SCVG and KLD
[2010] FMCAfam 641
•15 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SCVG & KLD | [2010] FMCAfam 641 |
| FAMILY LAW – Parenting – long history of litigation between parents – whether children should live with father in Sydney or remain with mother in a country [property] near Canberra – evidentiary issues: s 136 Evidence Act Division 12A, Part 7 Family Law Act; issue estoppel – weight to be given to evidence of expert – issues about evidence of both parents – orders in best interests of children. |
| Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61B, 61DA, 65DAA, 69ZT Evidence Act 1995, s.136 |
| Blair v Curran (1939) 62 CLR 464 Pownall & Others v Conlan Management Pty Ltd & Another (1995) 12 WAR 370 |
| Applicant: | SCVG |
| Respondent: | KLD |
| File Number: | SYC 4380 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 15, 16, 17, 18 March, 18, 19 May 2010 |
| Date of Last Submission: | 19 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Richardson SC with Mr Richards |
| Solicitors for the Applicant: | Barkus Doolan Kelly Lawyers |
| Counsel for the Respondent: | Ms Rees SC |
| Solicitors for the Respondent: | McPhillamy's Lawyers |
IT IS NOTED that publication of this judgment under the pseudonym SCVG & KLD is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth). This judgment was previously published under the pseudonym Vanderhum & Doriemus.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4380 of 2008
| SCVG |
Applicant
And
| KLD |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two girls, [X], who is eight years old, and her sister [Y] who is six years old. For most of the children’s lives the parents have been in litigation, or in dispute, about where the children live and how much time they should spend with the other parent. This is what this case is about.
Background
The applicant father in these proceedings is 59 years old. He is a [occupation omitted] in Sydney. The respondent mother is 48 years old. She is involved in the administration and management of a family business in a small country town which is about 265 kilometres away from where the father lives. The mother lives with the children on a [omitted] property from which the family business is conducted. The children attend a school in that town.
The parents married [in] 2001. [X] was born in May 2002 and [Y] born in August 2004.
The marriage ended in separation on 17 January 2005. At that time [X] was two years old and [Y] four months old. The parents were at the time of separation living in Sydney, in the father’s home. The mother left the home with the two children and relocated to the [property] on which they now live, which is part of the mother’s family property. They have lived there continuously since the date of separation.
The father did not give permission for the relocation so he commenced proceedings for the return of the children. On 6 May 2005 Judicial Registrar Loughman declined to make that order. The father applied to review the Judicial Registrar’s decision. The matter first came before Moore J on 8 June 2005, and the hearing before her Honour was concluded on 9 February 2006. Moore J declined to make the orders sought by the father. She ordered that the children live with their mother and that their mother was permitted to remain living in the country town where she was living, or at a place of her choosing in that general vicinity. For present purposes, her Honour ordered that the children have contact with their father in weeks 1 and 3 of a four weekly cycle in Sydney from 6 pm Friday until 3 pm Sunday, and in week 2 in the geographical area where the children live from 10 am Saturday until 3 pm Sunday.
In addition, there were orders for contact for half of the school holidays except for the Christmas school holidays when it would be for one week. Orders were made for the mother to deliver and collect the children to and from the father’s residence in Sydney in weeks 1 and 3, and for the father to undertake the travel in week 2.
The orders made by Moore J were dated 13 April 2006. The father appealed these orders. On 20 February 2007 the appeal was heard in the Full Court. The appeal was dismissed on 24 May 2007. The father then sought special leave to appeal to the High Court of Australia, and on 14 December 2007 that special leave was refused.
In January 2008, [Y] was hospitalised in Canberra after a splinter in her foot became infected. The circumstances of this hospitalisation, and subsequent events, became the focus of much evidence in the proceedings before me. [Y] suffers from the condition known as chronic benign neutropenia. [Y] was diagnosed with this in July 2005. The effect of this is that [Y] produces a lower number of white blood cells and thus her body succumbs to bacterial infection, and finds it difficult to properly fight infection. Thus, something as innocuous as a splinter is for most children, becomes a potentially life-threatening condition for [Y]. [Y]’s hospitalisation was rendered far more complex because of the condition that she suffered. Regrettably, her hospitalisation was also rendered more complex by possible issues of medical mismanagement of her condition, and clear issues of dysfunctional communication and decision making involving her parents. Each parent is highly critical of the other for what they perceive to be the other’s role in relation to [Y]’s hospitalisation. As it turns out, however, [Y] made a complete recovery. It is, however, no exaggeration to say that she nearly died whilst being treated in hospital.
On 29 July 2008 the father filed a fresh application seeking a variation of the parenting orders, but this time before me. The mother applied for his application to be summarily dismissed. This application was what is commonly known as a Rice v Asplund application. I heard this application but declined to summarily dismiss the father’s application to vary the orders. I delivered written reasons and they are reported as SCVG & KLD [2008] FMCAfam 1147.
There is in this case, therefore, a lengthy history of litigation. It is clear beyond any doubt that the parents do not trust each other and that any communication between them is strained and dysfunctional. Notwithstanding this, the orders for contact made by Moore J have been complied with for the most part, with only minor complaints that do not seem to extend to whether the children actually spend time with their father.
Competing proposals
The orders sought by each of the parents are reproduced in full in the schedule to these reasons for judgment. By way of summary, however, the father seeks to set aside and discharge the orders of 17 May 2006. In effect, he proposes that the children live with him in Sydney. The father advances two alternative scenarios within his proposal. On the first scenario the mother would live in a region defined to be within 25 kilometres of the school that the father proposes the children attend in Sydney. On this scenario he proposes that the children live with the mother from after school on Friday to the commencement of school the following Thursday, each alternate week, and for half of the school holidays plus special days. This is, in effect, a shared care arrangement which would, as a practical matter, require the mother to live within a 25 kilometre radius of the school where the children attend.
The alternative scenario within the father’s proposal involves the mother having the same amount of time with the children as in the first scenario provided that the children are able to continue to attend school in Sydney each school day. It was part of the father’s case that the mother had available to her suitable accommodation in Sydney such that, even if she continued to reside in her present home, she could nonetheless have a substantial and significant time arrangement with the children.
The mother’s proposal is that the children remain living with her and have contact with the father during the first and third week of a four-week cycle. During the first week of the cycle, the mother would collect the children from school on Friday afternoon and deliver them to the father’s residence, and would then collect them again on 3 pm on Sunday afternoon. On the third week of the four-week cycle the father would collect the children from the mother’s home at 3.30 pm on a Friday afternoon, and return them to their school on Monday morning. She also proposed half of each of the shorter school holidays and also half of the Christmas school holidays.
The effect of the mother’s proposal would be to reduce the frequency of the father’s contact with the children from potentially three weeks out of a four-week cycle, to two weeks in a four-week cycle.
It is the mother’s case that she cannot, and will not, relocate back to Sydney, whatever orders are made. It is the father’s case that he cannot, and will not, relocate to an area close to where the mother and children currently reside. Both parents make proposals about air travel.
Evidence
The evidence in the father’s case consisted of his affidavits, and those of his partner, Ms M. Both were cross-examined.
The mother’s evidence consisted of her affidavits, and the affidavits of Dr J, and Dr C. She was cross-examined, as was Dr C.
Associate Professor Q was the court-appointed expert pursuant to part 15 of the Family Law Rules. In evidence was her three reports. She was extensively cross-examined. In evidence there was also a substantial quantity of documents produced on subpoena, as business records.
Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order…
Significance of Time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Parental conflict and shared parenting
Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[2]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[2] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’ and the containment of acrimony may prove to be central benchmarks.
This research is consistent with earlier research undertaken by Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[3]
[3] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
All of this research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence. One also lives in hope that parents might learn from it.
Evidentiary issues
Section 136 of the Evidence Act
On the application of the applicant father I ruled that pursuant to section 136 of the Evidence Act 1995 (Cth) certain paragraphs in the reports of Associate Professor Q (the expert) were not to be received as evidence of the facts asserted by the persons who made these statements to the expert. The paragraphs in question are identified in exhibit A11. I set out the reasons for making this order.
Section 136 of the Evidence Act states:
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
Mr Richardson SC submitted that the expert sets out in her reports, and possibly relied on in making her assessment about the father, a significant volume of evidence from third parties not called to give evidence in the wife’s case. This evidence relates to the father’s character, personality and actions in the past. In effect the father considers this evidence to be inherently unreliable, unfairly prejudicial to him, and misleading or confusing to the court. His case was that the present issue goes beyond a mere question of the weight that ought to be attributed to this evidence. It is important to note, however, that the father was not seeking to exclude the experts report or even just to exclude her conclusion. The purpose was much more limited.
An example of the material the father considered offensive provides some understanding of his concerns. At pages 7-14 of the expert’s first report dated 20 October 2005, she sets out histories provided to her by persons associated with the mother’s family. The evidence shows the father in a negative light. None of the persons giving these histories were called to give evidence in the mother’s case before me, though the first report was clearly relied on in the mother’s case before me.
The relationship between this evidence and the expert’s conclusions are apparent, for example, from her comments at heading 4 on pages 31-32 of her report:
THE EMOTIONAL STATE OF EACH OF THE PARTIES AND THEIR PARTNERS AND THE CHILDREN SO FAR AS IT RELATES TO ISSUES OF RESIDENCE AND CONTACT
KLD is a well adjusted woman and has no psychological disturbance.
SCVG impressed as a mature and worldly man yet the behaviours reported by the maternal family, especially the sending of the toilets as birthday gifts, suggests very immature and perhaps vindictive behaviour. If the reports of his behaviour provided by KLD and her family are to be relied upon, it appears that SCVG has significant personality problems. These are not impartial reports and must be read in that context, but they certainly suggest a severely narcissistic and obsessional personality who would have an excessive need to be loved and admired and to be in control of relationships and who, when these needs are frustrated, can behave in an impulsive, aggressive and threatening manner.
It is always possible that the effect of the stroke has been to impair SCVG’s personality function so that he may be manifesting behaviours that are less mature and adaptive than he might have previously and, if this were the case, it is to be expected that pre-existing personality traits would be magnified.
In the expert’s third report, dated 9 February 2010, the material considered offensive by the father included histories given by persons not giving evidence in the mother’s case at pages 13, 17-18 and 23. The expert’s comments about the father, and the potential relationship between these passages, and those identified in the first report, may be identified at page 38 of the second report:
Thus, there remain concerns about the father’s propensity for volatile highly conflicted relationships and, ultimately for domestic violence; for this reason he is not well suited to the role of primary carer – especially not with older children. It is clear, however, that to date SCVG has been a loving and devoted father and is strongly committed to the little girls and that they have a strong attachment to him and they greatly enjoy their time with him.
There are indications that SCVG also has a history of conflict in other relationships: he was not very forthcoming about the stressful issue at work but possibly there has been litigation in the work situation. Although as a [occupation omitted] his use of litigation in such situations may be understandable yet it also seems likely that this reflects his personality style.
Senior counsel for the father ultimately submitted that the weight that I would give to the expert’s observations, comments and recommendations must inevitably be undermined to the extent that the same were based on evidence that was inherently unreliable, unfairly prejudicial to the father, and confusing to the court. This is particularly so in circumstances when some or all of the third parties who made these representations to the expert may have been available to give evidence but were not called in the mother’s case. It was submitted that, particularly in the context of obviously important expert evidence, it was not just a question of considering the weight to be given to this offensive evidence (as opposed to the weight to be given to the expert’s observations, comments and recommendations), it was necessary to limit the use of such evidence under section 136 and to not receive it as evidence of the facts asserted by the individuals making such statements.
Senior counsel for the father referred me to a decision of the Court of Appeal of the Supreme Court of Western Australia Pownall & Others v Conlan Management Pty Ltd & Another (1995) 12 WAR 370, and in particular the passages in the judgment of Ipp J at pp.372-378. For example at p.373 Ipp J cites with obvious approval the comments of Gibbs J in Hughes v National Trustees Executors & Agency Co of Australia Ltd (1979) 143 CLR 134 at 153:
[In] general, it is the duty of a judge to reach his decision on evidence that is legally admissible, and to put evidence only to those uses which the law allows. When a statement is admitted, not as evidence of its truth but simply as original evidence, the mere fact of its admission cannot enable it to be given an additional probative value which the law denies.
In his written addendum to submissions, Senior Counsel submitted that whilst the decision in Pownall has not been discussed in any Family Court decision, it is nevertheless a decision of an intermediate appellate court on an issue of law which is applicable throughout the Commonwealth, and that I should follow it unless I was convinced that it is plainly wrong. I am certainly prepared to accept this decision to the extent that I have quoted passages from it. I also have no reservations about passages at pp.344-345 to which I was referred. I have some reservations about the passages at pp.376-378 of the judgment insofar as it deals with the issue of admissibility of evidence as opposed to the weight it ought to be given. This is not a matter that arises in the present case. In passing I note that there is later authority on this issue (Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157) that seems to me to lean in favour of the issue being one best characterised as weight rather than inadmissibility. Moreover in parenting proceedings the provisions of Division 12A of Part VII of the Act may be relevant.
I found to be helpful the discussion of s.136 by Odgers (Uniform Evidence Law, 7th ed, Thompson Law Book Company, 2006) at pp.626-632 and the example given at para.1.3.14680:
The effect of s.60 (discussed at [1.3.940] and [1.3.4330] is that evidence of out-of-court representations of fact admitted to explain the assumptions on which an opinion is based, may then (subject to s.136) also be used to prove the existence of the asserted facts. This means that not only such material as the reported data of other experts and information commonly relied on in the area of expertise may be relied on for a “hearsay purpose”, so also may statements made to the expert about the facts of the particular case. Where unfair prejudice would be caused to a party in these circumstances, it may be appropriate to limit the use to be made of the evidence to testing the basis of the specialised knowledge of the expert to whom the communications were made. Whether s.136 is to be utilised in this way will depend on all the circumstances of the particular case.
It seems to me that there is a clear analogy here between a case where s.60 of the Evidence Act allows hearsay evidence to be used for a non-hearsay purpose, and the present situation where s.69ZT(1)(c) potentially excludes the operation of the hearsay rule generally.
It is important to also consider the submissions of Senior Counsel for the mother on the s.136 issue. Ms Rees submitted that in Division 12A proceedings, and particularly where I had already rejected an application under s.69ZT (3) for provisions of the Evidence Act to be applied as there were no exceptional circumstances, the s.136 application would need to be determined “in the framework of Division 12A… that contemplates that hearsay evidence is admissible”. (transcript p.77 lines 17-23). I do not accept this submission. Section 136 clearly stands outside of the Division 12A framework. It is not excluded by s.69ZT(1). I infer that if the legislature had intended to exclude s.136 it could easily have done so. It follows then that s.136 should not be interpreted in the shadow cast by s.69ZT. My comments should not be read as a general endorsement of s.136, or even for that matter s.135 of the Evidence Act, as “back door” methods to get around s.69ZT where there are no exceptional circumstances. In this case, for example, it is aspects of expert evidence to which s.136 is sought to be applied. In parenting cases expert evidence often plays a significant though not necessarily determinative role.
Where hearsay evidence is or may have been relied on in the context of preparing an expert report there is, in my opinion, a greater likelihood of there being unfair prejudice to a party, or misleading or confusion caused. By contrast there may be less likelihood of this for lay evidence, and it may be far easier to treat the issue as one of weight as s.69ZT(2) contemplates.
Senior Counsel for the mother submitted that it could not have been the intention of Parliament in enacting Division 12A that every single person who the expert interviewed needs to come along to give evidence to confirm what they have said. Moreover, she submitted, that has never been the law in relation to expert evidence. I do not disagree with this submission, and I do not regard the effect of my ruling in this case to have the effect of endorsing the proposition postulated. Section 136 has the necessary safeguards to ensure that the scenario does not occur: it is discretionary, there must be unfair prejudice, or the evidence must be misleading or confusing. As Odgers states, with examples from the cases (para.1.3.14640), the nature of the proceedings will also be relevant. I daresay that it is not just the nature of the proceedings, but the issue to be determined and its significance in the case, that will be also relevant. I have already drawn the distinction between lay evidence and expert evidence. Other aspects of this submission are undoubtedly correct, and thus, for example, the distinction drawn in the cases between non-specific expert hearsay evidence and specific expert hearing evidence, is a useful one: Pownall at pp.347-375 citing Megarry J in English Exporters (London) Ltd v Eldonwall Ltd [1973] 1 Ch 415.
Senior Counsel submitted that, in any event, the material identified in the expert’s reports was neither prejudicial nor confusing. That may well be so if one passage is isolated from the others, but even individually there is potential to be prejudicial and, on balance, given the significance of the expert evidence in this case, I find that the material identified, in its totality, is both unfairly prejudicial and confusing.
Issue estoppel
Senior Counsel for the mother submitted that issue estoppel applied as regards findings made by Moore J in her reasons published 13 April 2006 and that this was particularly significant given the reliance by the expert, at least in part, on these findings. Senior Counsel for the father submits that there is no issue estoppel in these circumstances. It is necessary to firstly examine the extent to which the expert refers to and relies on the findings of Moore J, and then to briefly explore what those findings were.
At p.37 of the third report, under the heading “The emotional state of each of the parties and their partners and the children so far as it relates to issues of residence and contact”, the expert states:
I note the judgment made in 2006, that SCVG’s behaviours had been ‘impulsive, vindictive, intimidating and offensive’ – in effect this description is in keeping with the features I had described as narcissistic and controlling and which, together with his obsessional personality style, were of concern. His determined and perhaps obsessional pursuit of these matters through the higher courts since then may only reflect his strong investment in a better outcome that would maximise the opportunity to spend time with his children, plus the fact of his professional training, but there remains the impression of a narcissistic and obsessional personality style with a determination to prevail.
It seems a reasonable interpretation of this paragraph that the experts impression of the father as having a “narcissistic and obsessional personality style with a determination to prevail” was, at least in part, based on the findings made by Moore J in 2006.
From the father’s perspective, however, it was contended that to the extent that the expert’s conclusions were founded on evidence to which s.136 of the Evidence Act applied, the court would need to be cautious indeed in attributing weight to these conclusions. Of course the same could not necessarily be said of the findings of Moore J who in fact heard the evidence of many of the witnesses whose evidence was subject to my s.136 ruling. This is not an attack on the findings of Moore J, it is an attack on the weight to be given to the expert’s conclusions in a context where even the mother’s Senior Counsel conceded, the expert “has clearly taken on board the findings of fact that her Honour made in the judgment” (transcript, p.92, lines 10-11). The father further contends that no issue estoppel arises from how a witness, even an expert witness, encapsulates how a trial judge made certain findings. Moreover he submits that, firstly, the criticism of the father is confined to a window of some 5 months and, secondly, his behaviour 4 years ago is not as relevant as his behaviour since then. In short, it is “not a fact of the nature that has a contrived or static existence” (transcript p.92 lines 38-39).
As the characterization of the father’s behaviour is an important issue in the present case it is helpful to explore the findings made by Moore J, and the evidence that informed these findings. These are not, of course, determinative in the present proceedings but they do provide some clarity on the issue estoppel, and may assist in understanding the expert’s conclusions, particularly in view of the matters set out in preceding paragraphs.
Her Honour records at paragraph 24 of her reasons what amounts to the father’s admissions to the expert “that he overreacted to things and he acknowledges he “went ballistic” and damaged painting by
KLD’s friend…”At paragraph 27 her Honour accepts the evidence of Professor A, the mother’s treating psychiatrist, who reported that the mother had described “verbal abuse and controlling and jealous behaviour from her husband about the time she spent with family and friends, his destruction of some of her belongings, and that she was becoming increasingly fearful of him.” At p.21 her Honour accepted, at paragraph (c), the mother’s evidence that there had been occasions when the father “has raised his voice in speaking to treating doctors and he has yelled at KLD in front of the children and medical staff.” At paragraph (e) on the same page, her Honour found that on one occasion “there was open dispute in front of [X] between SCVG and the [KLD’s family] about whether they would be taking her back to [B] with them.”
At paragraph 47 on p.29 her Honour states:
Yet it seems to me the evidence attracts two comments. First, while all of the witnesses acknowledged awareness of suggestions about aggression, abuse, narcissism and the like, that was expressed in general terms. No-one indicated any awareness of the particular actions of SCVG over these past months that incontrovertibly did occur, as discussed above. Secondly, it may readily be accepted that none of the witnesses have experienced behaviour of the kind generally described, and it is highly probable none have experienced behaviour of the particular kind KLD and her mother related here. But then none of them are his former partner/spouse and co-parent and thus have never had to negotiate with SCVG a significantly changed relationship arising from a separation which is beset by disagreement about future arrangements for children. Mr G makes the point on his behalf that the conduct occurred in a fairly narrow period, between June and November, and of course that is borne in mind. By the same token, there has not been just one or two ill considered incidents; there have been a series of actions that demonstrate a preparedness to engage in offensive and intimidating behaviour that seems to be quite reckless as to the impact it might have on others.
Another significant paragraph in her Honour’s reasons is paragraph 51:
Any effect of the stroke upon his personality function remains speculative. But, accepting as I do the description given by
KLD and her mother of his behaviour, and accepting as I do Dr Q’s assessment of it, I conclude that while SCVG is obviously intelligent and capable of acting in an urbane manner, he is also capable of impulsive, vindictive, intimidating and offensive behaviour without apparent regard for the impact of it upon others. These personality traits, in my assessment, are likely to render it quite difficult to conduct dealings with him in a courteous and constructive atmosphere, particularly if a position is taken about the children’s arrangements contrary to his own. For that to be played out in front of the children – and there have been occasions already when the children have been exposed to yelling and abuse – is particularly undesirable and certainly detrimental to their well-being for it to continue into the future. In his interview with Dr Q SCVG described himself as somewhat introverted, not shy or reserved, very focussed, single minded, something of a perfectionist, and tending to be more demanding on himself than others. No doubt they are also qualities to his personality.
Her Honour’s final, relevant finding is at paragraph 78 where she focuses on the respective capacities of both parents to meet the emotional needs of the children:
Plainly children have wider needs than those already discussed and one important aspect to their healthy growth and development is having their emotional needs met. In her report, Dr Q said there are no issues regarding the mother’s capacity to meet all of the needs of the children. The evidence as a whole supports a finding to that effect. In particular, I am satisfied, as recorded earlier, that she can and does support the children’s relationship with their father; what she does not accept is his manner and conduct towards her. Dr Q also said in her report that SCVG has no limitation in terms of meeting the children’s emotional needs though she would not adhere to this view if findings were made about his behaviour discussed earlier. The evidence as a whole does not support the initial provisional opinion. As I find, SCVG does have limitations in that area and support for that assessment comes from several directions:
It is notorious and needs no expert evidence to conclude that children’s healthy development will be enhanced if their love and respect for a parent is maintained intact and not undermined. SCVG’s attitude towards the children’s mother and some of his behaviour towards her, on occasions in their presence - which I accept to have been variously rude, obstructive, unco-operative, loud and insulting - has put the children’s well-being at risk. As Dr Q commented, if the reports of his behaviour are accepted [and they are] it constitutes a risk to the children akin to the impact on them of exposure to domestic violence which is also notoriously well known and needs no elaboration. I accept it is behaviour from which they need protection and I also accept as sound her observation under cross-examination that behaviour of that kind would be a reason for limiting their exposure to it by limiting contact.
Two issues arise out of this evidence. The first is whether her Honour’s findings about the father’s behaviour and his capacity to meet the emotional needs of the children, creates an issue estoppel. I think the answer is plainly no. This is not only because the conduct in question is limited to a five month period in 2005, and findings were made in 2006 (over 4 years ago), but also because the present proceedings are founded on changed circumstances (see my reasons on the Rice v Asplund application – [2009] FMCAfam 708) since the orders made by Moore J and also involve a consideration of the children’s future.
I agree with the submission of Senior Counsel for the father that in the circumstances of the case any determination by Moore J of issues of fact do not create an issue estoppel in these proceedings: Blair v Curran (1939) 62 CLR 464. In any event I agree with the statement by the learned authors of Cross on Evidence at para.5125 that there is no strict rule of issue estoppel binding on any of the parties in children’s cases.
The second issue is whether the expert was entitled to form the impression at p.37 of the third report “of a narcissistic and obsessional personality style with a determination to prevail”. This issue is best dealt with in the context of a broader exploration of the expert’s evidence and the weight that ought to be given to it.
The evidence of Associate Professor Q
The expert provided three reports: the first one dated 20 October 2005, the second one dated 6 February 2006, and the third one dated
9 February 2010. The first and second reports were also in evidence before Moore J at the first hearing. The expert was extensively examined by both Senior Counsel on the fifth day of the hearing,
18 May 2010. In discussing the expert’s evidence I intend to focus only on the more contentious and important issues.
In the first report there were few if any real concerns about the capacity of each parent and their partners to provide adequately for the physical, emotional and intellectual needs of the children. Putting aside issues about the father’s physical capacity to cope with the children arising out of his disability, which are now historically irrelevant, the expert thought that the father “has no limitations in terms of meeting their emotional and intellectual needs”. In relation to the mother there were “no issues regarding… [her] capacity to meet all the needs of the children.
In the second report, the expert’s comments in relation to this consideration are found at pages 35-36:
SCVG has improved physically since the first assessment while [Y] has grown and now requires less physical care so the net effect is that the father has minimal disability in terms of providing for the children physically. In addition, Ms M is now a permanent member of his household and she is well able to meet the needs of the children. Thus, overall there is little cause for concern about the physical care of the children in that context. Even with the assistance of Ms M, however, SCVG is finding the travel tiring and given his age and his mild physical limitations this is not surprising.
The father is well able to meet the intellectual and educational needs of the children and he provides for them very well in most respects, however there remain concerns about his adjustment and personality style, as described at the first assessment, that detract from his capacity to meet their emotional and psychological needs. In particular his propensity for volatility remains evident and the breakdown of his relationship with [L] is of concern as are the indications that he has a history of relationship conflict.
The mother has some problems with her hip joints and it is likely that long hours of car travel are more difficult for her than they might otherwise be but generally she has little restriction in terms of her capacity to meet the physical needs of the children. She is well able to meet their educational and intellectual needs. Generally KLD meets the emotional needs of the children very well with the exception that she appears to have influenced them to some degree to feel wary of their father’s intervention; this is of concern but it may be an inevitable effect of the impact on her of continuing litigation.
While KLD says she facilitates the relationship if the father’s evidence can be relied upon it suggests that she has made a number of unilateral decisions. Notably SCVG is concerned that she did not seek medical attention for [Y] as early as she might have and that she was overly hasty to return to Canberra and then to return to [B] with [Y]. There is no indication from medical records that the mother’s care of the child was in question and I note that if there was a pre-existing respiratory problem this was not detected at [C] Hospital either since they would probably not have proceeded with anaesthetic if it had been apparent, so it is unlikely to reflect on her parenting. It seems, however, that she might have made more effort to involve the father in the process. Nonetheless, KLD has generally provided good care for the children and [Y] has made excellent progress. In my view her handling of that medical crisis with [Y] while it may not have been ideal does not raise such concern as to question her parenting capacity. Certainly KLD has a better capacity than has the father to forge collaborative relationships with medical personnel and this is an important aspect as well of the overall care of [Y]’s medical condition.
Ms M impressed as a warm and outgoing person. She is very experienced with children in difficult circumstances and that is a considerable asset in this situation. She does not have children of her own but has sustained a remarkably close relationship with her godchild and obviously she is greatly trusted by the child’s mother. Mostly she appears well suited to the role of a stepmother to the two little girls, although there is some indication that she may prioritise the father’s needs above theirs. It is apparent that the children have a very warm, relaxed relationship with her.
A number of issues arise out of the oral evidence of the parties that are relevant in the present context. For example it is apparent that Ms M and the father were not, in fact, cohabiting as at 16 March 2010 when she gave evidence. The expert was cross-examined about this issue by Senior Counsel for the mother (p.62, 18 May 2010, lines 29-35):
And if it were the case that they don’t live together, does that have any effect on what you say should be the outcome for the children?‑‑‑Well, I think her presence in the household was a positive in that having another adult in the household I think is important, both from the physical care of the children and for the – perhaps protection from the father’s possible volatility. So if she’s not in the household I – I would have more concerns about the father having the children in his care without another adult in the house.
I accept the experts concerns about the absence of another adult to assist the father with the physical care of the children. I will discuss below whether I accept her comments about the father’s “possible volatility”. Likewise I will discuss below whether the evidence supports the expert’s concerns about the father’s ‘adjustment and personality style’. I do accept, however, that the father’s relationship with his daughter [L] does appear to have broken down. I do not accept, however, that the evidence supports a finding of ‘a history of relationship conflict’.
The totality of the evidence does support a finding that the mother “meets the emotional needs of the children very well with the exception that she appears to have influenced them to some degree to feel wary of their father’s interventions”. The language I will use to describe the mother’s influence of the children will be far less diplomatic than the language used by the expert. Indeed her influence over the children is such that, together with their age, developmental stage, and the existence of such a high degree of conflict between the parents, I can place no weight whatsoever on whatever the children may have said by way of expression of relevant views.
I accept what the mother appears to have said to the expert, and what I believe that the expert ultimately concludes about the mother – that she has facilitated the children’s relationship with their father, though she struggles at times with appropriate comments and actions about the father. This is evident from two brief extracts of the expert’s cross-examination by counsel for the mother at page 56 line 33 to page 57 line 2, and page 58 lines 5-32 on 8 May 2010:
You’ve given evidence on a number of occasions today, about the good relationship that exists between both of the girls and their father?‑‑‑Yes.
They’ve been in the primary care of their mother for five years now. Since, I think, [Y] was only months old, four or five months?‑‑‑That’s right.
[X] was two and a half. It must be the case, mustn’t it, that if they have this good relationship with their father that you’ve observed, then their mother has been a major contributor to that?‑‑‑Yes, I think that she’s obviously done a lot of driving, and bringing the children regularly, and sustaining the contact as far as she’s needed to.
And she’s also, surely, it would follow, done the emotional sustaining of their relationship with their father as well?‑‑‑Well, I think probably both. That she’s done – she’s supported it, but there are also certain comments that she’s made that have not been – not been appropriate.
and
MS REES: I want to suggest to you that in circumstances of what you perceived to be KLD’s view of SCVG, she must have made an enormous effort of will to encourage the children’s relationship with their father?‑‑‑I think she’s made – she’s made efforts, yes. Yes.
And I want to suggest to you that her having done so is inconsistent with her now, it is suggested, trying to influence them against him?‑‑‑I would – think that – not that there’s been any change of heart, but that mostly she’s supportive, but at times, there are probably times when she says something that’s inappropriate or unsupportive. Which is not really surprising.
If KLD had wanted to do so, she could have ensured that her children didn’t have a good relationship with their father, couldn’t she?‑‑‑Yes.
And that’s particularly the case in relation to [Y]?‑‑‑Yes. Yes, with [Y], particularly, since there was no bond established before they moved away.
And from your observations of the children and their father, she has been capable, hasn’t she, of supporting their relationship with him thus far?‑‑‑Yes.
And you have no reason, do you, to think that she’s likely not to continue to do that?‑‑‑I think probably will continue as it is, mostly supporting, but at times, perhaps, speaking or behaving in a somewhat negative way.
In a negative way that, would you suggest, arises out of her direct experience of him?‑‑‑Yes, I think it’s – it’s obvious that there’s a lot of bad feeling between them as a couple, and it’s really probably impossible that that doesn’t at times leak out in front of the children.
I accept that the evidence clearly indicates that the mother has made a number of unilateral decisions, particularly in relation to [Y]’s medical treatment. Again the expert is being exceedingly diplomatic in merely saying that the mother “might have made more effort to involve the father in the process”.
The next relevant heading in the reports is ‘The emotional state of each of the parties and their partners and the children so far as it relates to the issues of residence and contact’. In both reports the expert found the mother to be free from any psychological or psychiatric disturbance. In the first report the expert suggested that, subject to the veracity of partisan reports, the father’s behaviour was suggestive of “a severely narcissistic and obsessional personality who would have an excessive need to be loved and admired and to be in control of relationships and who, when those needs are frustrated, can behave in an impulsive, aggressive and threatening manner”. In her second report the expert does not change her opinion, but again acknowledges her dependence on partisan reports.
The expert’s treatment of this issue in the third report commences from the second paragraph of page 37:
I note the judgement made in 2006, that SCVG’s behaviours had been ‘impulsive, vindictive, intimidating and offensive’ – in effect this description is in keeping with the features I had described as narcissistic and controlling and which, together with his obsessional personality style, were of concern. His determined and perhaps obsessional pursuit of these matters through the higher courts since then may only reflect his strong investment in a better outcome that would maximise the opportunity to spend time with his children, plus the fact of his professional training, but there remains the impression of a narcissistic and obsessional personality style with a determination to prevail.
It is of concern that SCVG’s relationship with [L] has broken down. He says it is simply not relevant to this assessment but in my view it is very relevant. It is not an isolated instance but part of a pattern in his life of highly conflicted relationships, including: there was a long period of conflict with his first wife; he has remained in conflict with KLD for many years; and now there is conflict with his daughter. His view of the difficulties with [L] seemed dismissive and certainly reflected his marked propensity for externalising – meaning that fault or responsibility is attributed outside of himself. It may be that the problems arose because of difficult behaviour on the part of [L], but this is common with adolescents and is one of the many challenges of parenthood. It is of concern that SCVG does not seem to accept responsibility for having played a part in the relationship breakdown and that he dismisses the relevance of it so readily. It also raises the possibility that SCVG may have difficulties relating to [Y] and [X] when they reach an age where they may challenge his authority. Alternatively the girls may learn to adopt a mode of appeasement in order to avoid conflict; this is an adaptation that may well bring problems in their later lives.
Although it would seem that to some extent KLD has taken advantage of this situation and has perhaps said too much to the children, it is also apparent that independently the children are aware of the conflict between their father and [L] and that it has been a disturbing issue for them. It seems that they have witnessed some of the volatility in that situation.
Thus, there remain concerns about the father’s propensity for volatile highly conflicted relationships and, ultimately for domestic violence; for this reason he is not well suited to the role of primary carer – especially not with older children. It is clear, however, that to date SCVG has been a loving and devoted father and is strongly committed to the little girls and that they have a strong attachment to him and they greatly enjoy their time with him.
There are indications that SCVG also has a history of conflict in other relationships: he was not very forthcoming about the stressful issue at work but possibly there has been litigation in the work situation. Although as a lawyer his use of litigation in such situations may be understandable yet it also seems likely that this reflects his personality style.
The expert was meticulously cross-examined by Senior Counsel for the father about her evidence in relation to the father’s behavioural features and personality style. The significance of my ruling under section 136 of the Evidence Act comes to the fore here. The most relevant passage in the transcript commences at page 37 line 18 on 18 May 2010:
Let me ask you the question again. If the reader of page 3 of the third report was to take it as a suggestion that, at some earlier point of these proceedings, you had in fact made a diagnosis of personality disturbance, then they would be reading too much into it. Because, can I suggest to you that, in your oral evidence before Moore J, you made it clear that, in fact, you weren’t saying you had made a diagnosis it all, you had pointed to traits?‑‑‑I put it into personality traits, yes.
And part of, as you explained to his Honour a few minutes ago, part of the information that today you feel might point more strongly, as against SCVG, includes the findings, as you explained, made by Moore J, who had more evidence?‑‑‑Yes.
And I’m asking you, again, for the purpose of this question, to assume that those findings related to a period of about five months, and there’s no evidence of it since. So that ‑ ‑ ‑?‑‑‑Well, I also had other history, by the time I write the third report.
Outside of these partisan people and Moore J?‑‑‑Well, there’s a history from [Z] as well, that suggests a long period ‑ ‑ ‑
But he is one of the ones that’s highlighted?‑‑‑Okay. So you’re counting him as ‑ ‑ ‑
I’m putting everybody out the door, that’s not a witness in this case?‑‑‑Okay, everybody. Even [Z], all right. All right. If we put even [Z] out the door ‑ ‑ ‑
And I’m not asking you to accept that SCVG doesn’t have quirks about his personality, or a personality that might be different to mine, yours or even his Honour’s, but rather that you hadn't, at any earlier stage of the proceedings, made a determination of a disorder. And that, on the hypothetical basis I have put to you at the moment, you wouldn’t now. That is, the hypothetical that excluded the views of these people, and excluded any proposition that Moore Js findings represented a current position?‑‑‑Well, if you exclude all of that information, I have to agree with you.
And if the evidence, at the end of the day, was to ultimately suggest that his – what I’ll describe as the bad behaviour that was described by the partisan witnesses in the proceedings before Moore J – did not, in general terms, go beyond those proceedings, then it would be likely that that behaviour manifested itself from some reactive condition. Is that a possibility?‑‑‑Yes.
And that’s as opposed to a personality disorder. Are those things commonly described as adjustment disorders?‑‑‑Yes.
And if it be accepted that those matters were confined to such a window of months – and I’m not saying by this that he has been an angel every minute of every day since – but the prevalent matters of misbehaviour were confined to a period of months, then looking backwards, would it be likely that one could include, as a matter of diagnosis, that he had some form of adjustment disorder, perhaps with a depressed mood?‑‑‑Yes, if it was confined to that period of time, I think it would be reasonable then to say it was a reactive disturbance.
And it’s a textbook classic recognition, is it not, of such a reactive disturbance, that one of the features that would support that conclusion is if the behaviour came to an end within a window of about six months after the relevant stressor came to an end?‑‑‑Yes, it would be.
Would that be fair to say?‑‑‑Mm.
Whereas people with personality disorders, there’s no closed period, they ..... forward?‑‑‑No, it’s usually enduring characteristics
The expert goes on to accept that the trigger for the father’s reactive disturbance was probably the circumstances of the separation, the unilateral relocation of the children, and the consequent litigation (transcript page 38 lines 42 to page 39 line 2).
I accept that the only acceptable evidence of impulsive, vindictive, intimidatory and offensive behaviour on the part of the father was in fact limited to a period of about five months in 2005. There is no evidence before me to justify any such finding since then. I accept the expert’s evidence that, more likely than not, the father suffered a reactive disturbance or an adjustment disorder, rather than a personality disorder. The totality of the evidence does not support the expert’s on-going description of the father as narcissistic, controlling, and with an obsessional personality style, though this may well have been the case had there been evidence of a continuation of the father’s behaviour beyond the five month period referred to above. I am not prepared to accept that the pursuit of proceedings through the courts, including perhaps the present proceedings, is of itself evidence of a narcissistic and obsessional personality style with a determination to prevail.
The expert was cross-examined about her comments in relation to the father’s relationship with his daughter [L] at page 53 on 18 May 2010. To the extent that the expert is critical of the father for not perceiving the relevance of the breakdown in his relationship with [L], she concedes that she should have done more to persuade him about its relevance but did not. Her comments about the father’s relationship with [L] are to be tempered in this regard. Nonetheless I am satisfied that there is evidence to sustain a finding that the father has been engaged in a series of conflictual relationships including with his first wife, and with the mother in these proceedings. I am not prepared to say that his current relationship with [L] falls into this category.
I do not accept the expert’s conclusion at page 38 about the “father’s propensity for volatile highly conflictual relationships and, ultimately for domestic violence”. The evidence does not sustain the link drawn by the expert between conflict and domestic violence. The evidence is quite clear – there was no physical violence. The evidence is also quite clear that any non-physical violence was limited to a period of no more than 6 months which occurred five years ago. This happened in the context of a highly stressful separation. This does not in any way justify the father’s behaviour at the time, but it does provide a context within which to understand it. It is the type of violence which Kelly and Johnson categorise as separation instigated violence (J.B. Kelly and M. P Johnson, “Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions” (2008 46 FCR 476). I do not accept the mother’s evidence that the father’s actions since then amount in any way to ongoing harassment or abuse. Indeed for reasons that I will expand upon elsewhere, I found the mother to be quite disingenuous as regards parts of her evidence, including her evidence about the father’s behaviour since the orders made by Moore J.
The next relevant heading in the reports is ‘The likely effect of each of the parties’ proposals as to residence and contact, including the effect on each child of separation’. I place little weight on the first report in this regard. The father’s proposal was quite different at that time. The children were much younger. In any event the expert’s comments were influenced by her perception of the father having a physical disability that would limit his capacity to physically care for the children. This physical disability was no longer an issue by the time of the third report. It is significant to note, however, that the expert had concerns in the first report about the mother living in [B] over the long term and that this concern continued into the third report.
The third report deals with this consideration at pages 38-40:
For the reasons explicated above, it is my view that the father is not well equipped psychologically to provide primary care or even equal shared care; but he does have a strong investment in the children and a loving relationship with them and in many respects he provides well for them. In this he now has the excellent support of Ms M. It is important therefore that the children have an opportunity to spend substantial time with him.
While I am of the view that the best interests of the children are served by remaining in the primary care of their mother, I continue to hold reservations about them residing in [B] over the long term. The issues relating to [Y]’s medical needs are lessening with time, notwithstanding the crisis last year, and it is likely that she may have few if any special needs in the very near future so this is less of an issue now than it was before. The travelling, however, is very taxing on SCVG and to some extent on KLD as well and there are dangers in sustaining this level of travel on country roads. Their journey home in the winter in the dark and on icy roads is of particular concern. In addition to those risks, there is the issue that the distance is an obstacle to the girls having time for an optimal relationship with their father and other members of the paternal family. As well, having to spend most of their weekend and holiday time travelling to visit their father takes them away from their primary base and will compromise the girls socially and in terms of sports and other extracurricular activities, especially as they grow older.
There may also be some question that [X] is sensitive on the issue of race. KLD was confident that there are no issues of racial discrimination in [B] and possibly this is the case, however, Sydney perhaps offers a wider range of schools with very diverse populations.
As before, I am of the view that the ideal outcome would be for the mother and children to reside in Sydney and for them to spend a substantial amount of time with their father, although perhaps not half their time. It appears that the prognosis for the maternal grandfather is limited so this is not a good time to consider relocation. I note SCVG’s concerns about comments that have been made to the children about their presence sustaining the grandfather’s life and I would agree that there may need to be some thought given to how best to manage this situation with the children. It would certainly be very difficult for the girls if orders were made for a change in their circumstances and that such change then coincided with the death of their grandfather.
If there is to be any change to the orders, as a way of limiting the travel I would favour the children spending more block time with their father rather than three weekends out of four; perhaps seeing him on alternate weekends, with him travelling to Canberra one weekend in four and the mother travelling to Sydney one in four. The children are well able now to spend half the school holidays with their father but as they grow older they are likely to find it difficult not being able to spend some of this time with friends and perhaps missing out on sport and other out of school activities.
A number of issues arise from the evidence and my findings. Having regard to my findings above, to the extent that the expert’s conclusion that that father “is not well equipped psychologically to provide primary care or even equal shared care” is based on matters in respect of which there is insufficient evidence to sustain the conclusion, it must follow that I cannot accept the same. However, the evidence does cast some doubt on the extent to which Ms M is able to provide “excellent support” to the father in his care of the children. Her support does not extend, it seems, to actually moving in with him.
There is no doubt that the travel wears down all the travellers. As the children progress through developmental stages their capacity for and tolerance of travel may well change. The children may well soon be able to travel by air, whether accompanied or not. This will reduce the amount of travel time, as well as ease the burden for the driver. I will discuss this further below in the context of the appropriate orders to make. This consideration is not determinative.
Capacity of parents to provide for the needs of the children
There is an issue about the father’s capacity to meet the physical needs of the children. There are issues about the capacity of each parent to provide for the emotional needs of the children.
The father’s evidence about his capacity to meet the physical needs of the children is set out in his written evidence. He has suffered a stroke, but I am satisfied that this is no impediment to caring for the children. He is a [occupation omitted] and earns a substantial income. He intends to retire in 2014. The house in which he lives in a more than adequate home for the children in terms of its facilities and amenities. He states that his working hours are 8:45am to 5:15pm but that there is a “margin of flexibility when required”. However, he acknowledges that, for example as 11 April 2008, his work commitments prevented him having contact with the children. He also gave evidence that a Monday change-over was impractical for him due to work commitments. Perhaps the flexibility is not as great as the father asserts?
Despite the voluminous evidence of the father there was, surprisingly, scant evidence about the proposed detailed arrangements for the care of the children should they live with him. I do not know, therefore, who would get them up, ready for school, and sent to school. I do not know who would collect them after school and feed and bathe them, get them to bed etc. I know that Ms M has been involved in their care in the past, but as I have indicated elsewhere, the true nature and extent of the father’s relationships with her, and therefore the extent to which she will be involved in the children’s lives, is unknown to me. These are surprising gaps in the father’s case. True it is that what scant evidence there is was not challenged in cross-examination, but the problem is not the evidence he gives, but rather the evidence he does not give. It is particularly surprising that this detail is missing given the amazing detail of much of the fathers’ other evidence. As against this, however, the expert does not have serious concerns about the father’s capacity to provide for their physical needs. Nonetheless it is a concern that I have, and it is a consideration I am required to have regard to.
Apart from the issue of the mother’s willingness to facilitate and encourage the children’s relationship with their father, and in particular her willingness to involve him in decisions relating to the children (which I have discussed above), I find that the mother does have the capacity to meet the emotional needs of the children. It is possible, indeed likely, that both parents have involved the children in these proceedings unnecessarily. To that extent they have both demonstrated a lack of insight into the children’s emotional needs.
I reject the experts concerns about the father’s capacity to meet the children’s emotional and psychological needs, as summarised in paragraph 2 of page 35 of the third report. There is insufficient evidence to support a finding based on her observations of his personality style, or his propensity for volatility. I reject any criticism the expert makes about how the father handled the medical crisis involving [Y], as summarised in paragraph 1 of page 36 of the third report. Having heard extensive evidence about this event, in the context of those events and all the evidence in this case, I find it impossible to conclude that the way he behaved reflects adversely on his capacity to meet any of the children’s needs. The reality is that neither parent was performing optimally during this crisis and it is indeed hypocritical for the mother to criticise the father’s behaviour in this context.
Both the expert and the mother express concerns about how the father has sustained the litigation in relation to the children. These concerns could be framed as reflection on his capacity to meet the emotional needs of the children, or as an adverse reflection on his attitude to the responsibilities of parenthood. The mother made it very clear that she felt persecuted by the father’s almost constant litigation in relation to the children since 2005. The expert suggested that this reflects his personality style. When one steps back, however, and reflects on these concerns about the father, and indeed about the argument generally, one can only be mildly critical of the father. When the mother unilaterally relocated to [B] with the children it was her action that precipitated the father’s application. I can only infer that the mother, perhaps more than anyone else, knew the father well enough to know that litigation would inevitably follow. It is interesting to observe that this inevitability of litigation was clearly in the mother’s mind as she made critical, and indeed once again unilateral, decisions in relation to a child at [C] Hospital: events which precipitated the current litigation. It must almost be a maxim in family law that the parent who acts unilaterally after separation should not be surprised by the consequences. It follows, I believe, that likewise she cannot criticise the father for doing that which she precipitated. Viewed in this light the proceedings before Judicial Registrar Johnston, and then Justice Moore, were quite reasonable. The issues raised were genuine.
The appeal to the Full Court, and subsequent special leave application to the High Court, involved a genuine issue of law at that particular time in Australian family law. Perhaps another less determined parent will not have pursued the matter, but if one asks whether it was unreasonable, frivolous or vexatious to do so, the answer is clearly no.
As indicated above the current proceedings survived a Rice v Asplund application which was a thorough examination of the merits of the case at a prima facie level. At that time the significance of the events at [C] Hospital raised many serious questions that had to be determined in the present case.
When one steps back and considers the argument that a father’s pursuit of litigation in relation to his children reflects on his capacity to provide for their emotional needs, it is seen to be quite a problematic proposition. Is it the case, for example, that all parents who litigate are insensitive to the children’s emotional needs? Of course not. It all depends on the circumstances of the case. Indeed litigation may often be the very means to protect and preserve a child’s emotional needs. That’s what the father genuinely felt in this case. As it is I find he was misguided in his belief that the children needed protection from their mother, or that she was at fault for the tragedy that nearly befell [Y]. Nonetheless he genuinely believed this. It might not reflect well on him as a responsible parent when viewed in hindsight, but at the time his actions, ultimately manifesting in the present litigation, were not unreasonable.
Notwithstanding the above, I find that the father has failed to fully understand the impact on his children of the litigation, and that this only moderately reflects on his capacity to provide for their emotional needs. This is not a determinative consideration.
Lifestyle and background issues
The children enjoy what appears to be an almost idyllic lifestyle living in the country. They are surrounded by open spaces, good amenities, extended family, friends and a community. The children’s relationship with the maternal family seems very close. The mother is very closely attuned to this lifestyle. Her social and economic roots are on the family [property] in [B]. The father’s lifestyle is very different. His is a city lifestyle which offers different attractions. The children’s lifestyle with him would clearly be different. The children might be exposed to different and no doubt enriching cultural activities, some of which might not be so readily available in [B]. There are advantages and disadvantages to the country lifestyle available to the children on the mother’s proposal, and the city lifestyle available on the father’s proposal. The fact is, however, that currently the children enjoy both lifestyles – one with their mother, another with their father. It is not for me to make a value judgment about which is the better lifestyle. What is more pertinent is the impact on the change of this lifestyle for the children – a matter which I have already considered.
Attitudes to children and to responsibilities of parenthood
Both parents have demonstrated irresponsible parenthood through their inability to trust each other, and communicate with each other. They have both contributed to the chronic conflict that exists between them. Their irrational beliefs about each other show an immaturity as parents that is surprising for such high-functioning adults in other domains. Examples include the father’s irrational belief that the mother was responsible for what happened to [Y] and the mother’s appalling behaviour with the father at [Y]’s bedside. Each of these actions, and sadly many more, reveal an irresponsibility about the duties of parenthood that are truly disappointing for the children. This is sub-optimal parenting. Alas, these are the only cases that seem to come before the family law courts. This consideration is not determinative in this case.
Family violence
No matter how widely defined is the term family violence there is no evidence to justify a finding that the father has engaged in physical violence, or abused or harassed or intimidated the mother since the proceedings before Moore J. The mother may well have had subjective beliefs in this regard, but there is no objective basis for them on the evidence before me.
Orders least likely to lead to further proceedings
Having regard to the history of this case one would have to be reluctant to have any confidence about this consideration. I am not concerned about contravention applications, as there is no history of these. There is the risk of an appeal, or future applications to vary these orders. Perhaps making the orders I intend to make about the matter being relisted before me if practicable may help to manage the risk of future proceedings? The father, who has been the applicant in the litigation since 2005, must surely be conscious by now of the adverse impacts on his children, directly and indirectly, of continued litigation.
Equal time or substantial and significant time
The parents agree on equal shared parental responsibility. I had contemplated not making this order despite the parents’ agreement. However neither of the alternatives were better options. Sole parental responsibility would for either parent in this case be a licence to act arbitrarily. The statutory joint responsibility has proved ineffective in the past given the history of this case. Ultimately, it is in the best interests of the children that there be equal shared parental responsibility. I am prepared to make this order. This means, however, that I am then required to consider equal time or substantial and significant time for the purposes of s.65DAA.
Equal time is, in my opinion, neither in the best interests of the children, nor reasonably practicable. In this case the father will not move closer to the children in [B], and the mother will not move closer to the father and/or the children in Sydney. These are parameters the parents have themselves set for reasons which I accept. This means that equal time is not reasonably practicable for the purposes of s.65DAA(5)(a). In any event my findings about the parents mean that they do not have the capacity to implement an equal time arrangement, or to communicate with each other and resolve difficulties that might arise in implementing equal time. Thus s.65DAA(5)(b) and (c) contra-indicates equal time. In any event I find it is not in the best interests of the children to implement an equal time arrangement, even if it were reasonably practicable. For the reasons I have stated above in this judgment, an equal time arrangement would inevitably result in too much change and disruption for the children, particularly in terms of their relationships with their mother (s.60CC(3)(c)). Also I have doubts about the father’s capacity to meet the physical and emotional needs of his children (s.60CC(3)(f). Moreover the concerns I have about each parent’s attitude to the responsibilities of parenthood again contra-indicates equal time (s.60CC(3)(i)).
The father’s proposal is for substantial and significant time in Sydney. The mother’s proposal probably does not come within the definition of substantial and significant time in s.65DAA(3) because it provides so little opportunity for the father to spend time with the children on weekdays, in their weekday daily routines, and in their schooling.
The father’s proposal for the mother to have substantial and significant time is neither in the children’s best interests, nor is it reasonably practicable, having regard to the parameters the parents have set in this case, and which I accept are reasonable. The fact is the mother will not move to Sydney, even on a temporary basis, so it does not matter how innovative and flexible the father’s proposal is. The reality on the evidence is that the children would live in Sydney with the father and their contact with the mother will be limited to weekends and school holidays. This is not in the best interests of the children for the reasons I have previously articulated. In any event the father’s shared care proposal is just not reasonably practicable for the purposes of s.65DAA(5)(a), (b) and (c) again for reasons I have articulated.
The mother’s proposal probably suffers from not meeting the requirements of s.65DAA(3) as I have indicated above. If I am wrong, however, and it is a proposal for substantial and significant time, in the circumstances of this case it is both in the best interests of the children and as reasonably practicable as it can be. The fact is that, to date, both parents and the children have coped with travel and distance. The current arrangement has survived the parents’ inability to communicate constructively. They have been able to implement it satisfactorily.
Of course the mother’s proposal involves a reduction to the frequency of contact. This is a difficult issue. It was common ground that the current order is not sustainable into the future having regard to developmental stages the children will progress through. Even if I am wrong in interpreting the evidence on this point I find the current contact arrangement is not sustainable indefinitely. The current orders provide for up to 3 contact visits in a 4 weekly cycle, 2 in Sydney, 1 in Canberra. This means that there are 3 weekends each month when the children are away from home, away from their friends, and away from opportunities to participate in weekend extra-curricular activities. At age 8 and 6 I didn’t think this is an unmanageable arrangement for the children. By the time [X] turns 12, however, experience suggests that [X] will start to assert a normal developmental preference to spend time with her peers and engage in activities other than spending time with her father. Once [X] turns 12, I believe that the mother’s proposal for the reduction of contact becomes more realistic. [X] would have at least 2 weekends in 4 to plan her own activities. I recognise that this still limits, for example, her participation in regular weekend activities such as sport. As important as that consideration might be, it must be balanced against the importance of maintaining a strong relationship with the father.
I will not make any distinction between [X] and [Y] as regards the orders I propose. It would be impractical to do so. The children have a strong relationship between them, and to separate them one weekend a month is not, in my opinion, in their interest. Quite apart from their relationship with each other, separating them when they spend time with their father might give the impression of favouritism.
Thus I find that the mother’s proposal is both in the interests of the children and reasonably practicable, once [X] has turned 12. Before then, however, the current arrangement seems to represent what is in the best interests of the children, and is as reasonable practicable as it can be.
The conclusion is no different if the mother’s proposal does not in fact fall within s.65DAA(3). My conclusion is still what I consider to be in the best interests of the children.
Travel by air
The father’s proposal contains a provision for air travel between Canberra and Sydney. I invited the mother to submit a proposal for air travel after forming the impression in evidence that she might be open to this. I turn now the consider both proposals.
Whilst the father’s suggested regime for air travel was submitted in the context of the children primarily living with him, the basic principle is that either parent may cause the children to travel by a commercial airline from one parent to the other at the expense of the sending parent, whether that be sending the children to spend time, or sending the children home. The mother’s proposal is, in substance, the same even though the wording is quite different. In effect the parent who has the sending responsibility can decide whether to send them by air at that parent’s expense or do the driving themselves. I accept that the children are now old enough to undertake air travel. The parents are free to decide when, and under what circumstances, they send the children by air. There is no evidence before me about the policies of the relevant airlines in relation to unaccompanied travel of minors. The parents will need to have regard to this. I note that the journey by air is non-stop and is a relatively quick journey. I will make the necessary orders to implement travel by air at the option of the sending parent, and at the expense of the sending parent.
Orders
It is apparent from the reasons given that I believe it is in the best interest for the children to continue to reside with their mother on the family [property], and continue to have contact with their father up to three times in the four-week cycle until [X] turns 12, and then reverting to two weeks in a four week cycle.
The existing orders were framed at a time when the children were much younger. Thus, for example, the holiday contact with the father is limited to, in practical terms, no longer than one week in each of the relevant school holidays including the long Christmas holidays. It is implicit in the father’s proposal, and explicit in the mother’s proposal, that each of the school holidays should be shared equally. I agree that this is appropriate, and is in the best interests of the children, particularly having regard to their age and developmental stage.
The existing orders also contemplate the children returning on Sunday afternoons. I would like to give the father the option of returning the children on Monday mornings, if he wants to, provided the children are sent from Sydney dressed and ready for school, and provided that he personally takes them to school. I acknowledge that he has given me evidence that indicates that his Monday morning work commitments would make this difficult. Nonetheless, he has also given me evidence that in 2014 he may well leave his present position and go into consultancy which might offer him more flexibility. The obvious benefit to the children of the father returning them to school on the Monday morning is not just the additional time and interaction with them, but the opportunity he has to interact with the children’s school. However, I am only prepared to do this if he travels with the children by air to Canberra, the nearest airport, and not if he travels by car. To travel by car would involve getting the children up far too early on a Monday morning. I acknowledge that even air travel may involve an early start on a Monday morning, but if they are accompanied by their father, and he has the opportunity to attend with the children at their school, even occasionally, I think this benefit outweighs the disadvantage to the children. What I am not prepared to contemplate, however, is the father returning the children by air on Monday morning, and then not taking them to school, thus leaving the responsibility on the mother.
As I have indicated above, both parents contemplate air travel. Whilst the orders that they propose are slightly different in form, in substance they provide, and I so order, that whoever has the responsibility to deliver or collect pursuant to the orders will also have the option to have the children travel by air, at their expense, and subject to giving due notice.
The mother’s proposal is for contact on two weekends in a four-week cycle. As I have discussed in my reasons above, I believe that this is a realistic and developmentally appropriate outcome for the children, from when [X] turns 12 years old.
The existing orders provide for the mother to deliver the children to their father at his home in Sydney and collect them on weeks 1 and 3, and for the father to collect them from the mother’s home and return them in week 2. I see no reason to change this for the time being. The mother’s proposal, however, which sees a reduction of contact to two weekends in a four-week cycle, and which I accept once [X] turns 12, also suggests that the father be responsible for collecting and returning the children from the mother’s residence (and/or school as the case may be) on one of the two weekends in the four-week cycle. Given that this won’t start till 2014, I consider this to be an appropriate sharing of the travel arrangements, but particularly in view of the acceptance of air travel as an option.
Paragraph 8 of the father’s proposed orders refers to certain restrictions of the children’s activity whilst they are with their mother on the family [property]. There is some evidence about the basis of this in the father’s affidavits, but no time was given to it at the hearing, and I’m not satisfied that either the issues raised are so serious as to warrant the restrictions sought, or that the mother would not appropriately act to protect the children. I therefore decline to make proposed order 8.
Because of the difficulties that the parents have communicating, and the low levels of trust, it is in the best interests of the children that there be quite prescriptive orders about sharing and communicating information, consulting with each other, telephone communication and so forth.
As foreshadowed in my reasons above, I also consider it to be in the best interests of these children that any further litigation in relation to them be listed in the first instance before me, if possible. My hope is that by bringing the matter back before a judicial officer who is, by no, intimately acquainted with this case, it might expedite dealing with any further issues that arise. I also hope that it might make both parents feel that they will be more accountable for their actions, given that they may come before the same judicial officer who heard the present case. I have already acknowledged the possible limitations in making this order. Nonetheless, I am convinced that it is in the best interests of the children. In any event, the rights of the respective parents to ask for me to be disqualified is not affected by the making of this order
I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 15 September 2010
Schedule to Reasons
Minute of orders sought by mother
That the children [X] born [in] 2002 and [Y] born [in] 2004 live with the mother.
That during school terms, the children spend time with the father as follows:
2.1In the first week of the 4 week cycle in place prior to the date of these Orders, from Friday afternoon, the mother to collect the children from school and deliver them without delay to the father’s residence, until Sunday afternoon at 3-00pm, the mother to collect them from his residence.
2.2In the 3rd week of the 4 week cycle in place prior to the date of these Orders from Friday afternoon at 3-30pm until Monday morning before the commencement of school, the father to collect the children from the mother’s residence at the commencement of the time and to return them to [B] Public School at the conclusion of the time.
That the children spend the first half of each of the short school holidays with the father, the mother to collect the children from school and deliver them without delay to the father’s residence on the last day of school and the father to return the children to the mother’s residence at 6-30pm on the mid point of the holidays.
That during the Christmas school holidays the children spend time with the father as follows:
4.1For the first half of the holidays in 2010 and in each even numbered year thereafter, provided that the children spend the weekend before Christmas with the mother, from 6-30pm on Friday afternoon until
10-00am on Monday morning.
4.2For the purpose of Christmas holiday time in 2010 and each even numbered year thereafter, the mother will deliver the children to the father at 12noon at the commencement of time with him and the father will deliver the children to the mother at 12 noon at the midpoint of the school holidays.
4.3For the second half of the holidays in 2011 and in each odd numbered year thereafter, provided that the children spend the weekend before Christmas with the father, from 6-30pm on Friday afternoon until
10-00am on Monday morning.
4.4For the purpose of Christmas holiday time in 2011 and each odd numbered year thereafter, the mother will deliver the children to the father at 12 noon at the midpoint of the school holidays and the father will deliver the children to the mother at 12 noon on the day immediately before the first day of school term.
For the purpose of calculating the mid point of the holidays, school holidays will be taken to commence at 12 noon on the day after the last day of school term and end at 12 noon on the day immediately before the first day of school term.
For the purpose of Orders 4.1 and 4.3, where Christmas Eve or Christmas day falls on a Saturday or Sunday, the other parent will have time with the children on the weekend immediately before Christmas Eve or Christmas Day.
Each parent shall facilitate the children’s telephoning the other parent at any time the children wish to call.
Each parent shall be entitled to call the children by telephone between 6pm and 6-30pm on Tuesday and Thursday.
Mother’s Proposed Minute of Order in Respect of Air Travel
If the children:-
live with the mother in [B], on the weekends when:-
the father would otherwise collect the children from and return the children to the mother's residence in [B], he may elect to collect the children from Sydney Airport and return them to Sydney Airport provided all flights are to be organised by the father at his expense; and
the mother would otherwise deliver the children to and collect the children from the father's residence, she may elect to deliver the children to and collect the children from Canberra Airport provided that all flights are to be organised by the mother at her expense;
live with the father in Sydney, on the weekends when:-
the father would otherwise deliver the children to and collect the children from the mother's residence at [B], he may elect to deliver the children to and collect the children from Sydney Airport provided all flights are to be organised by the father at his expense; and
the mother would otherwise deliver the children to and collect the children from the father's residence, she may elect to deliver the children to and collect the children from Canberra Airport provided that all flights are to be organised by the mother at her expense;
with each of the mother and the father to facilitate the delivery of the children to and their collection from the Sydney or Canberra Airport as the case may be.
Minute of orders sought by father
That the Orders made on 17 May 2006 be set aside and discharged.
In the event that the mother gives the father written notice within 14 days of the date of these Orders of her election to live in a region defined within 25 kilometre radius of [T] School or be present within such region during the periods that the children would live with her pursuant to these Orders, then the following Orders are made:
2.1.The children, [X], born [in] 2002 and [Y], born [in] 2004 ("the children") live with the mother during school term from after school on Friday to the commencement of school the following Thursday each alternate week;
2.2.For one half of the NSW school holidays at the conclusion of school terms 1, 2 and 3, as agreed between the parties and if not agreed, the first half of the holidays in odd numbered years and the second half of the holidays in even numbered years;
2.3.For one half of the NSW Christmas school holidays, as agreed between the parties and if not agreed, the first half of the holidays in odd numbered years and the second half of the holidays in even numbered years;
2.4.And/or at other times agreed by the mother and father in writing;
2.5. On the day of the mother's birthday:
2.5.1.In the event the birthday falls on a day the children are at school, from the conclusion of school on the day of the mother's birthday until the commencement of school the following day, but if the children are not at school the following day, then until 9.00am;
2.5.2.In the event the birthday falls on a day the children are not at school, from 9.00am on the day of the mother's birthday until the commencement of school the following day, but if the children are not at school the following day, then until 9.00am;
2.6.From 9.00am on Mothers Day until the commencement of school the following day, but if the children are not at school the following day, then until 9.00am;
2.7. On the day of each of the children's birthday:
2.7.1.In the event the birthday falls on a day the children are at school, for 3 hours as agreed but if not agreed, from 3.00pm to 6.00pm;
2.7.2.In the event the birthday falls on a day the children are not at school, for 5 hours as agreed but if not agreed, from 3.00pm to 8.00pm;
2.8. The children shall otherwise live with the father.
That the periods the children live with the mother pursuant to Order 2 are suspended:
3.1.On Fathers Day from 9.00am until the commencement of school the following day, but if the children are not at school the following day, then until 9.00am;
3.2. On the day of the father's birthday:
3.2.1.In the event the birthday falls on a day the children are at school, from the conclusion of school on the day of the father's birthday until the commencement of school the following day, but if the children are not at school the following day, then until 9.00am;
3.2.2.In the event the birthday falls on a day the children are not at school, from 9.00am on the day of the father's birthday until the commencement of school the following day, but if the children are not at school the following day, then until 9.00am;
3.3. On the day of each of the children's birthday:
3.3.1.In the event the birthday falls on a day the children are at school, for 3 hours as agreed but if not agreed, from 3.00pm to 6.00pm;
3.3.2.In the event the birthday falls on a day the children are not at school, for 5 hours as agreed but if not agreed, from 3.00pm to 8.00pm.
That in the event that the mother does not make the election referred to in Order 2 then the children shall live with her for such part of the time as would have from time to time occurred pursuant to that order as she may choose provided that she shall furnish not less than 14 days notice in writing specifying periods that she so nominates that the children shall live with her and during school term she shall ensure that the children attend school in Sydney each school day and the provision of Order 3 shall apply.
That in the event either party is not available to care for the children for more than 48 hours at times pursuant to these Orders, then the first party must give the other party the first option to care for the children in the first party's absence.
That, for the purposes of facilitating changeover:
6.1.the mother collect the children from school (where applicable) or the father's residence at the commencement of any period in which the children are living or spending time with her;
6.2.where applicable, the mother deliver the children to school at the conclusion of any period the children have lived or spent time with her;
6.3.otherwise, the father collect the children from the mother at an address in the Sydney Metropolitan area;
6.4.that in the event that the provisions of Order 4 operate, then on such occasions as the mother may nominate for the children to spend weekend periods with her in [B], the father shall deliver or cause to be delivered the children to the mother’s residence on or before 7.00pm on the Friday evening (in absence of contrary agreement in writing) or, at his election, shall cause the children to travel to Canberra on a commercial airline where the mother shall collect them from the airport from a flight arriving at between 5.00pm and 7.00pm, the scheduled time to be notified by email 24 hours in advance. On such weekend occasions, the mother shall have the option of returning the children to Sydney to their school at the commencement of their school day on Monday (or earlier to the father if she chooses) or, notwithstanding the earlier provisions of these Orders, in the event that she should elect to return them to Sydney (at her expense) by commercial airline she may do so and the father shall collect them from the airport from a flight arriving not later than 7.00pm, the scheduled time of arrival to be advised by email on not less than 24 hours notice.
School holidays shall be deemed to commence on the last day the children attend school and conclude on the day the children resume school the following term and the party having the first half of the school holidays shall collect the children from school at the conclusion of the school day and the party having the second half of the school holidays shall return the children to school at the commencement of the first school date after the school holidays.
That in the event the mother takes the children to [B] or other [KLD] family property, she be restrained from:
8.1.Permitting the children to ride on vehicles unless properly secured with seatbelts;
8.2.Permitting the children to undertake any form of flying in light (or non-commercial) aircraft;
8.3.Permitting the children to be involved in any dangerous activities, including (without limiting the generality thereof) being in the vicinity of loaded firearms.
Both parties shall promptly keep the other informed (where possible, at least 5 days in advance) as to medical appointments or admissions or advice from medical professionals, school appointments and sporting activities.
That each party be restrained from enrolling the children in sporting or other extra-curricular activities which may take place in the other parent's contact time with the children unless the consent in writing of the other parent is first had and obtained.
Each party shall have telephone contact with the children (when they are not in that parent's care):
11.1.Each evening from 6.30pm to 7.00pm;
11.2.And the parent with whom the children are shall do all things reasonably within his or her power to ensure that such contact takes place without interruptions or distractions, including providing a telephone number at which the children can be contacted, if away from that party's residence.
That each party notify the other, as soon as possible and in any event within 6 hours, of any serious injury or illness suffered by the children or either of them whilst with that party.
That each party notify the other not more than 24 hours after any change to the address and/or landline and/or mobile telephone number and/or email address of that party.
That the mother pay the father's costs of and incidental to this application.
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