SCHILLER & SCHILLER

[2019] FCCA 2141

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHILLER & SCHILLER [2019] FCCA 2141

Catchwords:
FAMILY LAW – Parenting dispute – mother seeking week about and father seeking 9/5 – family report not supporting week about – equal time when children were younger but not since 2017 – both parties positions having merit – orders made as recommended by family report – poor communication between parents to be addressed by Parenting Orders Program.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Goode v Goode [2006] FamCA 1346

Applicant: MS SCHILLER

Respondent: MR SCHILLER

File Number: DGC 956 of 2018

Judgment of: Judge Burchardt

Hearing dates: 22 & 23 July 2019

Date of Last Submission: 23 July 2019

Delivered at: Dandenong

Delivered on: 13 August 2019

REPRESENTATION

Counsel for the Applicant: Mr Stanley

Solicitors for the Applicant: Malkin Lawyers

Counsel for the Respondent: Ms Stavrakakis

Solicitors for the Respondent: Taylor Splatt & Partners

ORDERS

1. That the parents have equal shared parental responsibility for [X], born … 2009 and [Y] born … 2011 (together the ‘Children’);

2. That the Children live with the Father.

3. That the Children spend time and communicate with the Mother:

   (a)From after school Thursday or 3.30pm on a non-school day to before school Friday or 9am if a non-school day, commencing Thursday 15 August 2019 and each alternate week thereafter;

   (b)From after school Thursday or 3.30pm on a non-school day until before school Monday or 9am if a non-school day, commencing Thursday 22 August 2019 and each alternate week thereafter;

   (c)For one week during the school term holidays and failing agreement, the first week, commencing the conclusion of school on the last school day of the term until 12pm on the middle Saturday; and

   (d)For such further and other times as agreed by the parties in writing.

4. That the usual live with and spend time arrangements be suspended during holiday periods and on special occasions and that the Children spend special occasions with each parent and, if required, this time with the other parent be suspended as follows:

   (a)With the Mother commencing the long summer school holidays in 2019/20, for one-half of the long summer school holidays, at dates to be agreed, and in the absence of agreement, the first half, from the conclusion of school on the last Friday of term 4, with changeover at 12pm on the middle Saturday of the long summer school holidays and each alternate year;

   (b)With the Father commencing the long summer school holidays in 2019/20, for one-half of the long summer school holidays, at dates to be agreed, and in the absence of agreement, the second half, from 12pm on the middle Saturday of the long summer school holidays until before school the following year and each alternate year;

   (c)With the Father commencing the long summer school holidays in 2020/21, for one-half of the long summer school holidays, at dates to be agreed, and in the absence of agreement, the first half, from the conclusion of school on the last Friday of term 4, with changeover at 12pm on the middle Saturday of the long summer school holidays and each alternate year.

   (d)With the Mother commencing the long summer school holidays in 2020/21, for one-half of the long summer school holidays, at dates to be agreed, and in the absence of agreement, the second half, from 12pm on the middle Saturday of the long summer school holidays until before school the following year and each alternate year

   (e)With the Mother each alternate year from 4.00pm on 24 December to 4.00pm on 25 December commencing 2019;

   (f)With the Father each alternate year from 4.00pm on 25 December to 4.00pm on 26 December commencing 2019;

   (g)With the Father each alternate year from 4.00pm on 24 December to 4.00pm on 25 December commencing 2020;

   (h)With the Mother each alternate year from 4.00pm on 25 December to 4.00pm on 26 December commencing 2020;

   (i)With the Mother on the Children’s birthdays when the Children are with the Father from 10.00am until 2.00pm on a non-school day and from afterschool until 6pm on a school day;

   (j)With the Father on the Children’s birthdays when the Children are with the Mother from 10.00am until 2.00pm on a non-school day and from afterschool until 6pm on a school day;

   (k)With the Father each year from 4.00pm on Good Friday to 4.00pm on Easter Sunday in 2020 and each alternate year;

   (l)With the Mother each year from 4.00pm on Easter Sunday to Tuesday morning at school following Easter Sunday in 2020 and each alternate year;

   (m)With the Mother each year from 4.00pm on Good Friday to 4.00pm on Easter Sunday in 2021 and each alternate year;

   (n)With the Father each year from 4.00pm on Easter Sunday to Tuesday morning at school following Easter Sunday in 2021 and each alternate year;

   (o)With the Father on Father’s day from 4.00pm on the Saturday before Father’s day to before school on Monday; and

   (p)With the Mother on Mother’s day from 4.00pm on the Saturday before Mother’s day to before school on Monday.

5. All changeovers that do not occur at the Children’s schools take place at McDonald’s Restaurant in Suburb J, corner of Street A and Street K.

6. That the parties have telephone contact (including skype or video-calling) with the Children as follows:

   (a)Each second night that the Children are not in their care between 6.30pm and 7.00pm; and

   (b)At any further times requested by the Children.

7. That the Mother and Father by themselves, their servants and agents be and are hereby restrained by injunction from:

   (a)Consuming any illegal drugs;

   (b)Drinking alcohol to excess whilst the child is in their respective care, and for such purposes, having a Blood Alcohol Concentration of at or above 0.05 is to be considered ‘excessive’;

   (c)Exposing the child to any person intoxicated by alcohol; and,

   (d)From denigrating the other or their partner or family to, or within, the presence of the Children;

   (e)Discussing the proceedings with or in the hearing or presence of the Children or allowing any other person to do so;

   (f)Allowing the Children to come into contact with or read the contents of any material filed in these proceedings or related to these proceedings in any way, or allowing any other person to do so; and

   (g)Exposing the Children to any family violence and/or parental conflict.

8. That the parties shall communicate with each other by text message or email regarding parenting matters.

9. The Mother and Father enrol, attend and complete an approved Parenting Orders Program and provide a certificate of completion of the course to the other party as soon as reasonably practicable.

10. In the event that the Children sustain any illness or injury requiring treatment at a hospital or treatment by a medical practitioner whilst in the Father’s or Mother’s care (as the case may be), that parent will inform the other parent of that fact as soon as possible and in any event, within 2 hours.

11. That each parent provide authorization from any treating doctor or treating medical personnel to discuss with the other parent the child’s diagnosis, prognosis and treatment and both parents be entitled to be in attendance at the time of such treatment.

12. The parties are to ensure that the other is listed as an emergency contact person with the Children’s school(s).

13. That each parent be entitled to receive from school or extra curricula activities, at their own expense, all documents normally received by a parent including but not limited to memorandum, newsletters, school report and photo order forms.

14. That each parent be entitled to attend all school and extra curricula events normally attended by a parent including but not limited to concerts, sporting events, parent teacher interviews and working bees.

15. The parties keep the other advised at all times of their respective residential addresses and landline telephone numbers and mobile telephone numbers for necessary communication and advise the other of any changes within 48 hours.

THE COURT NOTES:

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

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 956 of 2018

MS SCHILLER

Applicant

And

MR SCHILLER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting dispute about the best interests of two children, [X], born … 2009 and [Y], born … 2011.  The intensity of the dispute reflects the considerable tension between the parents, but in truth it is a dispute within a narrow compass.  The applicant mother seeks that the children live with each parent in blocks of week-about and the respondent father seeks that they live with the mother in a nine‑five pattern.  His proposal is that they spend from Thursday to Monday in one week and Thursday to Friday in the other week with the mother.

2. In truth, there is little to choose between the parties' positions, both of which have some element of merit, but for the reasons that follow, I am going to make the orders sought by the father.

Agreed or Uncontroversial Matters

1. The mother was born on … 1983 and the father was born on … 1978.  The parties commenced cohabitation in 2001 and married on … 2007.  They separated in April 2015.  As earlier indicated, [X] was born on … 2009 and [Y] on … 2011. 

2. Shortly after separation, the mother commenced a new relationship with one Mr B.  This relationship went extremely badly and did not last for any length of time.  The mother became depressed as a result of her circumstances and tried to commit suicide in … 2015. 

3. Notwithstanding these difficulties, the parties managed to arrange for the children to spend time on what was essentially an equal time basis, albeit it would appear in blocks of five days, followed by two days, rather than in seven-day blocks.  The mother has deposed of being pressured into doing this, but it seems uncontroversial that this is what actually occurred.

4. The mother re-partnered with Mr C in 2016.  Mr C has three children by a prior relationship, L born … 2007; M born … 2010; and N born … 2014.  In addition to these children, Mr C and the mother have had a further child, O, who was born on … 2018.

5. In May 2017, the mother and father entered into a parenting plan, which formalised their prior informal arrangements, which involved equal time. 

6. Thereafter, that parenting plan operated without any notable concerns until October 2017.  The mother asserts that things then went wrong shortly after she informed the father of her pregnancy with O.  The father's position is that he was moved to seek an Intervention Order against the mother and Mr C, because of disturbing matters that came to his attention.  

7. Following the taking out of the Intervention Order, the mother's time was ceased by the father until, in due course, it has been reintroduced following Court orders.

8. It should be noted that the parties had been living originally in Melbourne, but moved to Queensland in mid-2010.  Both the parents appear to agree this was to get away from drug use in Melbourne.  There is a dispute as to the extent of the father's drug use, but that of the mother's seems uncontroversial.

9. Despite some equivocation, it appears that both the parents continued to use drugs while they were in Queensland.  They returned to Victoria only in 2014. 

10. The events that caused the father to apply for the Intervention Order essentially related to his concerns as to the mother's continuing drug use.  It will be necessary to return to the evidence about this in due course.  It should be noted, however, that both the mother and Mr C have provided copious clean drug screens of more recent times.

The Parties' Affidavits

1. I have, of course, read the parties' affidavit material and much of what they say is denoted in the agreed matters set out above.  I note that at paragraph 15 of her affidavit filed 1 May 2018 the mother deposed that she had last used drugs in February 2017 and she had admitted some three to four occasions of drug use in September to October 2016.  In that affidavit, as in all her affidavits, she was accusatory of the father's failure to allow the children to spend time with her.

2. An affidavit filed by the father on 1 May 2018 in which he denied the mother's assertions of his excessive alcohol use, appends as annexure B, a record of an argument between Mr C and the mother that was accidentally made available to him.  He also annexed as annexure C a series of messages with somebody called Ms D, which, on their face, dealt with drug dealing by Mr C with the connivance of the mother.  He also appended as annexure D a series of entries on Craigslist in which he asserted Mr C was trawling for casual sex.

3. Mr C's affidavit filed 3 May 2018 deposes to his three other children spending alternate weekends with him and at paragraph 16 he accused the father of misconstruing annexure B to the father's affidavit.  This gratuitous insult is completely misconceived. 

4. The parties' other affidavits do not require much comment.  I note that annexures J15 and J17 to the mother's trial affidavit show messages from the father to the mother warning her about alleged breach of an Intervention Order.  J17 is a series of messages passing between [Y] and the father.  It is concerning to observe the father responding to [Y]’s expressed desire to spend one more night with her mother by accusing the mother or the maternal grandmother of inculcating this point of view. 

5. In his trial affidavit filed 17 July 2019, the father deposes, and it is noteworthy that this is not disputed, at paragraph 28 that the mother, who was prohibited from smoking a cigarette in the father's house, responded by telling [Y] that her father was "a fucking arsehole." 

6. As already indicated, I have read and have regard to the parties' affidavits, but it is more appropriate to concentrate on what was said in Court. 

The Family Report of Ms E

1. As with the parties' affidavits, I have, of course, read this report in its entirety and carefully.  I note that in her interview with Ms E, the mother was very critical of the father (paragraph 21).  The mother also acknowledged use of ice with Mr C in 2017 (paragraph 23). 

2. At paragraph 29, Ms E observed, correctly, in my opinion:

   Both parties described a twelve year relationship characterised by arguments, disagreements and difficulty in the area of communication.  The parties describe current communication as limited in nature and confined to text messaging when required.

3. I note that the father expressed concern to Ms E that the mother was coaching [Y] to say she wanted to stay longer (paragraph 31). 

4. I note that the children told Ms E that in the past they were accustomed to living with each parent fifty-fifty and that they both liked it (paragraph 33);  that [X] described history of his parents fighting and his father sending rude messages to the mother and that he did not like Mr C (paragraph 34).  Both children spoke positively of both of their parents.  It is clear they both love their half-sibling, O.  I note that [Y] described her mother at paragraph 35 as:

   she sometimes gets angry and can't handle everything easy when all the kids are there.

5. The children were observed with both the parents and with Mr C and their interrelationship was entirely unremarkable and appropriate.  The mother expressed her criticism of the change that took place in October 2017 and her frustration with her exclusion from the children.  The father's lack of trust for both the mother and Mr C was also clearly expressed.  At paragraph 43, Ms E opined:

   Parental communication remains challenging at the present time.  Limited direct communication occurs with both parties being cautious in this area.  There was an openly expressed lack of trust in the other parent with counter allegations made.  Ms Schiller denies the necessity for the Intervention Order that is in place until October 2019.  She cited paternal responses as deliberately provocative and manipulative.  Mr Schiller expressed concerns that the mother openly expresses negative and critical attitudes towards him in the presence of the children.  Both parties described a high level of frustration in the area of parental decision making and communication this at times resulting in continuing instance of conflict where the children are either present or aware of.  [Y] and [X] were able to express their love for both parents and the desire to spend substantial time in their care.

6. The children made comment that their family circumstances were difficult at times, having some awareness of parental conflict. 

7. I note that Ms E noted that the children expressed preference to return to an equal-shared time arrangement as a means of ensuring fairness between their parents (paragraph 44).

8. Ms E went on to recommend the nine-five arrangement that the father seeks.  She also recommended a parenting orders program, which the parties were not averse to. 

9. I just briefly mention the correspondence from Department of Health and Human Services (‘the DHHS’), which notes that there were 15 reports about the children between 2015 and 2018.  The very high number of such reports suggest that reports were made excessively.

The Evidence Given and Submissions Made at Court - Mother

1. What follows is taken from my notes.

2. The mother was called and adopted her affidavits as true and correct.  Under cross-examination, she confirmed the ages of the children and that she lives with Mr C, to whom she is not married.  His children are L, aged 11; M, eight; and N, five.  Those children spend alternate weekends with them and other time by agreement.  When cross-examined about her attempted suicide in 2015, the mother readily conceded that this had occurred.  She conceded her relationship with Mr B and her involvement with drugs.  She was taking ice. 

3. She conceded that she attended Narcotics Anonymous in March 2016.  She was cross-examined about an incident in winter 2017, when the father saw her walking barefoot with the children.  She denied that the children were crying on this occasion.  She went for a walk.  She had no shoes on.  She walked out to clear her head.  The father lived one street away and saw them.  She had had an argument with Mr C.

4. The mother conceded that Mr C has used drugs in the past.  She does not continue to use drugs.  She conceded that she informed the DHHS that she was using ice in 2017.  The father unilaterally withheld the children.  She was aware why he did so.  There was no argument between herself and Mr C on the phone.  Mr C was yelling and screaming at her.  She conceded it was a very troubling recording, but said it was one time only.  Drug use is not continuing.  The father took an Intervention Order out as a result. 

5. When it was put to her that in the circumstances, this was the right thing to do, the mother was unwilling to make this concession. 

6. The mother was cross-examined about annexure C to the father's affidavit filed 1 May 2018, being the exchange of messages with Ms D.  The mother conceded that the reference to "shard" on page 21 of 42 was a reference to ice.  She confirmed that "Mr C" was a reference to Mr C in the text conversation.  She conceded that the drugs photographed at page 27 of 42 were recreational drugs.  She conceded the father was responsible when he withheld the children.  Thereafter, he invited her to his house.

1. Time had stopped in November 2016 after a fight.  She rolled a cigarette at his house.  She conceded that when the father told her not to, she told [Y], "I'm leaving now, because your father is an arsehole."  She was not sure what [Y] would have thought. 

2. The mother does not have any counselling or support services now.  She had had them in the past in 2015.  She has not undertaken any counselling about relapse prevention.  She used drugs in Queensland and so did the father.  She conceded that she was picked up in 2015 in the car with the children and amphetamines.  She conceded that she had used ice three to four times with Mr C in 2016.  Mr C had been a drug user and so was Mr B.  When it put to her there was a pattern of relapse, the mother said it seemed like it. 

3. She said she did not need rehabilitation.  All her tests were clean.  She is not going to take drugs. 

4. The mother agreed the children had lived with the father since 2017.  They were at Suburb F Primary.  [Y] does sports and [X] plays sports.  If the children were in her care, she would take them to these activities, unless she meets them there.  The children are going well at school.  She does not pay any child support.  She is no longer critical about the father in relation to the provision of school reports.  She does believe he plays the victim and the Court system is unfair. 

5. She was asked if she had nothing nice to say about the father.  The mother said she thought he was a good dad.  He was good with the kids.  She does not need to be friends with him. 

6. O now has only one sleep during the day.  It emerged that there are up to six children and two adults who are together when Mr C's children are present.  The mother had no issues about the father's home or his care of the children. 

7. In re-examination, the mother said she knew the record of the quarrel with Mr C had been sent to the father straightaway, because the father texted her to ask if she was okay.  She replied, and then the Intervention Order followed.  Then her time stopped and she only saw the children at the father's home between October and December 2017.  He would ask her to come and see the kids, but it got too hard for the children, because she had to leave. 

8. When asked about the drugs in the car in 2015, the mother said she was pulled over by the police.  A drug test was undertaken.  She had taken drugs four days later, but it was still in her system.  The children were in the car with her.  She had not taken drugs since 2017. 

The Evidence of Mr C

1. Mr C adopted his affidavit as true and correct. 

2. Under cross-examination, Mr C confirmed it was a busy household with all the children.  They have a good relationship with [X] and [Y].  They come each alternate weekend and each alternate Thursday and half school holidays.  He has known the mother for over three years.  They met just after he separated from his former wife.  He was letting loose and this included using ice at the time.  He had not encouraged the mother to use drugs, but she did so herself.  She had not told him about her prior drug use.  She had been pulled over in the car, having picked him up. 

3. He has listened to the transcript (annexure B).  He was yelling and swearing.  He was upset about her lying and taking drugs.  A friend had told him that the mother was taking drugs and he was worried about his uncle and son.  He had never had an argument like that with the mother before. 

4. When cross-examined about the exchanges with Ms D, the father confirmed that the10 pack was ecstasy.  He was just helping a friend out.  He took ice when he was younger.  He has had no counselling about drugs abstinence.  He has never had a drug problem and does not need help.  He has a good relationship with [X] and [Y].  The children say there are six.  He has not undertaken an anger management course.  In re-examination, Mr C confirmed that emails to Craigslist were sent from his email, but were not by him.  They were sent by a friend from Adelaide who used his email.  The exchange with Ms D was in late 2016 or early 2017.

The Evidence of Ms G

1. Ms G adopted her affidavit as true and correct.  I do not propose to traverse the evidence of Ms G, which, in my view, was unremarkable and added nothing to the overall picture of the case. 

The Opening by Counsel for the Father

1. Counsel pointed to the time sought consistent with the family report.  There was a loving relationship with both parents.  The problem was with the mother's history of crisis, followed by stability and then further crisis.  The father is pleased that the mother has been clear of drugs.  Stability was the key.  The orders he sought would ensure that the children have a primary residence.  Counsel referred to the chaos of eight people living in a four bedroom house.

2. The father was called and adopted his affidavits as true and correct. 

3. Under cross-examination, the father confirmed he had no concerns about the mother's parenting capacity.  He was proposing nine-five.  The mother was not on drugs after 2017.  There should be a primary residence.  He had not told the family report writer this.  He agreed that O was important to the children and they see him a lot.  The children tell him it is chaos at the other household.  He does not react, as it is not his business.  He wants equal shared parental responsibility.  He was, however, not confident that this could work.  It would be very difficult, but he would like it.

4. It was important that the children have a meaningful relationship with both parents.  They need a relationship with their mother and father and she is a good mother.  She has made bad decisions.  These were drugs around the children, sleeping in factories and being negative about him in front of the children.  The mother has a drug history back to 2010.  He himself had used drugs.  He did not tell the family reporter that he had used drugs.  They should not use drugs while the children are in their care. 

5. He accepts that he should not use alcohol to excess when the children are with him, and he conceded that the mother's drug tests were clean and this was a great thing. 

6. Counsel put it to him that the children did not see the mother from December 2017 until May 2018.  He had asked for a hair follicle test and she had refused in December 2017.  The children were upset not seeing their mother, and he had told them it would all get sorted out soon.  He was not saying the mother was a drug addict.  He had never asked the mother to have counselling.  The stability of the children was important.  He then gave details of their extracurricular activities, which are not insignificant.

7. He said the mother did not turn up.  He had asked her to turn up and then she did not.  He had asked her to take them to swimming, but had had no response.  He did not know if he would move to Suburb J.  It depended on the result of the case.  There had been shared care since September 2015 following separation in April 2015.  He agreed fifty‑fifty, because he had no proof.  After annexure B, he sent a message.  He had never spoken to the children about the mother taking drugs. 

8. DHHS have never spoken to him.  There are iPads for both children, which are at his home.  The mother tries to alienate the children from him.  When cross-examined about the annexures to the mother's affidavit, S17, he said that he was not controlling the mother.  He has an Intervention Order against the mother and she is controlling him.  The children miss the mother.  He said he played no role in the conflict between himself and the mother (this being the obverse of a similar remark made by the mother, which I have not previously recorded).  The mother is coaching [Y] to say she wants more time and saying negative things. 

9. The father works full-time and earns $85,000 per year.  His work hours are flexible and he works from home most days.  He takes the children to school, which is 15 minutes by car, and there is some after-school care.  Interstate travel is very rare.  He looks after Victoria and Tasmania.  He has had two days travel in 12 months.  He has not made any application for child support. 

The Evidence of Ms E

1. Ms E adopted her report, which was tendered as exhibit T1. 

2. Under cross-examination by counsel for the mother, Ms E confirmed that the mother was willing to consider primary care when she was interviewed.  In the past, the children were accustomed to substantial care with each parent until October 2017.  There was a pattern of five nights, followed by two.  The father's concerns were annexure B and the Intervention Order followed.  The children love both parents.  They talked about past shared care.  There was a parenting plan in May 2017.

3. The children say it was a fair arrangement.  The relationship with each parent was important and significant to each child.  The children were in primary paternal care, because of the mother's vulnerabilities in 2017, which were drugs and her relationship with her partner.  Mr C was part of the observations with the children and things were unremarkable with both parents.  The father had not told her he took drugs during the relationship, but she knew it from the mother's affidavit.  The major concern of the mother was the father's alcohol abuse.

4. Although mental health was raised in the affidavits, this was not raised at the interview.  She did not recommend drug counselling. 

5. Under cross-examination by counsel for the father, Ms E said she did not have the DHHS report, but the information was in the father's affidavit.  She was aware of the mother's ice use.  Both children were aware of parental conflict, which was harmful to them.  The mother had a high level of frustration since the start of 2017.  The children's school has a copy of the Intervention Order.  The mother is aware of this and this is not easy for her.  Both children love O.  There are very limited communications between the parents and they are mutually critical responses, which were still happening recently.  For shared care to work, both parents have to be on the same page.

Final Submissions by Counsel for the Father

1. The father pressed the orders sought in his case outline.  He sought to include Father's Day also.  Changeovers should be at Suburb H McDonalds's, if not the school.  The orders proposed would represent an increase in time and the mother could be more involved with the children's school.  Stability was the theme.  They had been with the father since 2017 and attended school appropriately.  The evidence showed the mother was found walking the street in Suburb H with the children, with no shoes on, in winter 2017.  She said she was clearing her head after an argument with Mr C. 

2. There was an annexure B also.  This was disturbing.  Also there was the mother's drug use.  She was picked up in February 2017 by the police with ice in her system with the children in her car.  She had taken ice in 2016.  She had told DHHS she was taking regular ice use in March 2017.  The mother had been suicidal following the relationship with Mr B. 

3. Further, there was what was described as the practical reality.  With three children and O, with O not sleeping throughout the day, it was at least a very busy household.  The father's proposal met the children's needs.  A meaningful relationship is qualitative, not quantitative.  There is conflict in absence of trust between the parents.  The mother had lit a cigarette in the father's lounge room and then said, "I'm leaving, because your father is an arsehole," to [Y].  The mother is highly critical of the father.

4. Counsel adopted Ms E's report.

Final Submissions by Counsel for the Mother

1. The mother seeks week-about, not that the children live primarily with her.  Since 2015, the children were in shared care and there was a parenting plan in 2017.  The mother was unwell in 2015 and took drugs in 2016 and 2017.  Counsel referred to annexure B, but this has not happened since.  The children have not said there was violence or raised voices in the mother's house either to the DHHS or to the family reporter.  All of the issues, including when the mother was barefoot took place when there was a shared care arrangement.

2. Equal time has been ordered, even when communication between the parents is poor.  This has involved changeover from school to school.  The Parenting Orders Program was a given.  [X] was six and [Y] was four when the original shared-time arrangements were put in place.  The children are now older and can cope with week-about.  The mother told the father she was pregnant in 2017 and then the father raised concerns.  Ms E's assessment was inaccurate.  The parents were prepared to communicate.  Both want equal shared parental responsibility. 

3. The Court should consider equal time.  [Y] wants more time with the mother and O is important to both children.

Findings as to the Evidence

1. I would repeat the observation I made during the currency of the hearing in the presence of the parties.  I formed the impression that both parents and, indeed, Mr C, were thoroughly decent people, albeit with their all too human failings and fallibilities.  All of the lay witnesses gave their evidence candidly and, in my view, entirely honestly. 

2. Ms E was a professional witness giving evidence within her area of expertise.  She was not moved in cross-examination and I accept her evidence. 

3. As earlier indicated at the commencement of this judgment, much of the matters before the Court are really not the subject of disagreement.  The parties, as I find, were involved in taking drugs when they lived in Victoria and moved to Queensland to get away from it.  They only succeeded to a degree, because both of them took drugs in Queensland.  They then moved back to Melbourne in 2014 and separated in March 2015.  The mother, who it would seem does not tend to spend long on her own, re-partnered very quickly and disastrously with Mr B and the outcome of the rapid failure of that relationship was that she became unwell and tried to take her own life in late 2015.

4. Notwithstanding this, the parties had moved to an equal shared time arrangement, which continued and, indeed, was formalised by a parenting plan in May 2017.  True it is that the mother was using drugs in 2016 and in 2017.  Annexure C from Ms D shows that Mr C was dealing in drugs in late 2016 or early 2017.  He says he was only helping a friend out, but the texts do not say that and I think they mean what they say.  The mother was picked up with the children in the car and ice in her system. 

5. She was later observed by the father wandering the streets with the children with no shoes on in the middle of winter.  She has plainly had her various difficulties. 

6. Notwithstanding all of these matters, however, the shared care arrangement continued to function, in effect, without any real difficulty until the father received the very disturbing matters on [X]’s iPad, being annexures B, C and D to his affidavit.  The attempts by the mother and Mr C to minimise or downplay annexure B are, in my view, misconceived.  It was obviously a horrendous argument with Mr C behaving quite disgracefully.  It would, of course, have worried the father and reasonably so.

7. The texts to and from Ms D would likewise have been a very significant concern to the father.  They speak for themselves.  Although I accept that annexure D, being the puerile exchanges on Craigslist, were not sent by Mr C, it is equally easy to see why they would have deeply disturbed the father.  Mr C's feckless failure to control the use of his phone, and even more feckless, putting it on [X]’s iPad, speaks for itself. 

8. As I find, while the father may have been put out to an extent by the relationship with Mr C, he did nothing negative about it from 2016 when it started through till October 2017.  The mother thinks that this is because she told him she was pregnant, but it is quite clear to me that it was the receipt of these lurid materials in October 2017 that led him to act as he did. 

9. Thereafter he ceased time, although it is noteworthy that he allowed the mother to see the children at his own home.  I accept that this must have become extremely emotionally draining for the mother and her departures must have been sad indeed for all concerned.  There is no room for proper criticism of her for ceasing this, of course.  She came to Court rapidly enough thereafter and has, at all times, sought to reinstate her time. 

10. The father does, to an extent, seek to control the mother, although it should be noted that each of these parents sees themselves as the victim in the dynamic.  His messages to his daughter, who is plainly a very strong-willed young girl, are concerning and he would do well, as indeed would the mother, to cease his demonization of his former partner.

11. Against these findings, I turn to the statutory pathway.  The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:

    “Summary

    [65]    In summary, the amendments to Pt VII have the following effect:

    1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

    2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

    3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

    4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

    5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

    6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
    (s 65DAA(5)).

    7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

    (a)     the time the child spends with the parent includes both:

    (i) days that fall on weekends and holidays; and

    (ii)     days that do not fall on weekends and holidays; and

    (b)     the time the child spends with the parent allows the parent to be involved in:

    (i) the child’s daily routine; and

    (ii)     occasions and events that are of particular significance to the child; and

    (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

    8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

    9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

    10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

    11.     The child’s best interests remain the overriding consideration.”

Parental Responsibility

1. For all their mutual criticisms, both these parents seek an order for equal shared parental responsibility and it is plain that that is what is in the children's best interests.  Both these parents love their children and the children love them.  It is entirely appropriate that there should be equal shared parental responsibility.  Although there is one dreadful instance of violence perpetrated by the father on the mother during the relationship, it is now very substantially historical and, in my view, there is no need to protect the children from abuse or family violence, because they will not be subjected to it. 

The Spend Time Regime (The Primary Considerations)

1. Everyone agrees that it is in the children's best interests to have a meaningful relationship with each of their parents.  Both sides’ proposals will promote this in any event.  There is no suggestion of any family violence committed against the children, although the mother’s abuse of the father in the presence of [Y] is, of course, concerning. 

The Additional Considerations

Section 60CC(3)(a)

1. The children have expressed a view that they might wish to return to an equal time regime, as it would be fair as between their parents.  I note that the children are, however, relatively young, and I further note Ms E’s evidence that this expression of view was essentially consistent with the children’s age and capacities to understand as a result.  The children’s views must be approached with some measure of caution accordingly.

Section 60CC(3)(b)

1. The children have a warm and loving relationship with each of their parents and appear to get along well with Mr C as well.  They also have a good relationship with Mr C’s children, and it clear that they adore their little half-sibling, O. 

Section 60CC(3)(c)

1. Both of these parents have sought to participate in making decisions about major long-term issues in relation to the children and to spend time and communicate with them.  I accept Ms E’s evidence that the mother’s position in relation to the children’s school has been rendered awkward for her as a result of the Intervention Order which is due to expire relatively soon.  To the extent that time came to an end in December 2017, I will repeat that this is not a matter of criticism in respect of the mother.  Her response was a very understandable one.

Section 60CC(3)(ca)

1. Both of these parents have taken seriously their obligations to maintain the children.  The father has been the predominant caring parent since October 2017, and whatever the historical nature of the care of the children was when the parties were together, it is plain that both parents have done their best to maintain the children since.  While the mother does not pay child support, the father has not asked for it, and, furthermore, the amount that the mother might be assessed to pay would be, it seems to me, somewhat questionable.

Section 60CC(3)(d)

1. The increase of time for the children from their current regime to the nine – five regime proposed by the father is by definition one that all parties support.  The children certainly want to spend more time with their mother, and they clearly should.  How the children would fare in an equal time regime as things now stand in the mother’s household is not known.  The children certainly love O and would probably benefit from more time with him, but given that, in the circumstances, this would be weekday rather than weekend time, following school with all the exhaustion that that involves, the extent of this benefit is hard to calibrate.  Furthermore, [Y]’s evidence that the mother occasionally finds the household demanding may be something that might be exacerbated if an equal time regime was imposed.  I should emphasise, however, that any occasional exacerbation the mother finds having to cope with six children, one of whom is still a very young baby, is entirely understandable.

2. One effect of an equal time regime would be to further exacerbate the father’s dark suspicions that the mother is trying to alienate the children, and particularly [Y], from him.  This is part of a general suspicion and mistrust that the parties bring to bear upon one another.

Section 60CC(3)(e)

1. There is no particular practical difficulty or expense, as I understand the matter, in either party’s proposal.  Plainly, the arrangements for the delivery of the children to school would change, and this would impose further burdens upon the mother and Mr C.  No suggestion was made in cross-examination or submissions that this particular criterion gives rise to any difficulty.

Section 60CC(3)(f)

1. Both these parents and Mr C seem well able to provide for the needs of the children.  The father’s overblown resistance to [Y]’s attempt to spend an extra night with her mother is a matter of some concern, and the mother’s ongoing and, in my view, misconceived hostility to the father is, likewise, a matter of concern.  Their mutual mistrust compromises, to an extent, their capacity to care for the children.

Section 60CC(3)(g)

1. The father’s lifestyle and background seems unexceptionable.  To an extent the materials do suggest a slightly controlling element in his personality, but to an extent I think both these parents’ limitations arise from their perceptions of themselves as the entire victim of the conduct of the other.  The mother’s lifestyle has, at times, been chaotic.  She has made some very poor decisions in relation to choice of partner in Mr B.  Her mental health has been precarious at times.  Her continuing use of drugs until relatively recently, together with Mr C, is, of course, a matter of concern. 

2. Nonetheless, I should make it clear that I do not accept that the risk of a further crisis on the mother’s part is made out.  Indeed, it is apparent in the father’s own proposal that he has sufficient confidence for the children to spend five nights out of 14 with their mother.  The mother has managed to stay off drugs for a considerable period of time, as has Mr C.  She appears to be in what is generally a happy and sustained relationship with Mr C, who has clearly got a fierce temper.  But, nonetheless, she appears to be well settled with him.

Section 60CC(3)(h)

1. This is not relevant.

Section 60CC(3)(i)

1. As earlier indicated, both these parents love their children dearly.  Their attitude to the children is, however, tempered by their mutual distrust.  If the parents really wished to do what the children expressly want and need, they will have to get over this mistrust.  One would hope they love their children enough to take a step back in the face of these reasons for judgment and accept that they are both responsible for the very unfortunate conflict that exists at the moment.  The children note and do not like it.  It is time the parents advanced their understanding to equal that of their much younger children.

Section 60CC(3)(j)

1. Although there has been family violence in the past, neither party has laid any stress on it in this proceeding.

Section 60CC(3)(k)

1. The Intervention Order is due to expire later this year.  It has plainly been used very much as a sword as well as a shield by the father.  The application for the Intervention Order was a reasoned and reasonable response by the father to the information that came to him, but, in truth, the risk of any kind of violence against the father seems to me to be minimal to non-existent.

Section 60CC(3)(l)

1. It is plainly preferable to make final orders now.

Section 60CC(3)(m)

1. There are no other additional matters.

Conclusion

1. This is a finely balanced matter.  On the one hand the mother’s desire for equal time would return the children to what they have known for a considerable period of time after separation.  They would get to spend more time with their half-brother O, whom they love.  It would reflect the children’s expressed views. 

2. On the other hand, the children had lived predominantly with their father since October 2017.  By the time these reasons for judgment are published, that will be almost two years out of the children’s short, young lives.  They are in a settled routine with their father.  Ms E has not supported an equal shared time regime.

3. Having rejected the father’s claims that the mother is likely to revert to what is described as “crisis mode”, I should make it clear that I do not give overly much weight to the criticism that the mother’s household must be chaotic.  With six children, it may well indeed be somewhat chaotic at times, but that is a corollary of a large family.  It is clear that the children love their mother and like Mr C.  There is nothing to suggest that their relationship with Mr C’s children are fractious.  Whether things would remain so settled in the event of an equal shared time arrangement rather than the shorter periods of time that the children have spent in that household is open to question.  I accept Ms E’s evidence that the children’s expression of a desire for a fifty-fifty time regime reflects underlying notions of fairness which reflect their age rather than a fully considered opinion. 

4. On balance, and the matter in my view is finely balanced, I think that the recommendations of Ms E should be adopted.  The children did indeed spend equal time with their parents when they were younger, but have not done so for quite some time.  The arrangements proposed are not a million miles from what the mother wants in any event.  Much of this case is driven by the parents’ mutual distrust.  It is to be hoped that, with the assistance of the Parenting Orders Program that all parties agree is appropriate, they can take the necessary step back and to put the children’s interests first. 

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  13 August 2019