencement of school the following year and the mid point and handover time (unless the parties agree otherwise) will be 6:00pm on the fourth Saturday during the holiday period.
All handovers that cannot occur at the children’s school shall take place outside the [T] Police Station.
The parties, including the biological father, are at liberty to make arrangements for the children to spend time with any of the other parties to these orders, independent of these orders, at any other times and on any other conditions as they may agree from time to time. It being noted however that the mother does not have to consent to any arrangement reached between the father and the biological father regarding [X] spending time with the biological father.
The mother and father shall;
(a)keep the other parent informed at all times of their residential address and contact details, including details of landline and mobile telephone numbers and email addresses;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner, including psychologists and counsellors, who treat the children and authorise those practitioners to provide the other parent with all information that they are lawfully able to provide to the parents about the children;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children. This order authorises any treating medical practitioner to release information concerning the children’s medical condition to the other parent.
The father shall advise the biological father in the event that he changes his residential address or other contact details in respect of [X] and keep the biological father informed of all relevant issues relating to [X]’s health and educational performance.
The mother and father are directed, by virtue of this order, to authorise the principal of each school attended by the children from time to time to give to each parent information about the children’s educational progress and any necessary information relating to extramural activities in which the children are engaged and supply each of them with copies of school reports, photographs, certificates and awards obtained by the children provided that each such document is to be supplied at the cost of the parent receiving it.
The parties comply with any treatment regime recommended for the child [Z] by the Haematology Section of the [omitted] Hospital and that each informs the other of any changes to the treatment regime by entry in the communication book.
The parties (including the biological father) be restrained and an injunction in hereby granted restraining each of them from:
(a)Removing the children from the Commonwealth of Australia without the prior written consent of the other party;
(b)Changing the said children’s school from [T] without the prior written consent of the other party;
(c)Denigrating the other of them in the presence or hearing of the said children; and
(d)Causing or permitting any other person to denigrate the other of them in the presence or hearing of the said children.
The father and mother exchange all pertinent information concerning the health, education, sporting activities and other extramural commitments and in particular so far as [Z] is concerned advise the other if [Z] suffers a bleed which requires additional or any emergency treatment in writing by means of a communication book which is to be exchanged between them at each handover of the children.
Subject to orders (22) and (23) hereunder the father and the mother each have the right to attend at the children’s school for all events that are routinely attended by parents, including parent/teacher interviews.
The mother is restrained and an injunction is issued restraining her from attending the children’s sports training and Saturday sporting matches on days when the children are in the care of the father pursuant to these orders.
The father is restrained and an injunction is issued restraining him from attending the children’s sports training and Saturday sporting matches on days when the children are in the care of the mother pursuant to these orders.
All applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Sawyer & Sawyer & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 427 of 2010
| MR SAWYER |
Applicant
And
| MS SAWYER |
First Respondent
| MR RICHARDS |
Second Respondent
REASONS FOR JUDGMENT
Background
These proceedings concern final parenting arrangements for three children – [X] born [in] 2000; [Y] born [in] 2002; and [Z] born [in] 2005.
The case began as an interim relocation case. Over the Christmas/New Year period of 2009/2010 the children’s mother, Ms Sawyer took the children to [M] in Western New South Wales. [M] is her home town. Ms Sawyer wanted to start a new life for herself and the children in [M].
This move was opposed by the father of [Y] and [Z], Mr Sawyer.
Mr Sawyer and Ms Sawyer married [in] 2003. During their marriage and earlier relationship, they lived in the Adelaide area, most recently in [T], on the city’s northern rural edge, where they had purchased a home at Property T, [T].
Mr Sawyer is not [X]’s father. However, he and the mother began their relationship when [X] was an infant and he has always been regarded by all concerned as being [X]’s father. As such, there is no dispute that Mr Sawyer and [X] share a significant level of relationship.
The parties’ relationship fell into serious difficulties in 2009, following the death of Ms Sawyer’s father, which was a very traumatic event for her. She went to [M] with the children, ostensibly to pick grapes and have a holiday over the summer break, but decided to stay. This brought the parties' marriage to an end.
At that time, the mother’s position was that the father was essentially disinterested in the children and left their care largely to her. She also characterised Mr Sawyer as a person who abused alcohol and illicit drugs. She said that the parties' marriage was an unhappy one because of the father’s “constant harassment” and abuse of her.
[Z] suffers from haemophilia. If he sustains a haemorrhage which is untreated, this is potentially a life threatening condition. The mother’s position is that she has always seen to [Z]’s medical treatment and knows what to do in cases of emergency.
Ms Sawyer asserted that the father had never involved himself in [Z]’s treatment and, as a result, was largely ignorant about his condition. For his part, the father was concerned at the prospect of [Z] being in [M], far away from the expert health care available at a metropolitan teaching hospital.
Whilst the mother was away in [M], the father says he discovered irregularities in the family’s finances. It is his position that the mother has had a chronic gambling addiction and has wasted family money. If he has ever monitored the mother’s activities, he says it is only to ascertain whether she is gambling.
Mr Sawyer denies that he is a violent and controlling person. To the contrary, it is his position that it is the mother who is volatile and unstable emotionally. He says her behaviour alienates people and causes her to have a “siege mentality”. In this state of self imposed siege, she is prone to enlist those in authority – mainly the police – to make untrue claims of being the victim of intimidation by others, including him and members of his family.
Mr Sawyer commenced these proceedings on 8 February 2010. He wanted the court to make orders that would see the children returned to the [T] locale. Ms Sawyer wished the court to make orders allowing her to live both provisionally and permanently in [M] with [X], [Y] and [Z].
At the interim stage, I determined that, pending the final hearing of
Ms Sawyer’s relocation application, [X], [Y] and [Z] should return to the [T] area.[1] Ms Sawyer elected to return with them. In those circumstances, the interim arrangement was that the children were to live with their mother and spend time with their father on weekends. [X], [Y] and [Z] returned to the [T] primary school, which they had each attended since commencing school.
[1] See Sawyer & Sawyer [2010] FMCAfam 329
Ms Sawyer had no obvious place to live in the [T] area, as Mr Sawyer continued to live in the parties’ former family home. Initially, she lived with friends in crowded circumstances. Later, she rented accommodation for herself and the children in [E].
Due to the contentious and complex issues raised by Ms Sawyer’s wish to relocate the children to [M], the case was listed for final hearing as soon as possible and a family report ordered. Mr R was the expert nominated to undertake the report. As matters have unfolded, he has revisited the family on several occasions and provided three further family reports.
The next significant event, which occurred, was that [X]’s biological father became involved in the proceedings. He is Mr Richards.
Mr Richards and Ms Sawyer lived together briefly prior to [X]’s birth. Mr Richards has a poor view of Ms Sawyer, regarding her as being dishonest and deceitful during their short relationship.
Until later 2010, Mr Richards had never spent any time whatsoever with [X]. It is however his evidence, which I accept, that he has always regretted not having a relationship with [X] and wished to meet her. It is also his view that [X] herself is entitled to know who her biological father is and meet him.
Following the separation of Ms Sawyer and Mr Sawyer, Mr Richards was contacted by Ms C, Ms Sawyer’s mother, who advised him of [X]’s living situation. Given those circumstances, he sought to be introduced to [X] and begin establishing a relationship with her. Because of his poor regard for Ms Sawyer, a regard which is reciprocated, he proposed that this process of introduction occur via
Mr Sawyer and his home, as he considered that the mother was likely to be ill disposed to facilitating any form of relationship between him and [X].
Ms C and Ms Sawyer are currently estranged from one another and have been so since the death of Mr C – Ms C’s husband and
Ms Sawyer’s father – in August 2008. Ms Sawyer regards her mother as mentally unstable and meddlesome. Ms C regards her daughter as having personality issues and being a less than competent parent, particularly in terms of discipline issues.
Ms C is concerned that Ms Sawyer is intent on severing her relationship with [X], [Y] and [Z], with whom she has previously enjoyed close relationships. Ms C strongly opposed the children going to live in [M] and has since aligned herself with Mr Sawyer, other members of his family and Mr Richards.
Besides [X], [Y] and [Z], there is one other child who is affected by these proceedings, although not directly. She is [B] born [in] 1996.
Ms Sawyer is [B]’s mother. Her father is Mr M. Between 2000 and 2009, [B] lived with her half-siblings, [X], [Y] and [Z] and Mr and
Ms Sawyer. In these circumstances, it seems likely that she will have a close relationship with Mr Sawyer and members of his family, particularly his parents, with whom she shared her childhood.
[B] did not go to [M] with Ms Sawyer and the other children. [B] wanted to continue to attend her school in Adelaide. In addition, Mr M did not agree to [B] leaving Adelaide. Since Ms Sawyer returned to live in the Adelaide area, following the interim orders of 19 February 2010, [B] has lived in an equal time arrangement, moving between her mother’s and Mr M household, on a week about basis.
The orders of 19 February 2010, which resulted in [X], [Y] and [Z] returning to Adelaide, created a tense and difficult atmosphere between Ms Sawyer and Mr Sawyer. Some of the elements, which contributed to this difficult atmosphere, included the following:
·Ms Sawyer’s main source of financial support has been social security. She has found herself in straitened financial circumstances and it has been difficult for her to obtain rental accommodation for herself.
·Ms Sawyer has formed a relationship with Mr P, who is [occupation omitted] in [M]. He cares for his two children in [M]. His situation means that he cannot move from [M] to Adelaide in the short term.
·Ms Sawyer has been visiting Mr P in [M] regularly. She also works, whenever she can, in [M].
·Given the circumstances, it is to be expected that Ms Sawyer would be somewhat resentful at the circumstances which had compelled her to return to the Adelaide area.
·Mr Sawyer asserts that the mother withdrew around $3,500.00 from a Mastercard account, without his permission, during May of 2010, for which he is now personally liable.
·Ms Sawyer asserts that, whilst she and the children were in [M], on 30 January 2010, during a telephone conversation between the two, Mr Sawyer threatened to burn down the house then occupied by her and the children. As a consequence, she obtained a domestic violence order, against Mr Sawyer, from the Local Court at [omitted].
·Mr Sawyer denies this allegation and asserts that it has no basis in fact. He says it was made to buttress the mother’s relocation application and to undermine his relationship with the children. The order included in its terms of reference [B], [X], [Y] and [Z].
·Mr Sawyer asserts that the mother has a gambling addiction and wanted to live in [M] only to escape the financial consequences of her addiction and to spend time with Mr P, not for any reason relating to the best interests of the children.
·On 2 February 2010, as a consequence of examining documents left behind in the former family home, Mr Sawyer says he came upon papers which indicated that Ms Sawyer has made a fraudulent insurance claim in respect of motor vehicle owned by the parties, which she had falsely reported to have been stolen.
·
He reported this matter to the police, during the period
Ms Sawyer was in [M] and prior to the court ordering the children’s return to Adelaide.
·As a consequence of this report, on 30 June 2010, Ms Sawyer was charged by police with obtaining a financial advantage of $6,500.00 by deception and of making a false report to police. These charges have not as yet been resolved in the Magistrates’ Court of South Australia.
·On 23 June 2010, Mr Sawyer’s solicitor filed an affidavit deposed by Ms C, in which she was highly critical of Ms Sawyer. Amongst other things, she deposed that “ever since [Ms Sawyer] was a child I have noticed that if things don’t go her way the mother will retaliate in the worst possible way she can think of.”[2]
·[X] and [Y] engage in [sports omitted] respectively, which they play for teams based in the [T] area. The children have training during the week and attend matches on Saturdays. These arrangements have led to tensions arising between the parties. Each asserts that the other has behaved in a threatening manner towards him or her at the [T] sporting area.
·On 19 May 2010 and 7 July 2010, Mr Richards has filed affidavits which are highly critical of Ms Sawyer. He has indicated his approval of Mr Sawyer’s parenting approach and his disapprobation of Ms Sawyer’s attitude to the responsibilities of being a parent.
[2] See affidavit of Ms C filed 23 June 2010 at paragraph 14
These were some of the factors leading up to the dates scheduled for the first hearing of final issues between the parties, which were 15 & 16 July 2010. At this stage, the mother’s wish to relocate the children to [M] remained the central issue. The first family report of Mr R had been released to the parties on 8 June 2010. This report had not included any input from Mr Richards, who had only inaugurated his application on 19 May 2010.
Mr R reported that [X] was critical of aspects of her mother’s behaviour and had indicted to him a preference to live with Mr Sawyer. Neither [Y] nor [Z] repudiated this preference. Mr R observed the children to have “an observable emotional attachment” with their father.
Mr R described Ms Sawyer as showing obvious signs of stress and anxiety and of being resentful at her perception that Mr Sawyer had frustrated the development of her relationship by preventing her relocation to [M].
In this context, Mr R spoke of the mother’s “siege mentality in her present environment” as being one of the central issues in the case.
Mr R was pessimistic that a relocation of the three children to [M] would resolve the mother’s problems, given the attitudes the children had expressed to him. In these circumstances, he did not favour the relocation.
Against this background, the parties did not wish the matter to proceed to final hearing. Rather they negotiated an arrangement whereby the children would live with their mother for eight nights per fortnight during school terms and for the remaining six nights with their father. The school holidays were to be shared between the parents.
Orders were also made which ensured that [X] and [Y] would attend training sessions for their sporting commitments during the week and their matches on weekends but the parties themselves would not be both present, at the same time, at these activities. Clearly these provisions were indicative of a significant level of tension remaining between the parties.
It was also agreed that the parties would abide by the treatment regime formulated for [Z] by the haematology section of the [omitted] Hospital and they would utilise a communications book to exchange all necessary information about [Z]’s treatment regime and other aspects of his health.
I was given to understand that the parties hoped the conflict between them would gradually reduce over time and they would be able to make this shared care regime work effectively. However, it was made clear that Ms Sawyer had not abandoned her desire to move to [M] at some stage in the foreseeable future. A collateral benefit of postponing the hearing was that it enabled investigations to be carried out as to how best any possible introduction between [X] and Mr Richards could be managed.
Mr R was tasked with preparing a further short family report, involving Mr Richards and [X], to ascertain what [X]’s views as to meeting
Mr Richards were and advise how best the two might be introduced to one another. Ms Sawyer was not prepared to countenance [X] meeting Mr Richards without some form of independent assessment having been made of the issue.
In mid-August of 2010, [X] indicated to Mr R that she wanted to see Mr Richards provided her “old dad” (Mr Sawyer) and [Y] and [Z] were present. On this basis, it was ordered that [X] meet with
Mr Richards, in mid-September of 2010. Later, in November of 2010, [X] reported her experience of meeting Mr Richards to Mr R as follows:
“I call him [first name omitted]…. it is interesting, fun and exciting, want to continue the way it has been so far with Dad (step-father) present … I feel safer … [Mr Richards’] wife is very nice and [first name omitted] (biological father’s child) is a friend … its fine to see [Mr Richards] when Dad can fit it in.”[3]
[3] See family report dated 21 November 2010 at paragraph 41
Mr Richards does not hold Ms Sawyer in positive regard, as is self evident from reading how he has described her in his affidavit material. In these circumstances, it is hardly likely that she would be welcoming of [X] beginning some form of relationship with Mr Richards. Indeed, Ms Sawyer opposed there being any introduction between [X] and
Mr Richards until such time as Mr R had given it his imprimatur.
Accordingly, Mr R briefed [X] before and after meeting Mr Richards and provided feedback about her feelings, not only about her biological father, but also about her mother. From these discussions, Mr R reached the opinion that there was a “chronic relationship problem between mother and [X]…”
[X] continued to be highly critical of her mother’s behaviour. She described her mother as being “angry with everyone and mostly with me…” In addition, when [X] reported that, after she had met with
Mr R and expressed a preference to him (Mr R) to live with her father, Ms Sawyer had yelled and screamed at her ([X]) and tried to hit her before [B] had intervened.
Any hope that the orders of July 2010 would provide the basis for a long term consensus between the parties in respect of the parenting of the children proved to be misplaced. Rather, Ms Sawyer chose to resume her application to move [X], [Y] and [Z] to [M], an outcome which continued to be vigorously resisted by the father.
Following his reinvolvement with the family, as a result of his role in managing [X]’s introduction to Mr Richards, Mr R opinion became stronger that it would not be in the children’s best interests to move to [M] to live permanently.
Mr R was concerned at what he described as the “deteriorating” nature of the children’s relationship with their mother, which was most acute in the case of [X]. In these circumstances, he reported as follows in late 2010:
“Given the three children’s repeatedly expressed views and attitudes, their relatively well established social and education routines and [Z]’s special needs, their mother’s ambition to relocate to [M] to permanently establish a new relationship, appears to be at the expense of the children’s best interests.”[4]
[4] See family report dated 21 November 2010 at paragraph 76
A further final hearing was scheduled for mid February of 2011, following Mr R’ further report into the family and in the context of tensions between the parties intensifying rather than abating. This hearing did not proceed and was rescheduled. At this point each party radically recast their proposals for the final parenting arrangements of [X], [Y] and [Z].
In her amended response filed 10 March 2011, the mother abandoned her application to relocate the children to [M] and indicated her assent to the earlier arrangements for the children, involving the 6/8 day regime and the sharing of the school holidays, becoming a final order. She also indicated her view that it was appropriate that the parties have equal shared parental responsibility for [X], [Y] and [Z].
In his amended application filed 18 February 2011, Mr Sawyer indicated his view that the children should live predominantly with him and spend time with their mother on weekends. More recently again, he has indicated that he seeks an order be made conferring on him sole parental responsibility for [X], [Y] and [Z].[5]
[5] See affidavit of the father filed 3 June 2011 at paragraph 81
It would be his preference that the children see their mother on alternate weekends, from after the conclusion of their sporting activities until the recommencement of school the following Monday. With some reluctance, he would be open to the children spending some overnight time with their mother, in the other week of each fortnight, during the school week.
Mr Sawyer’s case is predicated on the basis that he and Ms Sawyer are incapable of communicating effectively with one another about necessary arrangements for the children. He is also highly critical of the mother’s parenting skills. It is his view that each of the children, particularly [X], has become stronger and stronger in expressing a view to live with him.
Ms Sawyer has indicated her agreement to the court making orders that would see the children living in a shared care arrangement, moving between their parents’ respective homes every seven days. Although she concedes that the parties have some deficits in their communications skills, she believes they are able to exchange information about the children adequately enough, particularly through text messages. She is also concerned that, if the court accedes to
Mr Sawyer’s application, it will mean that the relationship between the children and their older half-sibling [B] will be disrupted and potentially diminished.
Ms Sawyer portrays herself as the victim of harassment and intimidation emanating from the father and members of his family. On the other hand, Mr Sawyer says it is the mother who is incapable of bridling her emotions towards him and his family. He continues to be highly mistrustful of Ms Sawyer and, in these circumstances, asserts it is obvious that a shared parenting regime simply cannot work successfully or be in the children’s best interests.
Mr Richards remains allied with Mr Sawyer, Ms C and the paternal grandparents. He has spent time with [X], at the home of Mr and
Mrs S Senior, who live close by to their son in [T]. Ms C also visits the children regularly there. Both Ms C and Mr Richards assert that Ms Sawyer will not support their respective relationships with the children and this is the only means by which they can see them.
Ms C does not have a formal application before the court. Mr Richards’ position is that he seeks a formal order be made that would see [X] spending two days per month and a part of each school holiday with him. This is in line with the recommendation of Mr R.
In the light of the significant change in the parties’ respective positions, Mr R was asked to revisit the family in the lead up to the re-scheduled final hearing. It his opinion that, over time, each of the children has been expressing a stronger wish to live predominantly in one parent’s household and visit the other one. It is his view that the children favour Mr Sawyer’s household.
For these reasons, Mr R recommends that the children should live with their father, on a full time basis, at [T] and see their mother on alternate weekends from after sport on Saturday until Sunday afternoon with school holidays and other special occasions shared between the parents.[6]
[6] See family report dated 8 April 2011 at paragraph 81
Ms Sawyer is sceptical about the report, which she asserts does not accord with what the children say to her about their residential preferences. She is fearful that the children have been influenced malignly by their father, paternal grandparents and maternal grandmother against her. It is her position that, by abandoning her not unreasonable aspiration to live in [M] with her partner Mr P, she has demonstrated her commitment to the children’s best interests.
At present Ms Sawyer is living in rented accommodation in [E].
Mr Sawyer remains in the former family home in [T]. The two residences are about twenty kilometres apart but the roads between are not generally busy. The children continue to attend [T] School, though Mr Richards has indicated his intention to fund [X] attending a private secondary school in [G].
[X] plays [sport omitted] and [Y] plays [sport omitted] for teams based in [T]. [Z], due to his haemophilia, does not play a contact sport. He has however recently taken up [omitted], which he enjoys. This takes place in [G]. Both parties assert that the other has behaved inappropriately at the children’s sporting activities at [T].
Ms Sawyer asserts that there are few practical implications arising from the children potentially living in two households and she would be able to ensure continuity in the children’s educational and sporting commitments. Mr Sawyer contends that the logistical difficulties are significant and intensified by the parties’ poor and mistrustful relationship.
The parties are not well resourced financially. Ms Sawyer is in receipt of social security. Mr Sawyer is a [occupation omitted]. He proposes reducing his hours of work if the children live predominantly with him. The parties’ major asset is their former family home. It is worth around $240,000.00 but is encumbered by a mortgage of around $160,000.00. In addition it is subject to a charge in favour of the Legal Services Commission of South Australia relating to Ms Sawyer’s legal costs arising from proceedings between her and Mr M concerning care arrangements for [B]. The house is registered in Mr Sawyer’s sole name.
Ms Sawyer has not formally commenced proceedings in respect of the settlement of matrimonial property issues between her and Mr Sawyer. It is her position that she has made contributions towards the acquisition and preservation of the [T] property and is entitled to realise those contributions in cash. Mr Sawyer’s position is that the parties’ equity in the property is small. He is vehemently opposed to any suggestion that the property be sold. It is only to be expected that the prospect of property proceedings between the parties would ratchet up the already high level of tensions between them.
Ms Sawyer continues in her relationship with Mr P. They view their relationship as a strong and committed one. Mr P tries to visit the mother once every month or so. She travels to [M] during school holidays to spend time with him. The issues arising from conducting a long distance relationship are likely to add to the stresses surrounding the mother.
Mr Sawyer has been involved with Ms H for a little over a year. She moved into the father’s home at the beginning of May 2011. Ms H has a daughter, [L] who will be two at the end of July, from an earlier relationship. At present [X] and [L] are sharing a bedroom whilst the children are staying with him.
These proceedings are directed towards resolving this dispute between the parties and, as far as possible, finalising arrangements for [X], [Y] and [Z]’s care. Whatever is the ultimate outcome of the case, the children’s best interests remain the paramount or most important consideration.
Issues
The case centres on the court’s examination and, if possible, resolution of the following issues, following its examination of all the relevant evidence:
·What are the views of the children? What is influencing those views? Are the children sufficiently mature to be able to express a view as to where they wish to live? In this regard are the views of [X] on the one hand different to those of [Y] and [Z] on the other?
·If [X] does have a strong preference to live with her step father, is it appropriate that this view influence the outcome of the case so far as [Y] and [Z] are concerned?
·Are the parties’ present circumstances conducive to them having a shared care regime or equal time arrangement for the parenting of the children?
·In particular, what are the implications of the parties’ impaired facility to communicate with one another in respect of the successful implementation of such parenting regimes?
·Who of the parties is currently driving the atmosphere of hostility and confrontation between them? Is one of them more at fault than the other in respect of this unfortunate state of affairs? Is it probable that passions will cool once these proceedings are resolved?
·Is one of the parties better placed than the other to manage [Z]’s haemophilia? Are the parties able to manage his condition in a shared parenting situation?
·How should parental responsibility for the children be allocated between the parties?
·What are the respective parenting skills of the parties?
·What is the significance of the children’s relationships with their paternal grandparents and maternal grandmother? If these relationships are important to the children, what outcome is likely to best facilitate their continuation?
·What is the significance of the children’s relationship with [B]? How should their relationship with their older half sibling, who is living according to a different regime to them at present, be best maintained?
·Given [X]’s complex familial situation, what are the appropriate means for her to extend her relationship with her biological father?
·What are the implications, if any, for the children, of Mr Sawyer’s relationship with Ms H?
·What is the best way to protect the children from any emotional consequences of the hostility between their parents? In particular, is it necessary for orders to be made restricting their attendance at sporting activities attended by the other?
·What weight should be given to the various reports compiled by Mr R?
The legal principles applicable
Part VII is the part of the Family Law Act 1975 which deals with orders relating to children. The service of [X], [Y] and [Z]’s best interests is the most important consideration in this case [Family Law Act s.60CA].
In determining how the best interests of any children concerned are to be met, the court is directed to consider a list of objectives, which the Parliament has set out in section 60B(1) of the Act. These objectives are as follows:
“(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.”
Accordingly, the provisions in the Family Law Act, relating to children, rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm, as a result of being exposed to abuse, neglect or family violence.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The legislation provides a checklist of matters for the court to consider in determining how any individual child’s best interests may be served. These considerations are set out in section 60CC of the Act. There are two categories of considerations – primary considerations and additional considerations.
There are two primary considerations [section 60CC(2)] – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual circumstances pertaining to any child can be addressed and an appropriate idiosyncratic order made.
The primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act1975 section 61DA]. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused or neglected the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the Court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
In this case, Mr Sawyer primarily seeks that he should have sole parental responsibility for [X], [Y] and [Z]. It is his position that the presumption of equal shared parental responsibility is rebutted because the totality of the evidence led before the court indicates that it would not be in the children’s best interests for their parents to share equally parental responsibility for them.
The mother’s position is that the parties should share parental responsibility for the children equally and from this it should follow that the court should make orders ensuring the children spend either equal periods of time or significant periods of time with each of their parents to reflect this equality of responsibility for the children.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should “spend” equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned. Again, the aim of the legislation is to enhance the parent/child relationship concerned through the child being able to spend time with a parent in a variety of settings.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the child concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
Issues relating to a child’s best interest are to be determined by reference to the various matters listed in section 60CC. Issues of practicality are dealt with by section 65DAA(5), which set out a range of matters, which the court must consider as to whether it is feasible for there to be either an equal time or substantial or significant time regime for any child concerned.
The issues of practicality include the following: how far apart are the parties’ homes; what is the capacity of the parents concerned, both now and in future to implement a shared care arrangement; what is the parties’ level of ability to communicate with one another and solve parenting problems consensually; and most importantly what is the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[7]
[7] See MRR v GR [2010] HCA4 at paragraphs 13 and 15
Accordingly, even in cases where the presumption of equal shared parental responsibility applies, it is open to the court to depart from either an equal time regime or a substantial and significant time regime, if such outcomes will not serve a child’s best interests or are not feasible, given the reality of the situation confronting the court. What the court must do is to consider whether either such option is a realistic one for the family concerned.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Accordingly, if the parties hold equal shared responsibility for the children concerned, they would have to consult with one another if either wished to change his/her living arrangements to such a degree that it would impact on the children’s entitlement to spend time with the other parent. This principle, in part, informed my earlier interim decision concerning Ms Sawyer’s obviously unilateral decision to move [X], [Y] and [Z] to [M].
Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
The evidence
In these reasons for judgment, findings of fact are made on the balance of probability. In what follows, statements of fact constitute findings of fact.
The final hearing took place over four days. During those four days, the father, the mother, Mr Richards, Mr S (the paternal grandfather), Ms C, Ms H, Ms K (the children’s maternal aunt) and Mr R gave evidence.
Mr P provided an affidavit for the court. However he did not attend court in Adelaide and no arrangements had been made for him to give evidence by electronic means. Counsel for the father did not object to the court reading Mr P’s affidavit. His evidence is not contentious. He is supportive of Ms Sawyer and views her relationship with [X], [Y] and [Z] favourably. He regards her as a capable parent.
Mr R was an important witness. Unusually, due to the delay in the proceedings and the complicating factor of Mr Ricahrds’ late involvement, he provided four family reports to the court. As a consequence, he met with the children concerned on several occasions. He visited them at both their father’s and mother’s homes and at the residence of their paternal grandparents, who also live in [T].
In these circumstances I accept that Mr R was able to form a rounded impression of the children concerned and develop a rapport with them. His reports were characterised by large portions of direct speech taken from his several conversations with each of the children. I found these quotations to be useful and informative. Mr R did not consider that any of the children were parroting or mimicking the views of any one else in terms of what each said to him.
Mr R had a marked advantage over me in this case in the sense that he was able to interact directly with each of the children and hear them speaking with their own voices. As such, he was able to form a direct and personally informed impression of what sort of children they are and, more importantly, what is their understanding of the dynamics of their parents’ relationship and how this informs any preference which they may have expressed to him.
I, on the other hand, have never met [X], [Y] and [Z]. I have only read and heard about them, primarily from each of the parties concerned who, for obvious reasons, has a vested interest in the outcome of these proceedings. Mr R is independent. He is also very experienced in terms of interviewing and evaluating children and their relationships in the context of parental disputation. Accordingly, his opinion, based on his direct observations of the children, must be given a high level of regard by the court.
All family reports must be considered a “snap shot” in time, which is taken in somewhat artificial and stilted circumstances. Given his extensive involvement with the family, extending over four reports taking place between mid 2010 and early 2011 and comprising visits to the children at their father’s, mother’s and paternal grandparents’ homes, these limitations necessarily apply less to Mr R’s reports than to other reports. In my view, Mr R’s opinion and evidence, based as they are on his direct experience of the children and his conversations with them, must be given a high level of regard by the court.
Mr S seemed to me to be a quintessentially decent and honest person. He is a self employed [omitted]. He and his wife moved to [T] about five years ago to be close to his two sons, Mr Sawyer, the applicant and Mr J. Mr J has five children, whose ages range from fifteen years to early infancy. [X], [Y] and [Z] regard these children as their cousins and are close to them, having grown up with them.
Mr S Senior’s home seems to be an important place for all his grandchildren. There is a swimming pool, trampoline and trail bikes, which the children enjoy using. It seems to be the focus for the respective portions of the Sawyer family to meet and relax together. More recently, Mr Richards and Ms C have been welcome visitors to it.
Mr S Senior described his family as being close knit. I accept that this is so. It is his evidence that it is a rare event that a week goes by without his various grandchildren, including [X], [Y] and [Z], having a sleep over together at his home. In this regard, it is a significant thing that [B] requested to attend the paternal grandparents’ Christmas celebrations last year. Mr and Mrs S Senior welcomed her to their home. [B] attended the occasion secretly from her mother.
This is a small matter but is likely to demonstrate two things. Firstly, it shows how integrated [X], [Y] and [Z] (and indeed [B]) are likely to be into the wider Sawyer family. Secondly, it shows the depths of the suspicion the mother feels for the Sawyer family that [B] had to go behind her mother’s back to attend Christmas celebrations with her brothers and sister. It also shows that the paternal grandparents’ home is warm and attractive to children.
It confirms my view that [X], [Y] and [Z] are likely to feel that their family is deeply divided at present between relatives who support their father and relatives who support their mother. This is not an easy situation for children of the ages of [X], [Y] and [Z], as [B]’s behaviour shows.
However Mr S Senior did not seem to have the same degree of animus for Ms Sawyer as she did for him. In his evidence, Mr S Senior described her as “a very important member of our family” before she and Mr Sawyer had separated. I accept that this was so and that he and his wife have endeavoured to support Ms Sawyer. However there is little doubt that they strongly disapproved of the mother’s actions in moving the children to [M].
Mr S Senior gave evidence regarding his chance encounter with the mother and the children in a shopping centre in July 2010. I accept his evidence that it was the mother who verbally confronted him and directed the children not to speak to their grandparents, rather than visa versa. Overall, it is my finding that it is Ms Sawyer who is driving the unacceptable level of conflict in the children’s family at present.
It is Mr S Senior’s evidence, which I accept, that Ms Sawyer does not allow [X], [Y] and [Z] to speak to their paternal grandparents. He himself does not want to be in conflict with Ms Sawyer as it is his experience that the children find the mother’s shouting and yelling at him and his wife upsetting.
This being his experience of what happens when he comes into contact with Ms Sawyer, no matter how innocuous the circumstances. For this reason, he and his wife have elected to withdraw from any situations where they might encounter the mother. They do not wish to be abused by her again. This means they have stopped going to the children’s sporting activities.
Mr and Mrs S Senior interact frequently with [X], [Y] and [Z], given the children’s frequent visits to their home. It is Mr S Senior’s evidence that the children do not speak about their mother and he is not inclined to inquire of them after her. He acknowledged that the children love their mother but it is his view that they would like her to behave differently and be less angry.
Mr S Senior and his wife provide a great deal of support to Mr Sawyer, including financial support in respect of his parenting of the children. For example, Mrs S takes [Z] to [omitted] weekly and pays the cost of his lessons. They are also assisting with the payment of Mr Sawyer’s legal fees, which seems to be a bone of contention between him and the mother.
Mr S Senior anticipates that he and his wife will continue to support the father’s ongoing parenting of the children, particularly his need to balance his work and family commitments. Given their current extensive level of involvement, I have no reason to disbelieve this evidence. In my assessment, Mr and Mrs S are a positive influence in the lives of both the children and the father.
The paternal grandparents have indicated that they will continue to assist Mr Sawyer in taking [Z] to and from medical appointments and are available to collect the children from school. They have attended some courses and seminars relating to haemophilia. Mr S Senior struck me as a sensible and balanced person.
In this sense, I do not think that the paternal grandfather is incapable of providing an objectively biased or unreliable assessment of his son’s parenting capacity. In this regard, Mr S Senior’s assessment of his son’s parenting of the children, since the shared care regime was inaugurated, is “he has done much better than I thought he would.” This comment suggests to me that Mr S Senior does not view his son through rose tinted glasses.
Ms C’s evidence was sad. It is her position that she continues to love her daughter and is at a loss to understand why the two have become estranged from one another. It is her position that she has always enjoyed a close relationship with all her daughter’s children, including [B].
Ms Sawyer lived with her mother after her separation from
Mr Richards in the period shortly prior to [X]’s birth. As a result, [X] spent her early life living in her maternal grandmother’s home. For that reason, Ms C believes that she and [X] are particularly close.
Ms Sawyer asserts that Ms C favours [X] over the other children and that this is a potentially unhealthy situation.
Ms C deposes that she felt devastated and disempowered when she discovered Ms Sawyer wished to relocate [X], [Y] and [Z] from Adelaide to [M]. Given the poor relations between her and the mother, she feared that this move would mean she would lose her relationship with the children. She did not believe that Ms Sawyer would be motivated to continue the children’s relationship with her in the face of the distance between Adelaide and [M] and the logistical difficulties arising.
This situation has caused her to become aligned with Mr Sawyer and his parents. At present, Ms C spends regular time with the children at Mr & Mrs S Senior’s home in [T]. It was Ms C who sought out
Mr Richards and advised him of the situation regarding [X], leading to his involvement in these proceedings. As chance would have it, he had been unaware that he was living in proximity to his daughter.
For obvious reasons, these factors are likely to have led to the rift between Ms C and her daughter becoming wider. At this juncture, there appears little if any possibility of it being mended. In this context, I accept Ms C’s evidence that Ms Sawyer attacked her verbally, whilst she (Ms C) was waiting to give evidence in these proceedings. This incident confirms my view that Ms Sawyer lashes out, when she feels pressured.
Ms K was a pleasant witness, who seemed guarded in her evidence. It would seem to be the case that she is not particularly close to her mother but does not wish to deepen the rift. She supports her sister, whom she sees on a weekly basis. Ms K has five children, aged from four years to fourteen years. Her youngest son [J] also suffers from haemophilia.
Ms K’s evidence is that [X], [Y] and [Z] have a very close relationship with their mother. I accept that this is so. Because of [J]’s haemophilia, Ms K has a common bond with Ms Sawyer. It is her evidence, which I accept, that Ms Sawyer has a proper appreciation of the seriousness of the condition, so far as [Z]’s health is concerned. She doubts that
Mr Sawyer and his parents have a similar level of insight into the condition, as she and the mother.
Ms H is a young woman aged twenty-one. Accordingly, there is a significant age gap of fourteen years between her and Mr Sawyer.
Ms H describes herself as a mature and responsible mother. I have no reason to doubt this self assessment. I accept that the relationship between Mr Sawyer and Ms H is a loving and committed one.
However, the fact remains that Ms H and Mr Sawyer have been living together for a fairly short period of time. Their relationship is not without its challenges. I would think that the current proceedings would create a significant level of stress for all concerned. There is currently no relationship whatsoever between Ms Sawyer and Ms H. The only interaction between the two women has been one of conflict, at a sporting occasion involving the children, which occurred on Saturday, 30 April 2011.
Ms H has indicated that she would want to have a positive relationship with Ms Sawyer, given the level of involvement she (Ms H) is likely to have with [X], [Y] and [Z] into the future. In order to develop such a relationship, Ms H acknowledges that she and Ms Sawyer need to communicate and a facility to attend the same sporting functions, without a confrontation occurring, would be a positive start in this regard.
Ms H says that she has a particularly close relationship with [X]. To her credit, Ms Sawyer acknowledges that [X] and Ms H enjoy one another’s company and talk about “girly” things together. I accept that [X] and Ms H do get on well. Ms H tutors her in maths and is teaching her how to cook.
At the present time, Ms H is completing her secondary education at a school for mature students. [L] attends school with her. In addition, she is doing a correspondence course in [omitted] through TAFE. She is at school between 10:00am and 2:30pm four days per week.
Mr Sawyer leaves for work at 7:00am. In these circumstances, Ms H plays a significant role in organising the children for school and getting their breakfast. She makes the children’s lunches. However, it is her evidence that she is only at home with the children for short periods of time, as Mr Sawyer tends to their needs when he comes home from work in the afternoon.
Ms H is aware that [Z] suffers from haemophilia. She generally leaves the provision of [Z]’s medication to Mr Sawyer. She has read some literature regarding haemophilia and has deposed that she knows what to do in the case of an emergency. She would take [Z] immediately to hospital.
Ms H confirms that currently [X] and [L] are sharing a bedroom at
Mr Sawyer’s household. Her evidence, which I accept, is that this decision is not related to space issues but came about because [X] enjoys sharing a bedroom with [L]. Whether this situation will continue into the future is unclear.
Although Ms H and Mr Sawyer do not have a long history of living together and parenting their children in tandem, it is my assessment that Ms H is a valuable resource for Mr Sawyer and so necessarily for [X], [Y] and [Z]. However I do not believe that Ms H is attempting, either actively or passively, to supplant Ms Sawyer’s role with the children.
The main focus, in this case, has been on Mr Sawyer and Ms Sawyer. As a result, Mr Richards has not played a large role in the proceedings. However, he has attended diligently and attentively throughout all aspects of the matter and I have no reason to think anything other than that he is deeply interested in the outcome of this case, particularly as it pertains to [X].
When Mr Richards first became involved in the case and I read his acerbic descriptions of Ms Sawyer and his perceptions of how she had behaved towards him a decade before, I was concerned that his motives for bringing proceedings may have had more to do with him wanting to get back at Ms Sawyer than on what was likely to be best for [X]. His conduct in the case subsequently has done much to dispel that initial unfavourable impression of negativity and aggression.
I found Mr Richards to be a frank and sensitive person. In my view, he does not have an unrealistic expectation of the role he can play in [X]’s life, given his absence from it for the first decade of her life. However, I also accept that he has never lost his sense of regret that he was not previously involved with [X] and has so lost the opportunity to be a part of her early childhood.
Mr Richards is open to spending time with [X], along the lines suggested by Mr R. However, he has no desire to place either her or Mr Sawyer under any pressure. His evidence was that he was content to hold back and move at a pace with which both [X] and Mr Sawyer were happy. In his dealing with me, Mr Richards has shown himself to be a patient person. I think it is to his credit that he did not seek to cross-examine Ms Sawyer about her relationship with him, which in my view must now have only extremely limited relevance to these proceedings.
Mr Richards has a somewhat complicated family situation, apart from the issues pertaining to [X]. He is married and has four children aged from twelve to three, in addition to step-children aged twelve and seven. He and his wife are currently expecting another child.
Mr Richards and his partner have also fostered many other children. Accordingly, Mr Richards has a large blended family.
I accept Mr Richards’ assessment of himself as a family orientated person. Certainly, his situation indicates that he has extensive experience of being a parent. Given this state of affairs and his biological relationship with [X], I accept that he has something to offer [X] and it is likely to be in her best interests to know her progenitor, in some form or other. Certainly, the evidence of Mr R demonstrates that [X] has weathered the potentially serious emotional shock of meeting a father, whom she had not previously known. I accept that currently she is enthusiastic about him and wants to know him better.
Mr Richards’ arrival on the scene, through the agency of Ms C, in conjunction with the current acrimonious proceedings between the parties, is one reason why Ms Sawyer currently feels under siege, a state of affairs which would be trying for anyone. As previously indicated, Mr Richards has nothing positive to say about Ms Sawyer. In these circumstances, the only means of [X] having some form of relationship with Mr Richards would appear to be through the agency of Mr Sawyer.
Since Mr Richards and [X] have been introduced, [X] has had four visits with Mr Richards. One of these visits has included an overnight stay to attend a party for Mr Richards’ children, step-children and foster children, which was held at his home. Mr Richards describes this as a successful visit for [X] and a pleasant occasion for all concerned.
Ms Sawyer is critical of Mr Richards for not contacting [X] on her eleventh birthday, which occurred on [date omitted] last. Mr Richards explained this omission by him having being very busy at the time. He seemed genuinely embarrassed by it. As such, I do not interpret this failure as exhibiting disinterest about [X] on his part or as demonstrating a cavalier attitude towards her.
a) Mr R’s evidence in detail
Mr R’s impression of the family, garnered over the process of his four family reports, was that the children’s views, particularly [X]’s, had coalesced over time in favour of spending more and more time with their father, culminating in their preference to live predominantly with him. This was a major factor in Mr R recommending that the children should live with their father and spend weekend time with their mother.
Although close to her mother, Mr R viewed [X]’s relationship with her father as being qualitatively superior. This trend had been observable to Mr R throughout the course of his family report writing process. In my view, this is a significant issue. Certainly, throughout the family report process, [X] has demonstrated a degree of negativity about her mother and been enthusiastic about her father and his household.
In May/June 2010, [X] had been critical of her mother for being angry with her and the other children. [X] was not in favour of moving back to [M]. In interview, at her mother’s residence she said as follows:
“I still love my mum but I can’t get on with her, she’s fighting with everybody … I would go and live with dad tomorrow if I could … I would visit mum weekends, and school holidays … me and dad are more the same than my mum and me … I would go and live with dad by myself if I had to … I would rather live with dad then granny (maternal grandmother), mum is my last choice.”[8]
These views were reciprocated by [Y] and [Z].
[8] See family report dated 2 June 2010 at paragraph 61
The children were observed by Mr R to be a cohesive group at their father’s household and to have an “observable emotional attachment” with him. The children accepted their father’s authority. Mr Sawyer’s presentation in court was somewhat taciturn. It would seem to be likely that he is less emotionally demonstrative than the mother but I do not doubt his love and affection for the children.
In interview with Ms Sawyer, in June 2010, Mr R described her as suffering from “stress and anxiety” demonstrated by her frequently lapsing into tears and displaying resentment at Mr Sawyer’s actions, which had resulted in the frustration of her attempt to relocate to [M]. This description accords with my own impressions of Ms Sawyer. I am concerned that, at times, she finds it difficult to control her emotions, particularly her anger at Mr Sawyer and those aligned with him. I am concerned that she may be prone to display these emotions to the children.
The children were observed to test their mother’s authority but [Y] and [Z] demonstrated much affection towards her, with [X] being more peripheral. As such it would seem to me to be likely that the parties have different parenting styles, stemming from their different personalities. One parenting style is not necessarily better than another. In my assessment both parties are likely to have much to offer the children. Certainly there can be no doubt that both parties love and care about the children.
At the time of the first report, Mr R viewed Ms Sawyer as being isolated and angry. Given her circumstances, at the time, I can understand why this would be so and why Mr Sawyer and perhaps
Mr Richards would be the subjects of this anger. However, it seems to be the case that the children, particularly [X], have been exposed to the mother’s feelings of resentment and have reacted adversely to these displays.
In the context of [X] having been introduced to Mr Richards and the care of the children having moved to the six/eight nights per fortnight arrangement, Mr R revisited the family in November of 2010. Once again, he interviewed each of the children. [X] complained that she had received adverse treatment from her mother, as a result of reporting a desire to meet and engage with Mr Richards. In addition, [X] complained abut her mother’s swearing, drinking and gambling. [Y] and [Z] too reported that they enjoyed living with their father.
Mr R compiled the final family report in April of 2011. By this stage, Ms Sawyer had abandoned her desire to move immediately to [M] and was of the view, ostensibly at least, that a shared care regime was the best outcome for the children. Mr Sawyer’s views towards the mother had hardened because of what he perceived to be her continuing vindictive stance against him. He wanted the children to live predominantly with him.
Against this background, in interview with him, the children expressed some ambivalence about their residential preferences to Mr R. Initially, when interviewed at her mother’s home, [X] said she loved both her parents and it was hard to make a decision, but she also indicated that she did not like changing homes all the time. [Y] indicated that the question of where he wanted to live was a hard question. In interview his views fluctuated from wanting to keep things as they current stood to wanting to spend more time with his father. [Z], although described as being highly distractible, was in favour of living predominantly with his father.
When interviewed at their father’s house, two days later, both [X] and [Y] clearly indicated their preference to live predominantly with their father and visit their mother on alternate weekends and during school holidays. [X] explained the reason for this preference on the basis that she was familiar with the [T] area and the father’s home was close to her school and [sport omitted]. She also indicated an attachment to
Ms H.
Although Mr R did not recommend curtailing the children’s time with their mother, he was of the opinion, at trial, that the father’s household was a better proposition for the children because it was more familiar and was supported by the paternal grandparents. On the other hand, he was concerned that Ms Sawyer continued to be isolated and angry and lacking in social supports.
Mr R regarded Ms H as being a positive factor, both in the children’s lives and Mr Sawyer’s. He regarded [B] as being a young adult, who was necessarily creating her own social structures and networks. As such, she was not likely to be closely involved with the children as time unfolded but would be making her own life. Accordingly, Mr R was not greatly concerned at the prospect of [X], [Y] and [Z] living predominantly in a different household to their older half-sibling.
Mr R described Mr and Mrs S Senior as being “very reasonable and wanting to help” their son and grandchildren. I agree with this assessment. Mr R did not think that either they or Mr Sawyer were the major protagonists in the confrontation with the mother. Rather, he considered that Ms Sawyer had cut her ties with people who had been previously close to her and had isolated herself from them.
The father’s level of support, when contrasted with the mother’s “constricted” social network was another factor which led Mr R to favour the children living predominantly with their father. I accept
Mr R’s evidence and assessments.
b) The parties’ evidence in detail
The most striking aspect of Mr Sawyer’s evidence was his inability to describe any positive attribute pertaining to Ms Sawyer whatsoever. When pushed, he indicated that he supposed “the children loved their mother.” However, he qualified this by the statement that “children should love their parents, no matter how bad.”
Mr Sawyer presented as being extremely bitter as a result of the circumstances surrounding the end of the parties’ marriage. When asked to describe his level of communication, with Ms Sawyer, in respect of arrangements to do with the children, Mr Sawyer utilised a single word – “zero”.
It was his evidence that this unfortunate situation had come about because of the mother’s refusal to communicate cordially with him and his concern that she was liable to engineer a confrontation with him to suit her own ends, particularly to portray him in an adverse light, either in these proceedings or to the police. His view of the mother was of a disingenuous and manipulative person.
In her evidence, particularly in cross-examination, the mother struck me as being argumentative and angry. I did not always believe her account of what had happened in the past, particularly in terms of her interactions with either Mr Sawyer or his parents. As such, there seemed to be some substance to Mr Sawyer’s contention that
Ms Sawyer was intent on perpetuating the atmosphere of confrontation and hostility between the parties.
Regretfully, I found each party’s portrayal of the other and their respective descriptions of their relationship deeply depressing. The circumstances surrounding the mother’s removal of the children to [M] and the confrontational process engaged to secure their return to Adelaide continue to reverberate negatively for both the father and the mother. Both parties presented in court as being miserable.
The father is bitter that Ms Sawyer would want to remove him from playing an active fathering role in the children’s live. The mother is bitter at the circumstances which compelled her return to Adelaide and give up the life and mode of living of her preference. In the acerbic proceedings which have followed, both parties have been highly critical of the other.
Ms Sawyer conceded that she had not coped very well in 2010 and had indeed been very angry with the world. However, it was her evidence that she had been feeling a lot more positive about her situation, during 2011, and had now accepted that it was best for the children to remain living in Adelaide. Too a large extent, this evidence echoes what [X] told Mr R in interview in March of 2011, when she said “it’s got a lot better with mum ….”[9] However I consider it highly unlikely that she is currently significantly better disposed towards Mr Sawyer than she was for much of 2010.
[9] See family report dated 8 April 2011 at paragraph 36
Ms Sawyer also conceded, to her credit, that the children were aware that she was not coping well during the period following her return from [M]. I am concerned that Ms Sawyer is likely to exhibit some difficulty in being able to shield her anger about Mr Sawyer from the children. In particular for the reasons which follow, I am satisfied that it was Ms Sawyer’s behaviour at the children’s sporting activities, on the weekend of 30 April 2011, which precipitated the violent altercation between her, on the one hand and the father and Ms H on the other.
In particular, I reject the mother’s evidence that she has been the subject of continual harassment from the father and his parents.
Mr Sawyer is implacably hostile to Ms Sawyer but this is because he wants to be free of harassment from her. On balance, I am satisfied that it is Ms Sawyer who is driving the endemic and unacceptable hostility between the parties rather than Mr Sawyer, in the sense that Ms Sawyer is proactive and Mr Sawyer is reactive in respect of this conflict.
Much time was spent in the analysis of precisely what happened on 30 April 2011. I prefer the evidence of Mr Sawyer and Ms H over that of Ms Sawyer in respect of the incident. On this occasion, Mr Sawyer and Ms H attended at the children’s sportsground to pay [X]’s [sport] fees. Ms Sawyer was also at the sportsground, as were [Y] and [Z], as [X] was playing [sport omitted]. I do not find that this was a provocative gesture on Mr Sawyer’s part. He was there because the fees needed to be paid. He had no desire to engineer a confrontation with Ms Sawyer.
It is also the case that, by this stage, the domestic violence order granted in [omitted] in Ms Sawyer’s favour had expired. Mr Sawyer heard Ms Sawyer, on her mobile phone, complaining to police. I accept that the mother said to the father: “You’re fucked now. I am going to have you arrested.” Mr Sawyer deposes that he was embarrassed but kept walking towards his car with Ms H.
At his car, whilst Ms H was placing [L] in her baby capsule on the car seat, I accept that Ms Sawyer rushed towards her and pushed the open car door hard into Ms H’s back on two occasions. This incident was viewed by [Y] and [Z], who were nearby at the [area omitted]. Accordingly, it is my view that it is Ms Sawyer, of the two parties, who has the greater problem in keeping her emotions under control.
It is Ms Sawyer’s evidence that she believes Mr Sawyer has in some way influenced the children to comment unfavourably about her to
Mr R. I do not accept that this is the case. Mr R deposed that he did not believe that the children were parroting the views of any other person. It seems to me to more likely than not that each of the children, particularly [X], has reported accurately their impressions of their mother and this in turn has shaped the children’s preferences as to where they wish to live.
Ms Sawyer is also of the view that, if the children have expressed some preference for living in their father’s household, it is because there are no rules there and the children do not have to do any household chores, when living at their father’s. This does not accord with Mr R’s observations of the father. He viewed Mr Sawyer as being able to exercise more authority over the children than their mother.
Ms Sawyer has been particularly critical, throughout these proceedings, of Mr Sawyer’s level of understanding of [Z]’s haemophilia and his capacity to provide treatment for him. I accept that Mr Sawyer has undergone the necessary training to be able to administer [Z]’s medication in a residential setting. I accept that Mr Sawyer is both proactive and concerned about [Z]’s condition and treatment.
At the present time, each of the parties maintains separate records of the treatment which each administers to [Z]. Up until August of 2010, there was one record maintained, which was exchanged between the parties at each handover.
It is the father’s evidence that the mother withheld the treatment record from him, with the intent of wanting to make him look neglectful. In my view, the parties’ maintenance of separate medical records for [Z] is indicative of the flawed nature of their current parenting relationship.
Ms Sawyer does not believe that the parties’ current inability to communicate with one another poses any issues in respect of the continuation of the current shared care arrangement in respect of the parenting of the children. She deposed as follows:
“… I say that that father and I rarely see each other for our mutual dislike to be a problem. I say that the current court orders sufficiently set out how changeovers for the children are to occur so that we do not have to meet face to face.”[10]
[10] See mother’s affidavit filed 26 May 2011 at paragraph 40
It is generous of him to want to contribute to [X]’s education. However, in my view, he is not able to dictate what form this education should take. Rather, his offer to provide for the costs of [X]’s education, is one factor which the parties themselves will need to consider when the time comes for them to attempt to determine consensually the appropriate school for [X] to attend.
What should follow from the presumption – section 65DAA
Given the structure of section 65DAA, as I have determined that the presumption of equal shared parental responsibility is to be applied to the parties in respect of their care of [X], [Y] and [Z], I am required to consider whether firstly an equal time arrangement, and if this is ruled out, secondly whether a significant and substantial time arrangement should be applied to the children’s parenting.
It is Ms Sawyer’s position that the court should inaugurate an equal time arrangement for the children or maintain the current substantial and significant time arrangement. On the other hand, it is Mr Sawyer’s position that the parties’ current circumstances preclude such an arrangement, which would be neither in the children’s best interests nor reasonably practical to put into effect.
Both an equal time regime and a substantial and significant time regime are predicated on the basis that they must be reasonably practicable to put into operation, not merely beneficial for any child concerned. The test of what is practicable, in any given case, is to be assessed by the court objectively. In making this objective assessment, the court is required to consider four specific criteria and one generic criterion, as set out in section 65DAA(5). I turn to consider those matters now.
a) How far apart the parents live from each other
Mr Sawyer lives at [T] in the rural area to the north of Adelaide.
Ms Sawyer lives in the northern suburbs of Adelaide. The distance involved is about twenty kilometres traversed over quite rural roads. For a period of over a year they have managed the children regularly moving backwards and forwards between their two households. Distance alone is not a significant factor regarding the practicality of either an equal time arrangement or a substantial and significant time one.
b) The parties current and future capacity to implement an equal time – substantial and significant time regime
These proceedings have been rigorously contested. Initially Mr Sawyer was opposed to the parties having equal shared parental responsibility for [X], [Y] and [Z]. It was his position that the parties’ parenting relationship was too compromised for this to be a viable outcome. It was my impression, albeit one derived from the artificial environment of the courtroom that he actually finds it difficult to look at Ms Sawyer. Certainly he finds it close to impossible to ascribe any positive attribute to Ms Sawyer, a person he regards as dishonest and unreliable.
Ms Sawyer asserts that the parties now, in effect, parent the children in parallel. As such, they do not need to interact with one another. It is likely to be the case that any interactions between Ms Sawyer and
Mr Sawyer are, by mutual but unspoken agreement, to be avoided at all costs, but I am concerned that when they do come into contact with one another, as occurred at the sportsground earlier this year, there is the potential for there to be serious conflict and even violence between them.
It is impossible that the parties can avoid direct dealings with one another for the indefinite future, particularly if they have either an equal time or a significant and substantial time regime for the three children concerned. Given the logistical implications of either such arrangement, the parties will have to engage with one another to some degree, particularly as the children get older and their day to day lives become more complicated.
Inevitably the children will have more complicated schedules, involving school, sporting and social engagements as they get older. As a result, arrangements for their care may have to be changed at the last minute, as unforeseen events arise. The parties will have to deal with these exigencies without rancour and recrimination. I do not think they have the capacity to respond in this way at present.
The law relating to post separation arrangements for children was significantly changed by the shared parental responsibility amendments to the Family Law Act 1975. Prior to those amendments, equal time arrangements for children, following parental separation, were the exception rather than the norm.
Where they did exist, it was usually found that the parents concerned had a shared commitment to making the equal time arrangement work and held compatible values and views as to what was important in parenting. There is no such shared commitment in the current case.
Mr Sawyer is vehemently opposed to the children remaining in an equal time arrangement. He both mistrusts and dislikes Ms Sawyer. For her part, I am concerned that Ms Sawyer has taken to advocate the equal time regime because she fears, given what the children have said to Mr R, it is unlikely that the court will make orders which would see the children living predominantly with her.
[X], in particular, has expressed a preference to live more in one household than another. In this regard, she seems to be motivated by logistical considerations. I can readily understand why a child of [X]’s age would express a preference to have one predominate home base, where she has her main bedroom and where most of her possessions and clothes are stored.
It is difficult, in practical terms, for any child to have two homes of equal importance. It is difficult for there to be a complete duplication of clothes and possession in such circumstances. Things must travel backwards and forwards with the child concerned. The parties have no facility to deal constructively with the practical problems which will inevitable arise from the children having two homes.
These practical problems have the potential to be sources of still more conflict between the parties. In such circumstances, I am fearful that it will be difficult for the children to be kept “out of the middle” of any resulting dispute between the parties. Regrettably, it is my assessment that these disputes are not likely to be trivial or easily forgotten. Rather they have the potential to become violent.
c) The parties’ communication skills
In my assessment, the parties’ facility to communicate with one another is seriously compromised and likely to remain so for the indefinite future. The most compelling example of this concerns [Z]’s haemophilia. This is a potentially life threatening condition, yet the parties currently maintain separate and distinct records of the treatment which each provides to him. In addition, the communication book which was earlier inaugurated has currently fallen into abeyance.
The parties, like many separated parents, have been involved in litigation regarding arrangements for the care of their children for some time now. This has occurred against the background of a difficult and traumatic separation for them both. In addition, it is likely that their separation has emphasised, rather than diminished, the differences in their demeanour and parenting attributes. For obvious reasons, the current circumstances of the parties are likely to extenuate the potential for differences of opinion to arise between them about all manner of things but particularly in respect of their children.
Every case, involving the care of arrangements for children, which comes into court, must involve issues of this kind to some degree or other. It cannot be the legislative intent that shared parenting be ruled out in all of these cases. In addition, it is sometimes the case that the conclusion of litigation and the effluxion of time have an ameliorating effect on parental relationships.
In Astor & Astor[18] O’Reilly J said:
“… it is not as if, as soon as communication difficulties between the parties, or other difficulties between them are identified, the discretion ought not be exercised in favour of an equal time parenting order. Rather, the matter is one of balancing all relevant factors …”
[18] Astor & Astor [2007] FamCA 355 (delivered 24 April 2007)
In my view, I must be careful not to adopt an unduly utopian standard for the parties’ communication skills or expect them to adhere to a standard which is clearly unattainable given that they separated in difficult and acrimonious circumstances, as many couples do, particularly those that seek the court’s assistance to resolve their parenting disputes. Again the standard by which these communication skills is to be judged is by an objective standard.
The test for communication skills, as stipulated by section 65DAA(5)(c), is directed to how amenable separated parents communication skills are likely to be to the resolution of “difficulties” arising from an equal time arrangement.
For obvious reasons, these difficulties are not able to be defined in the applicable legislation. They are likely to become more multifarious, depending on the complexity of any regime for the care of children and the degree of controversy which has surrounding the inauguration of such a regime.
In my view, an equal time regime (or a significant and substantial arrangement), spread between two households separated by twenty odd kilometres involving children whose schooling, friends and extracurricular activities are centred more on one household than the other is necessarily likely to be highly complex. It would also be highly controversial, so far as Mr Sawyer is concerned. In these circumstances, it is my view that many difficulties are likely to arise between the parties, which will be compounded by their current antipathy for another.
These difficulties are likely to range from the trivial – a school reader or [sport equipment omitted] left behind – to the complex – a parent being unavoidably detained and unable to collect the children from either school or some other activity. My assessment of the parties is that they would have difficulty resolving the more complex parenting difficulties inevitably arising between them without some form of serious recrimination.
I think it unlikely that these difficulties will markedly diminish over time. For the indefinite future the parties’ relationship will be characterised by mistrust. It is a significant matter that each party struggles to say anything of a positive nature about the other. It is also significant that the mother is likely to perceive that the father’s actions have precipitated the current and possibly other criminal prosecutions against her. It is also significant that the father perceives the mother to have acted against his financial interests.
None of these issues is going to disappear in the short to medium term. There also remains the unfinished business of the parties’ former family home, which is subject to a significant charge in favour of the Legal Services Commission. Ms Sawyer has intimated that she wishes to liquidate whatever interest she has in the property, which is subject to a charge relating to costs incurred in earlier proceedings relating to care arrangements for [B]. This matter is also likely to engender significant conflict between the parties.
Accordingly I do not consider that the parties’ communication problems can be categorised as being in the normal range of those experienced by separating parents and as such can be anticipated to settle down over time. To the contrary, I consider the compromised level of the parties’ communication skills to be endemic and to lie in a high category of dysfunction.
I am concerned that Ms Sawyer has attempted to downplay these difficulties because she is aware that these problems are likely to stand in the way of the best possible outcome for her from these proceedings. Her behaviour at the sportsground on 30 April 2011 evocatively demonstrates the serious problems in the parties’ parenting relationship.
d) Impact upon the children
At the end of the day, it is [X], [Y] and [Z] who have most at stake in any equal time arrangement. They are the individuals who are most likely to be the most effected by it. It is their schooling which will be impacted and potentially their extra curricular activities disrupted. They, more so than their parents, will have to deal with all the problems arising from living in two homes separated not only by distance but by hostility.
In her most recent interaction with Mr R, [X] gently chided me to get on with making a decision as to where she should live, she having made it is clear her preference is to live more in one of her parent’s home. She indicated that a shared time arrangement was confusing.
At this stage and in future, the centre of the children’s educational, social and sporting lives is and will be [T]. [T] is a locale they know very well, as they have lived there for the vast majority of their respective lives. As such, it seems to me to be likely that they will feel a sense of dislocation, from much of the day to day reality of their lives, if an equal time arrangement is inaugurated, along the lines proposed by Ms Sawyer.
In addition, perhaps more importantly, they may be at the centre of any disputes arising between their parents, if the arrangement sought by the mother proves impracticable to implement because of the ill-will existing between her and Mr Sawyer. I am concerned that an equal time arrangement has the potential to intensify conflict between the parents which in turn is likely to have implications for each of the children’s ongoing sense of emotional equilibrium.
Conclusions
I have concluded that it is appropriate that the parties should have equal shared parental responsibility for their children [X], [Y] and [Z]. As a consequence, I am required to consider firstly an equal time arrangement for the ongoing parenting for the three children and then, if this is ruled out, consider a substantial and significant time arrangement.
Both potential regimes are subject to considerations of the children’s best interests and whether they can be reasonably put into practice. These considerations are of equal importance. In respect of considerations relating to practicality, I have to consider the reality of the familial circumstances surrounding the children concerned rather than what may theoretically be the optimal outcome for them.
Having considered the various section 60CC factors, I have reached the conclusion that an equal time arrangement would not be in the best interests of the children concerned. Nor do I think such a regime would be objectively feasible given the circumstances currently prevailing. Rather I consider that the service of the children’s best interests requires them to live more in one of their parents’ homes than the other. On balance I think it is Mr Sawyer who should be tasked with providing that residence.
The current proceedings arose because of the mother’s unilateral action in relocating the children from [T] to [M]. This action precipitated considerable ill will between the parties which is unlikely to dissipate for a long time. The mother did not consider how the children would maintain their relationship with their father if they were in [M] and he was in [T].
I am satisfied that at the time of the move, each of the children had a significant relationship with their father and the move was motivated more by considerations relating to Ms Sawyer’s preferences than the best interests of the children concerned. I am concerned that
Ms Sawyer is likely to prioritise her needs over those of the children.
It is my assessment that Mr Sawyer is the more insightful parent of the parties. He also has greater support, in the form of Ms H and his parents, in providing for the children. In my view Mr and Mrs S Senior are positive features in the children’s lives and provide considerable stability to them. It is my finding that the children are likely to be better provided for emotionally, in their father’s household, which is a more consistent one than their mother’s.
It is also clear that it is the children’s preference, particularly [X], to live predominantly with their father in the [T] property, which has been their family home for most of their lives. In the circumstances, this preference seems rationally based and not the subject of an external influence. Mr Sawyer’s household is convenient to the children’s school and sporting activities. [T] is the base on which the children’s lives are centred.
What will happen so far as the relationship between [X] and
Mr Richards is concerned is unclear to me. The relationship is in its nascent stages. My finding is that Mr Richards is well motivated and sensitive towards [X]’s emotional needs. The relationship has the potential to be extremely important, for [X]’s sense of identity, as she matures into adolescence and beyond.
Of the two primary parties concerned in this case, Mr Sawyer is the better placed to support this relationship. Regrettably Ms Sawyer is likely to remain ill disposed towards Mr Richards (and he towards her) for the foreseeable future. As such Mr Sawyer is better placed to support this important relationship for [X].
Unusually the children are only able to spend time with their maternal grandmother through the aegis of the father and his family because of the estrangement between Ms Sawyer and Ms C. Ms C is an important figure for the children, particularly so far as [X] is concerned. These are additional factors which militate in favour of the children living more with Mr Sawyer than Ms Sawyer.
I can understand why, in the event her household is ruled out as being the children’s principle place of abode, Ms Sawyer would fervently advocate an equal time regime. However, in my view, the day to day reality of the parties’ parenting relationship, particularly the endemic conflict and chronic communication difficulties between them renders such an outcome objectively unworkable and impracticable.
However, the children have a close and loving relationship with their mother, who has been intimately involved in all aspects of their lives up to this point. She has shown herself to be dedicated and competent parent, particularly in terms of the management of [Z]’s haemophilia. In these circumstances it would be both highly artificial and contrary to the children’s best interests if their relationship with their mother is unnecessarily confined or restricted.
The children need to spend significant periods of time with their mother for this important relationship to remain meaningful for them each. In my view, it is likely to be in the best interests of [X], [Y] and [Z] if they spend a mixture of weekend, school mornings/ afternoons/ evenings and holidays with their mother, as well as an equitable share of special occasions.
Primarily I have in mind the children spending time with their mother on alternate weekends during school terms from after school on Friday until the commencement of school the following Monday and overnight on the Wednesday during the other week of each school fortnight. The school holidays should be divided equally between the parties. In my view this will equate to substantial and significant time, when the children’s birthdays and arrangements for Christmas, Mother’s Day, Father’s Day and other special occasions are factored in.
A difficult aspect of this case concerns the appropriate arrangements for [X] to spend with Mr Richards, given it is only recently that the two have been introduced and [X] has only spent brief time with him and only once overnight at his home. I am conscious that the regime I have envisaged for [X] is already a complicated one and I am wary about adding to its complexity, particularly so far as school holidays are concerned. [X] needs to have her own life, which is not consumed with “contact” arrangements with the disparate members of her family, including Mr Richards, her biological father.
In his most recent report, Mr R recommended that [X] spend up to two days per month and “some share of the school holidays” with
Mr Richards. Clearly, if orders are made to this effect, it will impact upon the time [X] spends with either Mr Sawyer or Ms Sawyer.
Mr Sawyer is the party who is least likely to be resentful about such an imposition.
Mr Richards has indicated his acceptance of the fact that he must be patient in terms of building his relationship with [X]. In my view, this is a realistic attitude on his part. In my assessment, I must be careful not to be too prescriptive in formulating orders designed to facilitate the relationship between [X] and Mr Richards. The relationship is likely to develop gradually and incrementally. It is not likely to be helpful to force its growth artificially.
With these factors in mind, what I propose is making orders that would see [X] spending two weekends during each school term with
Mr Richards and for five days during each of the midyear and end of year school holidays. These periods should coincide with the times [X] is scheduled to be in Mr Sawyer’s care.
In July of 2010, the parties agreed on a series of orders concerning issues to do with the children’s schooling and sporting activities, as well as in respect of arrangements relating to the treatment of [Z]’s haemophilia. I propose to retain the majority of those orders.
The relationship between the parties remains highly strained. The resolution of these proceedings is not likely to assist in easing the tensions between Mr Sawyer and Ms Sawyer. For that reason, wherever possible, the children should be exchanged between the parties at the children’s school and failing that at the [T] Police Station.
Although the communication book proposed by those orders has not been particularly successful, I believe I should continue to mandate the use of such a book, passing regularly between the parties, as the mechanism by which the parties exchange information regarding the children’s health, education and sporting needs.
Both [X] and [Y] seem to be children who enjoy playing sport. [Sports omitted]. Such sporting activities and the clubs which support them are frequently the lifeblood of small rural communities such as [T]. No doubt the clubs involved also organise other activities during the year, which the players, their friends and relatives are welcome to attend.
Mr Sawyer and other members of his family also seem to enjoy attending at the children’s sporting fixtures. I can understand why this would be so. It is natural for parents and other relatives to wish to support the children to whom they are close by attending at their sporting activities and to celebrate their children’s victories and commiserate on their defeats. Such things are incidental to being a parent and foster the bond between parent and child. For these reasons both Mr Sawyer and Ms Sawyer are likely to want to attend at [X] and [Y]’s games, particularly important ones.
This raises a particularly vexed issue. In July of 2010, the parties agreed that they would not attend at either the children’s training sessions or weekend fixtures, when the children were in the care of the other. This is a highly artificial situation. The issue for the court being should such a regime continue, now that the children are to live predominantly with their father, to avoid the possibility of their being a further confrontation between the parties?
Regrettably, I have come to the conclusion that it should. I consider that, given the extreme antipathy between the parties, the probability of a further violent altercation occurring between them, in the presence of the children, remains unacceptably high. I do not consider that the parties are currently capable of standing at opposite sides of either a [area omitted] or a [area omitted] in unprovocative silence.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and twenty-eight (328) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 10 August 2011
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