Sebastian and Sebastian

FAMILY COURT OF AUSTRALIA

SEBASTIAN & SEBASTIAN

[2012] FamCA 52

FAMILY LAW - CHILDREN - Parental responsibility – Parental conflict – Violence – Where the parents have a poor relationship – Where it would be in the children’s best interests for the mother to have sole parental responsibility for decisions about the children’s education – With whom the children live – With whom the children spend time – Where the parties are unable to communicate effectively - Where it would not be in the children’s best interests for them to be placed in an equal time parenting arrangement – Best interests – Where the children enjoy a close and loving relationship with each of their parents – Where it would be in the children’s best interests for them to live primarily with the mother and to spend as much time as is reasonably practicable and appropriate with the father.

Family Law Act 1975 (Cth) – Part VII; s 60B; s 60CA; s 60CC; s 60CC(2); s 60CC(3); s 60CC(4); s 61B; s 61C; s 61DA(1); s 61DA(2); s 61DA(4); s 65DAA(1); s 65DAA(2); s 65DAA(3); s 65AA

Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422;
MRR v GR (2010) 42 Fam LR 531

APPLICANT:

Mr Sebastian

RESPONDENT:

Ms Sebastian

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

6114

2009

DATE DELIVERED:

10 February 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

16, 17 & 18 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Friedlander

SOLICITOR FOR THE APPLICANT:

Rafton Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kenny

SOLICITOR FOR THE RESPONDENT:

Rowlandson & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ladopoulos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The following parenting orders are made in respect of the children K born … January 2007 and P born … May 2009 (“the children”).

Parental Responsibility

The parents have equal shared parental responsibility for the children except that the mother have sole parental responsibility concerning the children’s schooling, pre-school and attendance at day care;
Except in relation to the commencement of the 2012 school year, the mother notify the father of any proposed decisions regarding schooling, pre-school and attendance at day care in writing at least six weeks prior to making any decision about such and she shall take into account the father’s views before making a final decision.
In relation to the commencement of the 2012 school year, the mother is to have sole responsibility for enrolling the children at school and pre-school and she is to take account of the father’s views as expressed during the hearing of these proceedings.

Live With

That the children live with the mother.

Time with the Father

The children spend time with the father as follows:
(a)From the commencement of the 2012 school until P commences school:
(i)in all years ending in an even number:
a.each alternate weekend from after school/pre-school on Friday until before school/pre-school on Monday, commencing on the first weekend of the school term; and
b.each alternate week from after school/pre-school on Wednesday until before school/pre-school on Thursday, commencing on the second week of the school term; and
(ii)in all years ending in an odd number:
a.each alternate weekend from after school/pre-school on Friday until before school/pre-school on Monday, commencing on the second weekend of the school term; and
b.each alternate week from after school/pre-school on Wednesday until before school/pre-school on Thursday, commencing on the first week of the school term;
(iii)during the New South Wales school holiday periods at the end of terms 1, 2 and 3:
a.in all years ending in an even number, from after school/pre-school on the last school day of term until 6:00 pm on the second Saturday of the school holiday period;
b.in all years ending in an odd number, from 6:00 pm on the second Saturday of the school holiday period until before school/pre-school on the first day of the new school term;
c.during the New South Wales Christmas school holidays:
i.where the school holiday period commences in a year ending in an even number:
1.from 6:00 pm on 26 December until 6:00 pm on 2 January;
2.from 6:00 pm on 9 January until 6:00 pm on 16 January; and
ii.where the school holiday period commences in a year ending in an odd number:
1.from 6:00 pm on 24 December until 6:00 pm on 26 December;
2.from 6:00 pm on 2 January until 6:00 pm on 9 January; and
3.from 6:00 pm on 16 January until 6:00 pm on 23 January;
(b)Once P commences school:
(i) in all years ending in an even number:
a.each alternate weekend from after school/pre-school on Friday until before school/pre-school on Monday, commencing on the first weekend of the school term; and
b.each alternate week from after school/pre-school on Wednesday until before school/pre-school on Thursday, commencing on the second week of the school term; and
(ii)in all years ending in an odd number:
a.each alternate weekend from after school/pre-school on Friday until before school/pre-school on Monday, commencing on the second weekend of the school term; and
b.each alternate week from after school/pre-school on Wednesday until before school/pre-school on Thursday, commencing on the first week of the school term;
(iii)during the New South Wales school holiday periods at the end of terms 1, 2 and 3:
a.in all years ending in an even number, from after school/pre-school on the last school day of term until 6:00 pm on the second Saturday of the school holiday period;
b.in all years ending in an odd number, from 6:00 pm on the second Saturday of the school holiday period until before school/pre-school on the first day of the new school term;
(iv)during the New South Wales Christmas school holidays:
a.where the school holiday period commences in a year ending in an odd number, from 6:00 pm on 24 December until 6:00 pm on 10 January; and
b.where the school holiday period commences in a year ending in an even number:
i.from 6:00 pm on 23 December until 6:00 pm on 24 December; and
ii.from 6:00 pm on 10 January until 6:00 pm on 26 January;

Father’s Day

If the children are living with their mother on the weekend which includes Father's Day the children spend time with the father from 6:00 pm on the Saturday of that weekend until before school on Monday.

Mother’s Day

If the children are spending time with their father on the weekend which includes Mother's Day the time to be spent with the father on that weekend shall conclude at 6:00 pm on Saturday.

Communication

When the children are living with their mother, their father shall telephone the children between 6:30 pm and 7:00 pm on the following days:
(a)Each Tuesday and Thursday;
(b)On the birthday of each child;
(c)On the father's birthday;
(d)On Christmas Day.
When the children are spending time with their father, their mother shall telephone the children between 6:30 pm and 7:00 pm on the following days:
(a)Each Tuesday and Thursday;
(b)On the birthday of each child,
(c)On the mother's birthday;
(d)On Christmas Day.
The mother and the father shall ensure that the children are at liberty to telephone their other parent at such times as the children wish to do so.

Additional Time and Communication

In addition to the days and times set out in these orders the children shall spend time with and communicate with the father at such other or additional times as agreed by the mother and the father in writing.

Changeover

For the purpose of facilitating the time which the children shall spend with their father:
(a)If both children are attending school/pre-school at the time immediately before or after changeover time, changeover shall occur at the children's school/pre-school;
(b)If one child is attending school/pre-school at the time immediately before or after changeover time and the other is not, changeover shall occur at school/pre-school for the child who is at school/pre-school and at Sydney Suburb H Police Station at 3:30 pm for the other child;
(c)If neither child is attending school/pre-school at the time immediately before or after changeover time, then changeover shall occur at the Sydney Suburb H Police Station at 3:30 pm.

Education

The mother shall do all acts and sign all documents necessary to authorise any childcare centre, pre-school or school which the children are attending from time to time to provide the father with copies of all reports, circulars, notices and documents in relation to the children including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the father in relation to the children.

Medical Treatment

The mother and the father shall inform each other as soon as reasonably practicable if any child requires medical treatment from a doctor or if a child needs to be hospitalised while in the care of that parent and the mother and the father shall do all acts and sign all documents necessary to authorise the release of information and reports to the other parent from any medical practitioner or hospital as requested by that parent.

Parents’ Communication

The mother and the father notify each other of any change in telephone contact numbers, such notification to be made in writing and within 3 days of any change.
The mother and the father notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than 14 days prior to the proposed change.
For the purposes of communicating information concerning care of the children or issues relating to parental responsibility between the parents, the mother and the father shall:
(a)Communicate by telephone or text message for matters of an urgent nature;
(b)Otherwise communicate by use of a communication book which each parent shall ensure travels with the children at changeover.

Courtesy

The mother and the father:
(a)Be restrained from speaking about the other parent or the other parent's family or member of the other parent's household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children;
(b)Take all reasonable steps to prevent any other person from speaking about the other parent or the other parent's family or member of the other parent's household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.
The mother shall ensure that neither of her parents is present during any changeover including being within 50 metres of any changeover venue.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sabastian & Sabastian has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6114 of 2009

Mr Sebastian

Applicant

And

Ms Sebastian

Respondent

REASONS FOR JUDGMENT

These are final parenting proceedings.
K and P are 5 years of age and 2 years 9 months of age respectively. Their parents are Mr Sebastian and Ms Sebastian. For convenience I shall refer to the parents as “the father” and “the mother”.
The parents have been unable to agree on what final parenting arrangements will best serve the interests of their children. Accordingly, they have approached this Court to determine these matters for them.
The parties’ applications also sought orders in respect of their property. This was modest in value and to the parties’ credit, during the course of the proceedings, they resolved their property dispute. Orders have been made by consent with respect to the property.

Applications

The father seeks orders to the following effect:
·That the parents have equal shared parental responsibility for the children;
·That the children live with their father:
a)Each alternate week from the conclusion of school/pre-school on Wednesday until commencement of school/pre-school on the following Monday extending to commencement of school Tuesday where Monday is a public holiday;
b)Each other alternate week from the conclusion of school/pre-school Wednesday to the commencement of school/pre-school Friday extending to 6:00 pm Friday if Friday is a public holiday;
c)For not less than one half of each New South Wales school holiday period as agreed between the parties and failing agreement the first half in 2011 and each alternate year thereafter and the second half in 2012 and each alternate year thereafter;
d)From 3:00 pm Christmas Eve until 3:00 pm Christmas Day in 2011 and each alternate year thereafter and from 3:00 pm Christmas Day until 3:00 pm Boxing Day in 2012 and each alternate year thereafter;
e)On the birthday of each child and of the father for a period as agreed and failing agreement, if a non-school day from 1:00 pm until 6:00 pm and if a school day from conclusion of school until 7:00 pm;
f)On the Father’s Day weekend each year from 6:00 pm Saturday until the commencement of school Monday;
g)If Mother’s Day falls on a weekend when the father would be living with the children his period for that weekend shall conclude at 6:00 pm Saturday;
h)Where Easter does not fall within the New South Wales school holiday periods from 3:00 pm Easter Thursday until 9:00 am Easter Tuesday in 2012 and each alternate year thereafter; and
i)At such other times as agreed.
·That the children shall live with their mother at all other times;
·That the mother facilitate telephone communication between the children and their father each evening when the children are in their mother’s care between 7:00 pm and 7:30 pm with a reciprocal arrangement when the children are in the father’s care;
·Changeovers to be at school/pre-school and during holidays at Sydney Suburb H McDonald’s Family Restaurant;
·The mother to ensure that her parents are not present during any changeover; and
·Orders in relation to enrolment of the children in school/pre-school, other educational matters, their medical care and keeping one another informed about residential addresses and telephone numbers.
The Independent Children’s Lawyer (“ICL”) seeks orders to the following effect:
·The parents have equal shared parental responsibility for the children except that the mother have sole parental responsibility concerning the children’s schooling, pre-school and attendance at day care;
·The mother notify the father of any proposed decisions regarding schooling, pre-school and attendance at day care in writing at least six weeks prior to making any decision about such and she shall take into account the father’s views before making a final decision.
·The children live with the mother.
·The children spend time with the father as follows:
(a)From the commencement of the 2012 school until P commences school:
(i)in all years ending in an even number (eg. 2012):
c.each alternate weekend from after school/pre-school on Friday until before school/pre-school on Monday, commencing on the first weekend of the school term; and
d.each alternate week from after school/pre-school on Wednesday until before school/pre-school on Thursday, commencing on the second week of the school term; and
(ii)in all years ending in an odd number (eg. 2013):
c.each alternate weekend from after school/pre-school on Friday until before school/pre-school on Monday, commencing on the second weekend of the school term; and
d.each alternate week from after school/pre-school on Wednesday until before school/pre-school on Thursday, commencing on the first week of the school term;
(iii)during the New South Wales school holiday periods at the end of terms 1, 2 and 3:
e.in all years ending in an even number (eg. 2012), from after school/pre-school on the last school day of term until 6:00 pm on the second Saturday of the school holiday period;
f.in all years ending in an odd number (eg. 2013), from 6:00 pm on the second Saturday of the school holiday period until before school/pre-school on the first day of the new school term;
g.during the New South Wales Christmas school holidays:
i.where the school holiday period commences in a year ending in an even number (eg. 2012):
1.from 6:00 pm on 26 December until 6:00 pm on 2 January;
2.from 6:00 pm on 9 January until 6:00 pm on 16 January; and
ii.where the school holiday period commences in a year ending in an odd number (eg. 2013):
4.from 6:00 pm on 24 December until 6:00 pm on 26 December;
5.from 6:00 pm on 2 January until 6:00 pm on 9 January; and
6.from 6:00 pm on 16 January until 6:00 pm on 23 January;
(b)Once P commences school:
(i)       in all years ending in an even number (eg. 2012):
c.each alternate weekend from after school/pre-school on Friday until before school/pre-school on Monday, commencing on the first weekend of the school term; and
d.each alternate week from after school/pre-school on Wednesday until before school/pre-school on Thursday, commencing on the second week of the school term; and
(ii)     in all years ending in an odd number (eg. 2013):
c.each alternate weekend from after school/pre-school on Friday until before school/pre-school on Monday, commencing on the second weekend of the school term; and
d.each alternate week from after school/pre-school on Wednesday until before school/pre-school on Thursday, commencing on the first week of the school term;
(iii)during the New South Wales school holiday periods at the end of terms 1, 2 and 3:
a.in all years ending in an even number (eg. 2012), from after school/pre-school on the last school day of term until 6:00 pm on the second Saturday of the school holiday period;
b.in all years ending in an odd number (eg. 2013), from 6:00 pm on the second Saturday of the school holiday period until before school/pre-school on the first day of the new school term;
(iv)during the New South Wales Christmas school holidays:
a.where the school holiday period commences in a year ending in an odd number (eg. 2013), from 6:00 pm on 24 December until 6:00 pm on 10 January; and
b.where the school holiday period commences in a year ending in an even number (eg. 2012):
i.from 6:00 pm on 23 December until 6:00 pm on 24 December; and
ii.from 6:00 pm on 10 January until 6:00 pm on 26 January;
·If the children are living with their mother on the weekend which includes Father's Day the children spend time with their father from 6:00 pm on the Saturday of that weekend until before school on Monday.
·If the children are spending time with their father on the weekend which includes Mother's Day the time to be spent with their father on that weekend shall conclude at 6:00 pm on Saturday.
·When the children are living with their mother, their father shall telephone the children between 6:30 pm and 7:00 pm on the following days:
(a)      Each Tuesday and Thursday;
(b)      On the birthday of each child;
(c)      On the father's birthday;
(d)      On Christmas Day.
·When the children are spending time with their father, their mother shall telephone the children between 6:30 pm and 7:00 pm on the following days:
(a)      Each Tuesday and Thursday;
(b)      On the birthday of each child,
(c)      On the mother's birthday;
(d)      On Christmas Day.
·The mother and the father shall ensure that the children are at liberty to telephone their other parent at such times as the children wish to do so.
·In addition to the days and times set out in these orders the children shall spend time with and communicate with the father at such other or additional times as agreed by the mother and the father in writing.
·For the purpose of facilitating the time which the children shall spend with their father:
(a)If both children are attending school/pre-school at the time immediately before or after changeover time, changeover shall occur at the children's school/pre-school;
(b)If one child is attending school/pre-school at the time immediately before or after changeover time and the other is not, changeover shall occur at school/pre-school for the child who is at school/pre-school and at Sydney Suburb H Police Station at 3:30 pm for the other child;
(c)If neither child is attending school/pre-school at the time immediately before or after changeover time, then changeover shall occur at the Sydney Suburb H Police Station at 3:30 pm.
·The mother shall do all acts and sign all documents necessary to authorise any childcare centre, pre-school or school which the children are attending from time to time to provide the father with copies of all reports, circulars, notices and documents in relation to the children including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the father in relation to the children.
·The mother and the father shall inform each other as soon as reasonably practicable if any child requires medical treatment from a doctor or if a child needs to be hospitalised while in the care of that parent and the mother and the father shall do all acts and sign all documents necessary to authorise the release of information and reports to the other parent from any medical practitioner or hospital as requested by that parent.
·The mother and the father notify each other of any change in telephone contact numbers, such notification to be made in writing and within 3 days of any change.
·The mother and the father notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than 14 days prior to the proposed change.
·For the purposes of communicating information concerning care of the children or issues relating to parental responsibility between the parents, the mother and the father shall:
(a)Communicate by telephone or text message for matters of an urgent nature;
(b)Otherwise communicate by use of a communication book which each parent shall ensure travels with the children at changeover.
·The mother and the father:
(a)Be restrained from speaking about the other parent or the other parent's family or member of the other parent's household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children;
(b)Take all reasonable steps to prevent any other person from speaking about the other parent or the other parent's family or member of the other parent's household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.

The mother seeks orders to the same effect as those sought by the ICL as set out above.

Background

The father was born in 1974. The mother was born in 1976. The parties commenced cohabiting upon their marriage in February 1999. They separated in October 2009.
There are two children of the marriage. They are K born in January 2007 who is 5 years of age and P born in May 2009 who is 2 years 9 months of age.
The mother worked on a full time basis in a trade until K’s birth. She took maternity leave for approximately six months and then returned to work on a part-time basis. The father was working full time.
Upon separation the mother left the former matrimonial home at Sydney Suburb H with the children and commenced residing with her parents at Sydney Suburb L. Arrangements were made for the children to live with the mother and spend regular time with the father.
On 15 November 2009 the father informed the mother that he was taking K to hospital with a suspected spider bite. He returned the children to their mother later that evening.
On 29 November 2009, K returned to his mother’s care, following time with his father, manifesting sunburn to most of his body and with wet pants.
By December 2009 the arrangements for the children were breaking down. The father had care of K, but not P, on the weekend of 12 and 13 December 2009. The mother said that P was sick. On 14 December 2009, the mother complained to police about the father harassing her with text messages, phone calls and emails. After that time the mother did not make the children available to spend time with their father until Christmas Day 2009.
On 18 December the mother sent an email to the father’s parents asking them to sign a document to the effect that they would accept responsibility for the children on Christmas Day and that they would return them to the mother by 3:30 pm on Christmas Day.
Understandably, the father’s parents were deeply hurt by this request and it would appear to have contributed to the very poor relationship between the parents. The mother said that her solicitor advised her to request the signed document.
The father filed his Initiating Application on 24 December 2009.
On Christmas Day 2009 the mother delivered the children to the home of the father’s parents at Town R. A short time later the father took K to the former matrimonial home to obtain some formula for P. When he arrived at the home he found the mother and her father removing items of property from the home. The parties’ explanations about what subsequently occurred differ.
The father said that he was struck on the arm with an iron bar by the maternal grandfather in view of K and that K was shaken and distressed and started to cry.
The mother said that she and her father went to the former matrimonial home to collect some of her belongings and some of the children’s belongings. She said that her father broke the chain latch on the front door with a metal bar, then they entered the home and began to collect her belongings. She said that the father came home and an argument started between them. Her father called the police who attended the home. The mother said that her father placed a metal bar over a window or opening of the car to prevent the father from taking any belongings from inside the car and that the father was accidently hit in that process.
The mother’s father, Mr Y said that he was at the rear door of the 4 wheel drive vehicle and as the father came up to him he picked up a pinch bar and put it between the door jambs of the vehicle to try and prevent the father removing things from the vehicle. He said that during that process the father pushed but could not get past the pinch bar and hit his arm on it.
This was a different account from that recorded in the police notes of the incident. The police notes recorded that Mr Y had informed the police that he had picked up the pinch bar to protect himself from the father as the father’s anger was escalating. The notes also recorded that the father stepped forward and using his right arm lifted his arm upward making contact with Mr Y’s arm holding the pinch bar in an attempt to dislodge the pinch bar and in taking this action the father’s arm sustained a red mark.
I must say, it might well be that these accounts by Mr Y are not inconsistent but rather that the explanation about the differences might be in a full account not having been given to either the police or to this Court.
In any event, the father did not return the children to their mother that day as had been arranged. The father said that this was as a result of K being shaken and distressed.
From 25 December 2009 until 15 January 2010, the children remained with the father and spent no time with the mother. The father said that he sent various messages to the mother in an endeavour to discuss with her arrangements for the children. He said that he received no response from her.
The mother said that she did not respond because all the father offered was for her to see the children for a 30 minute period in a public place. The mother said that she was concerned about the impact which such a short time might have on the children. And she said that she was concerned that if the children were permitted to come into her care only for such a very short period, she might not be able to resist the temptation to “pick up the kids and run”.
The father also offered to discuss with her an arrangement whereby she could speak with K on the phone. The mother said that she thought this would involve harassment of her by the father. In any event she said that K was only 2 years old at the time and not very good on the phone.
On 13 January 2010, an interim AVO was made against the father at Local Court for the protection of the mother.
On 14 January 2010, interim parenting orders were made by consent providing in effect for the children to spend a total of six nights per fortnight with their father and eight nights per fortnight with their mother. The mother said that she did not consider it to be in the children’s interests to spend so much time away from her but thought that this was the only way she would be able to restore the children to her care.
The orders provided that the children were to be delivered to their mother between 8am and 8:30am the following day 15 January 2010. The children did not come into their mother’s care until later that day. The father said that he was not sure about what the orders required because of some uncertainty in his communication with his solicitor and the fact that a sealed copy of the orders had not been served on him.
Then the children spent 20-22 January and 23-25 January 2010 in their father’s care.
The father said that, on 27 January 2010, the mother did not deliver the children for collection by him in accordance with the orders made on 14 January 2010. The mother said that she and her father drove to McDonald’s at Sydney Suburb H for changeover and that the father was not there. After waiting for fifteen minutes, the mother then drove to Z Day Care Centre at Sydney Suburb H, assuming that the father’s absence meant that he had enrolled the children in day care. When the mother arrived at the Day Care Centre, she was told that the children had not been enrolled. The mother then asked her father to take the children back to his house and she went to work.
On 29 January 2010 two police officers attended the mother’s home and asked to see the children. They informed the mother that they were responding to an expression of concern about the welfare of the children by their father.
In February 2010, P commenced child care at Z Day Care Centre two days per week.
On 12 March 2010, the mother filed a Response to Initiating Application in which she sought a substantial reduction in the time the children would be in their father’s care. This application was before the Court on 15 March 2010 but did not proceed.
In approximately April 2010, the Sydney Suburb H property was sold. The father moved to reside at a rented home at Town R in which he continues to reside.
In June 2010, a final AVO was made against the father at Local Court for a period of three months.
On 4 October 2010, the parties had an argument at changeover about the father’s proposed holiday with the children. The mother said that she wanted information about where the children were going and where they would be staying. She said that the father refused to provide her with any such details and that he pushed her. She said that she stumbled backwards.
On 21 October 2010, as a consequence of the events that occurred at changeover on 4 October 2010, the police applied for an AVO against the mother for the protection of P and the father. I note that this was dismissed when it went to court in April 2011.
In October 2010, the mother said that she was being continually harassed by the father in relation to her not disclosing her address to him. At the changeover on 22 October 2010, the mother’s parents attended after the mother expressed concern to her father about the harassment. The parties had an argument about the mother not revealing her address and the father refused to return the children to her. The mother said that the father drove out of the service station next to McDonald’s at speed with tyres screeching and the children in the vehicle. The mother went to Sydney Suburb H Police Station and the father eventually delivered the children to her at the Police Station at approximately 6:30 pm.
On 12 November 2010, a further most unfortunate incident occurred at changeover at McDonald’s. I have observed a video recording of this incident. It reflects poorly on both parents and I accept that the children were most distressed by the disgraceful behaviour of their parents. The mother alleged that the father threatened to take out an AVO and to kill her. I shall refer to this matter again below.
On 1 December 2010, the children commenced day care at F Day Care Centre two days per week. This was arranged by the father without consultation with the mother. I shall also refer to this matter again below.
On 25 January 2011, P fell over in her maternal grandparents’ back yard and hit her head on a terracotta pot. She suffered an injury to her forehead which required stitches under general anaesthetic. She spent approximately twelve hours in hospital. The mother did not inform the father about this serious injury until the following day.
On 8 February 2011, the mother was grocery shopping with the children. She had been told by staff at the day care centre that P had been biting other children. She said that during the shopping trip, P bit K. In response, the mother bit P on the arm. She said that P laughed and she bit her again. The mother said that she was attempting to discipline P and did not intend to injure her. The father later reported the incident to the police and the mother was charged with assault occasioning actual bodily harm. The matter was heard at Local Court and the charges were dismissed.
On 12 March 2011 K fell off the balcony at the mother’s home. He suffered a cut to his chin and some bruising and grazing. The mother took him to hospital and the laceration was stitched. Once again, the mother failed to notify the father of this injury and hospitalisation until after the event.
On 18 April 2011, I made interim orders by consent which provided for changeovers to occur at Sydney Suburb H Police Station, that the maternal grandfather not be present during changeovers and that the mother facilitate phone calls between the children and the father between 7.00 pm and 7.30 pm. The parties were also restrained from discussing the proceedings with the children and from physically disciplining the children. An Independent Children’s Lawyer was appointed at this time.
On 26 May 2011, I made orders to the effect that each of the parents make enquiries about possible schools for the enrolment of K for 2012 and that a Family Report be prepared.
On 21 July 2011, the Family Report was released to the parties.

Credit

Although there are not major differences between the parties about most of the relevant facts in these proceedings, in my view, it is appropriate to make some observations about the credit of the witnesses.

The father

The father had difficulty on many occasions providing responsive answers to questions during cross-examination. This left me with the impression that he felt the need frequently to expand on his answers in a way which was probably perceived by him to favour his case. The father readily made concessions. He demonstrated a good recollection of events and command of the detail. Generally I regard him as a witness of the truth. My only reservation was that there were some issues, such as in what circumstances the iron bar of the mother’s father hit the father, where the evidence of each of the parties could not be reconciled. I found myself unable to be satisfied about the likely correctness of one version as distinct from the other.

The mother

The mother answered questions in a responsive manner. Like the father, the mother also readily made concessions. Generally I thought the mother was a witness of the truth.

The mother’s father

I had the sense that the mother’s father was a person who holds his views strongly. He gave his evidence in a rather matter of fact way although he was very supportive of his daughter.
He made concessions. I regard Mr Y as a witness of truth. In relation to the iron bar incident I am inclined to accept his version as being the most likely account of this.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act. The objects in this context are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·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
·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
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that 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.
Section 61DA(2) of the Act provides in effect that 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 abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that 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 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 first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.
I shall discuss this matter below. But before doing so, I propose to consider the relevant matters pursuant to s 60CC of the Act.

Section 60CC Considerations

How the Court is to go about determining what is in the children’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the children of having a meaningful relationship with both of their parents; and
·The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Additional Considerations – s 60CC(3)

The additional considerations are set out in s 60CC(3) of the Act. Those relevant in the present proceedings are as follows.

Sub-section 60CC(3)(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

These children are very young and I am not aware that any particular views have been expressed by them. In any event, even if views were expressed one way or the other, the Court would give no weight to such views because of the children’s young ages.

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

The father said that, before the parties separated, he was primarily responsible for the care of the children each week from Tuesday night to Friday morning.

He said that when the mother returned to part time work after the birth of K, she worked on Wednesdays and Thursdays from 9:00 am to 9:00 pm. The father said that before P’s birth in May 2009, he was responsible for collecting K from day care on Wednesdays and Thursdays. He said that he took him home between 3:30 pm and 5:00 pm, bathed him, cooked dinner, fed him dinner and put him to bed.
When P was approximately three months old, the mother returned to this same part time work schedule. The father then collected both K and P from day care on Wednesdays and Thursdays. He said he took the children home, bathed them, prepared dinner and put the children to bed.
The father said that he took the children to the park or to his parents’ house on weekends when the mother was working from home.
The mother disagreed that the father was primarily responsible for the care of the children each week from Tuesday night to Friday morning. She said that she did not work on Tuesdays, and so had primary care of the children, and that she took the children to day care on Wednesday mornings. She said that the father was primarily responsible for the children from the time he picked them up on Wednesday afternoon and on Thursdays while she was at work.
The father said that he undertook all the cooking during the parties’ relationship. He also said that if the mother was responsible for dinner, she would buy take away food.
At the time of final hearing, the parenting arrangements were in accordance with the orders dated 14 January 2010 as varied by the orders of 18 April 2011. Accordingly, the children were in the father’s care from 8:00 am Wednesday until 8:00 am Friday each week and from 8:00 am – 8:30 am Saturday until 8:00 am – 8:30 am Monday each alternate week. They lived with their mother at all other times.
In my view the mother’s assertion that she was primary caregiver to the children was probably correct during the period prior to separation. But it is clear that the father was closely involved in the care of the children and solely responsible for them during significant periods of time, given the mother’s work schedule. But this position has changed since separation and clearly the parents have shared the parenting responsibilities over the last couple of years.
In any event, a very positive aspect of these proceedings is that each of the children has a close and loving relationship with each of their parents.
The Family Consultant said that both children appeared to have positive and established relationships with each of their parents and that they appeared relaxed and comfortable with each of them. During her cross-examination the Consultant said that each of the children has a strong attachment to each of their parents and that she would be unable to say that they were more closely attached to one as against the other.
It is not clear to me what relationship the children have with the mother’s boyfriend Mr M. Mr M stays at the mother’s home two or three nights per week and otherwise lives with his parents. He has a 10 year old son by a previous relationship. Mr M has a criminal record having been convicted of larceny in 2002.

Sub-section 60CC(3)(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

The father informed the Family Consultant that he had promoted the children’s relationship with their mother. In this regard he had advised that K had said that he had not wanted to go to his mother’s home but the father reassured the child that he would be returning on Saturday. The father also said that he tells the children that he loves their mother. He said that he has placed photographs of her in the children’s bedrooms. The father said that he has brought about a situation where K understands that it is acceptable to talk about his mother in his father’s household. The father also said that he has gained a lot from attending post separation parenting groups.
The father said that the children’s mother would be unlikely to promote his relationship with the children if the children were primarily with her.
I must say I am somewhat guarded about the capacity and willingness of each of the parents to be able to facilitate and encourage a close relationship between the children and the other parent. In my view, they both have a poor track record in this regard.
As indicated above, unfortunately, there have been many occasions where, despite current court orders being very clear about what the parents’ respective obligations were, each of them has taken the view that the presenting circumstances somehow justified them in flouting the court orders. Many of these instances are referred to above.
To the mother’s credit, at least recently, she conceded that her performance so far as complying with the court orders could have been a lot better than it has been over the last couple of years. Whether this realisation translates into significant improvement in this regard in the future remains to be seen. The mother assures the Court that she has seen the error of her ways so that the Court could be confident that in the future she would comply with all Court orders.
Unfortunately the history of the parties’ relationship since separation has been such that the urge to satisfy their own needs to press their respective points of view has rarely given way to the greater need of prioritising the children’s needs. This was commented on by the Family Consultant who said that it is likely that in the absence of any significant and sustained changes by the parties, conflict between them about the children will continue. She said that it is likely that the children will continue to be exposed to conflict and that this will be likely to have a detrimental impact on their well-being. The Consultant said that although each of the parents was able to acknowledge the importance of the other to the children, they appeared to have difficulty in prioritising the children’s needs above their own conflict. The Consultant observed that therefore it would be likely that ongoing conflict between them would have a detrimental impact on their willingness to appropriately promote the children’s relationship with the other parent.
In my view, this is a most worrying aspect about their relationship.

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

The Family Consultant expressed the opinion that any parenting arrangement which did not allow the children to have an appropriate relationship with the other parent could well lead to emotional difficulties for the children.

Sub-section 60CC(3)(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.

The parties live approximately 30 kilometres apart so this is a practical consideration. Under the current arrangements there has been quite an amount of travelling for the children. But the distance between parents is not such that it would stand in the way of the Court being able to develop appropriate arrangements for the children to be able to have full opportunity to maintain and develop their relationships with each of their parents.
Having said this, it would be helpful to endeavour to reduce the number of changeovers as much as possible.

Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and 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.

It is clear that the mother was at a low ebb emotionally after separation. She said that she was incapable of making important decisions at that time. This was confirmed by her father. So the mother gave a power of attorney to her father to enable him to make decisions on her behalf including in relation to the parenting arrangements for the children.
The mother said that her capacity for making decisions about the children significantly improved after the father returned the children to her in mid-January 2010. The mother said that she thought her difficulties about decision-making had come about as a consequence of what she described as constant harassment of her by the father.
The very considerable volume of text and email messages by the father to the mother and the numerous ongoing complaints to police by the father about the mother lend considerable support to the mother’s assertions in this regard.
In my view, there have been many shortcomings in terms of the mother’s parenting of the children. Her inability to protect the children from the conflict between herself and their father has been a serious parenting deficiency.
There must be some concern about her supervision of the children during the times when each of them sustained lacerations which required hospitalisation and stitching. But more worrying still was the mother’s failure to notify the father without undue delay about these matters.
The biting of P incident reflects poorly on the mother’s impulse control and her parenting capacity. She said that she was “very regretful” about this and said that she would use very different means to discipline the children now. She said that having completed a parenting course she has learnt important information about positive parenting, rewarding good behaviour and dealing in appropriate ways with bad behaviour, such as quiet time. The mother said that the children have responded well to her recent strategies in this regard.
On the other hand the father has also demonstrated serious deficiencies in terms of his parenting proficiency. Like the mother, he has been unable to protect the children from the conflict and violence between the parents. And, like the mother, he has been unable on many occasions to comply with the court orders. As indicated above, on many occasions he has been unable to check his need for apparent vengeance against the mother in favour of the much more important need to protect the children from conflict between their parents.
The Family Consultant referred to occasions when each of the parents had unilaterally decided to stop the children spending time with, or communicating with, the other. She said that the parents both appeared to have a limited insight into the potential impact of this on the children and their relationships with the other parent and they both appeared to believe that their actions were justified. The Family Consultant did however agree that the fact that in December / January 2009 the mother refrained from seeing the children after their father had retained them at Christmas 2009 was an example of the mother putting the needs of the children ahead of her own needs. This was in the sense that the mother had indicated that she thought to spend only 30 minutes as offered by the father would be very difficult for the children and, as indicated above, the mother was also concerned that she might not be able to contain her own urge to run away with the children. I accept this.
In relation to the impact of the conflict on the children, the Family Consultant said that the mother had demonstrated some insight into this but the father indicated no understanding of such impact on the children, although he had indicated a willingness to attend mediation.
With respect, I think the Family Consultant has measured this accurately. I say this because it accords with my own experience during the course of the hearing. I had the feeling that the mother was better able to reflect on the consequences for the children of various of the behaviours of the parents. I endeavoured to gain a sense of this by offering the father an opportunity during the hearing to reflect on his behaviour following the mother informing him that she had bitten P. He was unable to appreciate that by deciding to involve the police he brought about some negative consequences for the children particularly by exposing K to an interview by the police in the Joint Investigative Response Team. At this time the father gave me the impression that he was unable to see beyond his own need to punish the mother for her improper behaviour towards the child so that the adverse consequences the police activity might have on K simply did not occur to him. To be fair to the father, however, he did say that had he had more time to consider whether to involve K in the police interview he would have declined to do so. But I rather sense that the fundamental point I was endeavouring to raise with him was largely lost to him.
In terms of the parents’ overall capacities for parenting, the view of the Family Consultant was, that upon her observations of the behaviour of the respective parents with the children in the play sessions which she observed, she thought that the mother was more “in tune and sensitive to K’s cues and her responses to him appeared consistently appropriate to his apparent developmental level.”. In relation to the father, the Family Consultant said “[The father] generally presented as in tune and sensitive to K’s cues however he appeared focused on K playing a game about dinner despite K’s apparent reluctance to join in.” The Consultant went on to say that as nutrition had been raised in the proceedings as an area of some concern, it might be that the father was trying to emphasise to the Consultant that he provided the children with appropriate meals. The Consultant said that nevertheless this raised concern regarding the father’s ability to consistently respond to the children in a sensitive and “in tune” manner.

Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

Unfortunately there are deficiencies on the part of each of the parents in respect of these matters. Each of the parents has a poor attitude towards the other. They are both well aware that conflict between them is not in the interests of the children. In fact each of them conceded that the conflict has been affecting the children adversely. Yet without assistance, such as providing for changeovers to be at the Sydney Suburb H Police Station, they appear to have been powerless to have been able to act responsibly as parents by not indulging themselves in the conflict.
It is unnecessary to refer in detail to each of the incidents involving conflict and violence between them, and distress caused by this to the children. The incident at the service station on 12 November 2010 was particularly serious. It continued over some 15 or 20 minutes and only moved outside the confines of the shop at the service station when the parties were ordered out of the premises by the service station officials. This was a serious loss of control and responsible behaviour by each of the parents.
The many transgressions by each of the parties from the requirements of the Court orders are also troubling. This is because the whole purpose of the orders was to endeavour to bring order and peacefulness to the lives of the children. Such deliberate and regular failures by each of the parties to observe the requirements of the court orders reflects poorly on their attitude to the children and to their responsibilities as parents.

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

As indicated above, regrettably this is a case which has involved ongoing conflict including some family violence and failure by the parents to ensure that their behaviour would not cause distress to the children.

Sub-section 60CC(3)(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

Unfortunately these parties have been litigating over many years. Even the requirements of the law, as reflected in the Court orders put in place to endeavour to serve the requirements of their family circumstances, have been insufficient to bring an end to the litigation. The orders which I propose should eliminate some of the scope which might otherwise be available for litigation. But given the history of the matter, no package of orders which I can think of would be any guarantee that the children would not become further mired in litigation between their parents.

Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

The Family Consultant said that because of P’s young age, in order for her to develop an appropriate relationship with a non-residence parent, she ought to see that parent at least once per week. But the Consultant also said that if this could only be achieved at the risk of continuing conflict between the parents, then minimising the opportunity for conflict between the parents was more important to her interests than to slavishly persevere with such a regime.

Sub-section 60CC(4) – extent to which each parent has fulfilled or failed to fulfil parental responsibilities

I have considered most of the matters referred to in this legislative provision in my above reasons. But I note at this point that amongst the relevant considerations is the extent to which a parent has fulfilled his or her obligations to maintain the children.
The father has failed to pay any child support to the mother. He has been assessed to pay child support at the highest rate under the formula. Apparently this is as a consequence of the father not having lodged income tax returns for some years. It was submitted that the father has been reluctant to pay at the highest rate and that he has been endeavouring to resolve this matter with the Child Support Registrar.
The difficulty with this is that the mother would appear to be in need of child support, her income being modest, consisting of income from her part-time work and government assistance.
In my view, the father’s approach to this matter has been inconsistent with what would be expected of a responsible parent.

Should there be equal shared parental responsibility?

These parties have a very poor relationship. Since separation, and perhaps until recently, their relationship has been characterised by a barrage of text messages and emails by the father to the mother on the one hand, and virtually a wall of silence by the mother towards the father on the other hand. When they have come into direct contact, such as during changeovers of care of the children, frequently such occasions have been characterised by verbal abuse, insults, threats and considerable conflict even to the point of physical violence.
The parents have had considerable difficulty agreeing about any matter at all in relation to the children. It is the case that the mother agreed to the making of consent orders on 14 January 2010. But she said that she did this at a time when she had not seen the children for approximately twenty days and was desperate to see them. She said that she did not agree with the provisions in those orders but she was worried that if she did not agree with them that it would be even longer before she saw the children. Within a short time of the making of those orders the mother was endeavouring to have the orders changed.
The mother is seeking the sole parental responsibility for making decisions about the children’s education including child care for P. It is the case that the parties’ arrangements for the children to attend the Z Day Care Centre at Sydney Suburb H broke down. They had been enrolled at that day care centre for quite some time. Ultimately, the father changed the children’s enrolment to the F Day Care Centre at Town R for the days when they were in his care. As indicated above, this was done without consultation with the mother. The father said that he did not consult her about this because he did not think she cared which day care centre the children attended during periods when they were with him. He said that he had this view because he had previously received a text message from the mother to the effect that she did not mind what he did with the children during periods when they were in his care.

I note that on the records of F Day Care Centre the father did not enter the mother as the emergency contact person in relation to the children. Instead he entered details of a member of his family. And on numerous occasions at the changeover of the children the father recorded his conversations with the mother. He said that he did this in order to protect himself.
As indicated above, in January and March 2011, when the mother found it necessary to take one or other of the children to hospital for lacerations to be stitched, she failed to inform their father of these injuries with the consequence that he had no opportunity for involvement in the decisions about their medical treatment.
As also indicated above, on numerous occasions one or other of the parents has involved the police in their complaints about the behaviour of the other.
None of these matters inspire confidence that the parents would be able to co-operate in responsible decision making about arrangements for the children’s education.
The parents have been unable to agree on a school and day care centre for the children’s enrolment from the start of the school year in 2012. But it is a further indication of the difficulty which they have had making appropriate decisions about the children’s education.
I note also that the Family Consultant said in her Family Report that it appeared that the parents had not effectively communicated to ensure that the children experience consistency and stability in care between the two households and that it was of significant concern that they had been unable to reach a decision about the children’s education. She observed that it was likely that, without significant changes in their relationship, they would continue to experience significant difficulties in ensuring consistency and stability and in making decisions for the children. She said that there was very little trust between the parties and that they had very different parenting styles.
I note that in relation to communication, the father said that over the last two months the parties’ communication has improved and they have been able to speak to one another. While the mother agreed with this, she thought that the fact that changeover had been occurring at the police station had facilitated this situation.
In all these circumstances the submissions by counsel for the ICL and also by counsel for the mother were to the effect that one of the parties should be responsible for making decisions about such matters and that it would be in the children’s interests for the mother to have this responsibility.
I am reluctant to change the shared parental responsibility for this matter, because I would have preferred a situation where the parents were able to grapple with the educational issues and arrive at appropriate decisions. But I have no confidence that they will be able to do this and that their failures in this regard, from time to time, would simply cause the parties to return to this Court for adjudication upon the relevant educational issues. Such a situation would not be in the interests of the children.
In all the circumstances, in my view, it is in the interests of these children for their mother to make decisions about their education.
Having determined this, I propose to leave the parties with equal shared parental responsibility for all major decisions other than in respect of the children’s education despite misgivings about this. This is because I regard each of the parents as having much to offer the children. And I prefer to honour the presumption as much as possible consistently with the children’s best interests.

Should the Children Spend Equal Time with Each Parent?

As indicated above, if a parenting order is to provide that a child’s parents are to have equal shared parental responsibility for the child the Court must first consider making an order for the child to spend equal time with each parent. But this is subject to such being in the best interests of the child and also to being reasonably practicable.
It was submitted by counsel for the mother that it would not be in the interests of the children for the Court to make orders which would require the children to live in an arrangement under which they would spend approximately equal time with each of their parents. This submission was supported by counsel for the ICL.
This submission was to the effect that the following matters stand in the way of equal time being in the children’s interests:
·absence of an effective working parental relationship;
·different parenting styles;
·lack of trust;
·inability to cooperate;
·history of harassment of the mother by the father;
·parents residing at considerable distance from one another;
·inability to communicate effectively;
·young ages of the children and their need for a stable and secure residential arrangement;
·a troubling history of conflict between the parties as described above.
On the other hand it was submitted on behalf of the father that while it is acknowledged that research suggests that a shared care arrangement would not work where there is conflict between parents, the father’s position is that over the last twelve months there has not been conflict between the parties and they have been able to discuss relevant matters.
The Family Consultant Ms B also expressed her concern that:
Given the conflict between [the father] and [the mother] and their concerns about their inability to communicate and effectively co-parent the children, an equal time arrangement as proposed by [the father] is contraindicated. The children would benefit from a secure and stable environment with one parent who was able to meet their needs and from spending time with the other parent.
The father’s optimism about the parties having been able to improve their behaviour towards one another over the last twelve months is encouraging. But as the mother has suggested, the improvement has been achieved mainly because opportunity for irresponsible behaviour has largely been removed by changeovers having been at the police station.
In my view, common sense and the Court’s long experience indicate that an important ingredient in successful parenting of children in an equal time arrangement, is the ability of the parents to be able to communicate well and to cooperate in the many challenging responsibilities which confront them in the normal course of caring for their children. I have pointed above to numerous occasions when one of the parents has not been able to involve the other in appropriate decision making in respect of the children. No doubt there are other examples. But I simply point to one area to illustrate the practical challenges which would face the parties and the children in relation to their educational needs. Proper management of school attendance, uniform or clothing maintenance, homework and extracurricular activities require cooperation and effective communication between parents and some consistency in the parental approach in order to enable children proper opportunities to develop academically and socially. Without co-operation and consistency in parental approach to these matters, there would be risk that homework might be done poorly, inconsistently or even not at all, and the requirements of sporting and extracurricular commitments or social opportunities confused or missed out altogether to the embarrassment and overall detriment of the child.
Regrettably, in my view, most of the essential ingredients for effective and cooperative parenting required for children in an equal time arrangement are absent in this family.
In all the circumstances, in my view it would not be consistent with the best interests of these children for them to be placed in an equal time parenting arrangement.

Conclusion About Best Interests

On the positive side, both parents have a close relationship with the children and clearly the children have a meaningful relationship with each of them.
Unfortunately, as is clear from the above, there are serious deficiencies in terms of the capacities of each of the parents and their attitudes to responsible parenting. In terms of their bad parenting qualities I am not sure that there is much difference between them.
But on the positive side, the Family Consultant, as I have said, expressed the view that the mother was more in tune and sensitive to K’s cues than the father and more in tune to consistently respond to the children in a sensitive manner. This accords with my own experience of the parties in giving their evidence during the hearing.
In my view, putting to one side for a moment the parenting deficiencies about which the Court must be concerned, the mother is the more capable parent. In my view, she is more likely than the father to be able to bring a sensitive, nuanced approach to fulfilling the children’s needs, particularly their emotional and psychological needs.
The parenting deficiencies have been manifested considerably, but not entirely, as a consequence of the mother’s poisonous relationship with the father. In some of the areas about which I have been critical, assistance would appear to have been provided by the mother’s attendance at the parenting program.
Concern does remain however, whether she will be able to suppress her frustration and animosity towards the father in order to prioritise the children’s interests by facilitating their relationship with him.
This is the matter about which the father has expressed great concern. He is not confident that the mother would comply with court orders and would not undermine his relationship with the children.
In my view the keys to this matter, as it were, would be in the hands of the mother. If, over time, it was demonstrated that she was unable to behave consistently with due regard to this responsibility to promote the children’s relationship with their father and to comply with court orders, then the Court might ultimately be placed in the position where it had no alternative than to change the place of the children’s primary residence to that of their father.
I accept the overall submissions by the Independent Children’s Lawyer and the mother that the best interests of these children would be served by them living primarily with their mother.
Having arrived at this point, it becomes necessary under the legislation to consider whether the children spending substantial and significant time with their father would be in their best interests and be reasonably practicable as provided by s 65DAA(2) of the Act.

Substantial and Significant Time

The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act. In effect this means that a child will be taken to spend substantial and significant time with a parent only if:
·The time the children spend with the parent includes both:
-days that fall on weekends and holidays;
-days that do not fall on weekends or holidays; and
·The time the children spend with the parent allows the parent to be involved in:
-the children’s daily routine; and
-occasions and events that are of particular significance to the children; and
·The time the children spend with the parent allows the children to be involved in occasions and events that are of special significance to the parent.
Under the orders proposed by the ICL and the mother the children would spend time with their father each alternate weekend from after school/pre-school Friday to before school/pre-school Monday plus one half of all school holidays and an overnight occasion in the intervening weeks as well as special days. In my view, this would fit in with the legislative requirements including enabling the father to participate in the children’s school and other routine as well as significant occasions.
As indicated above, the mother seeks orders which would include that the children spend time with their father each Wednesday after school until Thursday before school. It was submitted on behalf of the father that in the event that the Court considered it appropriate for the father to have such a period of time caring for the children each intervening week, then his preference would be to have the children from after school Thursday until before school Friday. This was because they have been in the habit of attending swimming on Thursday evenings and he would like to be able to continue to take them to swimming at that time.
The difficulty with this is that it would suit the mother to be free of responsibility for the children each alternate Wednesday evening because this would enable her to work the extended hours she works on Wednesdays without having to make some specific arrangement for the children. Her working arrangement of considerable standing has been to work on Wednesdays until 9:00 pm. I am satisfied that only certain work times are available to the mother from her long-standing employer.
I have considerable sympathy for her efforts to maintain employment and regard it as being most important for these children that she is able do so. This is particularly the case because the children’s father has not provided child support assistance as referred to above.
I propose to order that the intervening period be for Wednesday evenings rather than Thursdays to enable the mother to work. In any event, experience shows that the availability of extra curricular activities for children often changes year by year. Had it not been for the mother’s need to take the opportunity to work, I would have regarded it to be in the children’s interests to be able to attend swimming. But I have every confidence that the father will be able to find other appropriate activities for the children to engage in during those times when they are in his care.
And, in my view, despite the parents living approximately 30 kilometres apart, they will be able to manage the requirements of the orders. Accordingly, in my view, the proposed orders will be reasonably practicable.
The father seeks an order to the effect that the mother be required to ensure that her parents do not attend at changeover. Changeovers under the orders I propose will be at school/pre-school or at Sydney Suburb H Police Station. But I accept the good sense of the father’s application for such an order and consider such to be in the interests of the children.

I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 10 February 2012.

Associate:

Date: 10 February 2012

[2012] FamCA 52

10 February 2012

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness

Remedies