SEBOURNE & SEBOURNE
[2020] FCCA 3172
•20 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEBOURNE & SEBOURNE | [2020] FCCA 3172 |
| Catchwords: FAMILY LAW– Parenting – final hearing – three children aged 12, 10 and 6 – mother seeks sole parental responsibility – father seeks equal shared parental responsibility – father seeks an equal time arrangement – best interest of the children – order for children to live primarily with the mother. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, Pt VII. |
| Cases cited: Goode & Goode (2006) FLC 93-286 Oscar & Traynor [2008] FamCA 95 |
| Applicant: | MR SEBOURNE |
| Respondent: | MS SEBOURNE |
| File Number: | NCC 898 of 2019 |
| Judgment of: | Judge Costigan |
| Hearing dates: | 10 & 12 August 2020 |
| Date of Last Submission: | 27 August 2020 |
| Delivered at: | Newcastle |
| Delivered on: | 20 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Murray |
| Solicitors for the Applicant: | Winder Lawyers |
| Counsel for the Respondent: | Ms Ticehurst |
| Solicitors for the Respondent: | Harpers Legal |
ORDERS
The parents have equal shared parental responsibility for the children, X born in 2008, Y born in 2010 and Z born in 2014 (‘the children’).
The children shall live with the mother.
The children shall spend time with the father as follows:
(a)Each alternate week, from the conclusion of school Monday (or 3.00pm) until the commencement of school Tuesday (or 9.00am), to commence the first Monday after the date of these Orders;
(b)In that same week from 9am Saturday (or 3.00pm) until the commencement of school (or 9.00am) Wednesday in the second week, to commence the first Saturday falling after the time referred to in 3(a).
(c)During school holiday periods in Terms 1, 2 and 3, as agreed and failing agreement as follows:
(i)In even numbered years, for the first half of the school holiday period commencing at 9.00am on the first Saturday of the school holiday period and concluding at 5.00pm on the second Saturday of that period; and
(ii)In odd numbered years, for the second half of the school holiday period commencing at 9.00am on the second Saturday of the school holiday period and concluding at 5.00pm on the second Saturday immediately prior to the commencement of the school term.
(d)During the Term 4 School Holiday period, as agreed and failing agreement as follows:
(i)During the Christmas New South Wales gazetted school holidays as agreed but failing agreement for the first half of the Christmas school holidays in odd numbered years to commence at 10.00 am on the first Saturday following the cessation of the school term and concluding at 6.00 pm on the day that marks the midpoint of the school holiday period and in even numbered years the second half of the school holiday period commencing at 10.00 am on the day that marks the mid-point of the school holidays and concludes at 6.00 pm on the Sunday prior to the commencement of the new school term.
(ii)The time in Order 3(a) and 3(b) shall be suspended during school holiday periods and will resume at the commencement of school term as if it had not been interrupted by Orders 3(c) and 3(d).
Notwithstanding any other Order, the children shall spend time with the father:
(a)At Easter, in odd numbered years, from 3.00pm Easter Saturday until 3.00pm Easter Sunday and in even numbered years, from 3.00pm Easter Sunday until 3.00pm Easter Monday.
(b)On Father’s Day, from 9.00am until 5.00pm.
(c)At Christmas, in odd numbered years, from 3.00pm Christmas Day until 3.00pm Boxing Day and in even numbered years from 3.00pm Christmas Eve until 3.00pm Christmas Day.
The father’s time with the children shall be suspended:
(a)On Mother’s Day, from 9.00am until 5.00pm.
(b)At Easter, in even numbered years from 3.00pm Easter Saturday until 3.00pm Easter Sunday, and in odd numbered years from 3.00pm Easter Sunday until 3.00 pm Easter Monday.
(c)At Christmas, in odd numbered years from 3.00pm Christmas Day and in even numbered years from 3.00pm Christmas Day until 3.00pm Boxing Day.
For the purposes of changeover, where this does not otherwise occur at school, it will take place by the mother delivering the children to the father’s residence at the commencement of time and the father returning the children to the mother’s residence at the conclusion of time.
The children shall have liberal telephone or Facetime communication with the parent they are not spending time with, at all reasonable times and intervals.
Each parent shall immediately contact the other parent upon any of the following occurring whilst the children are in their care;
(a)The children falling seriously ill;
(b)The children being hospitalised; or
(c)The children being seriously injured.
Both parents are authorised (and a copy of these Orders shall be sufficient authority):
(a)To receive (at their own expense) such notices, newsletters, invitations, photographs, reports and other documents or information normally provided to parents from any school which the children may attend from time to time;
(b)To attend (at their own expense) all functions to which parents are normally invited by any school which the children may attend from time to time, including but not limited to concerts, awards ceremonies, assemblies, sports days and parent-teacher interviews.
(c)To receive (at their own expense) such medical reports, test results, medical notes and other similar documents normally provided to parents from any medical practitioner which the children may attend from time to time.
The parents are restrained from denigrating the other in the presence or hearing of the children and will remove the children from any situation where such denigration is occurring.
The Father is restrained from consuming illicit substances or drinking alcohol 12 hours prior to or during any time the children are in his care.
The Father is restrained from exposing the children to family violence during any period the children are in his care.
The parents shall only communicate via email in respect of the children, except for urgent matters where that communication can be either by text message or telephone call.
The parents shall inform the other of any change to their residential address, email address or telephone number within 48 hours of such change occurring.
IT IS NOTED that publication of this judgment under the pseudonym Sebourne & Sebourne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 898 of 2019
| MR SEBOURNE |
Applicant
And
| MS SEBOURNE |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between the applicant father Mr Sebourne (‘the father’) and the respondent mother Ms Sebourne (‘the mother’) in relation to the children X born in 2008 (‘X’), Y born in 2010 (‘Y’) and Z born in 2014 (‘Z’) (collectively ‘the children’).
Background
The parties commenced their relationship in 2006.
The child X was born in 2008.
The child Y was born in 2010.
The parties married in 2013.
The child Z was born in 2014.
In 2015 the parties moved from Town B to City C.
The parties separated on 14 June 2017. The mother says that the father was homeless for 8 weeks before moving into a property some 200 metres from her residence. Since that time the children have lived with the mother and spent time with the father in accordance with an agreement reached by the parties in March 2018 with the assistance of mediation. That agreement provided for the father to spend time with the children one overnight on a Monday and alternate weekends from Saturday morning to 8pm Tuesday.
In March 2018 the parties attended mediation with D Counsellors. It was unsuccessful and a section 60I certificate issued.
On 11 November 2018 a final apprehended violence order was made for the protection of the mother which included a no contact order (communication only by email) for a period of 2 years.
On 27 November 2018 the father obtained a mental health treatment plan.
On 22 March 2019 the father filed his initiating application seeking orders, inter alia, for equal shared parental responsibility and a shared care, week about parenting arrangement.
The mother filed her response on 21 May 2019 seeking orders for sole parental responsibility, the children to live with her and spend significant and substantial time with the father.
The matter first came before the Court on 22 May 2019 when orders were made for the preparation of the Family Report. Interim parenting orders were made by consent for the children to live with the mother and spend time with the father for 5 nights a fortnight. The father was restrained from consuming any alcohol or illicit substances 12 hours prior and during any period when the children were in his care. The mother was to submit to hair analysis and the father CDT testing. The parties were to complete a Parenting After Separation course and the father the Facing Up Program.
The mother’s hair analysis results collected on 6 June 2019 were negative for illicit drugs.[1] She also completed the Parenting After Separation course on 29 August 2019.[2]
[1] Mother’s affidavit filed 15 July 2020, Annexure L
[2] Mother’s affidavit filed 15 July 2020, Annexure F
The father’s hair analysis results in respect to a sample collected on 11 June 2019 were also negative for illicit substances and his CDT test in May 2019 was within normal range at .09%. The father deposes to completing a 20 week Facing Up group program through E Counsellors at Suburb F and a post-separation parenting course through G Families from 8 August 2019 to 19 September 2019.[3]
[3] Father’s affidavit filed 31 July 2020 at [177] & [178]
On 14 July 2019 the father was directed to complete his CDT testing prior to the Family Report interviews. That does not appear to have occurred. He tendered CDT results in respect of a sample collected on 15 June 2020[4] that was within normal range.
[4] Exhibit D
The Family Report prepared by Mr H was released on 27 September 2019.
On 28 January 2019 the matter was listed for final hearing with an estimate of 3 days.
On 26 May 2020 absent the mother’s knowledge or consent the father took Y for a blood test for Coeliac disease. An appointment arranged for him to attend upon the City C Allergy Immunology Clinic was scheduled for 4 August 2020.
On 10 August 2020 the final hearing proceeded via the Microsoft Team platform. Both parties were represented by Counsel: the father by Mr Murray and the mother by Ms Ticehurst. The hearing was conducted over two days and at the conclusion of evidence and submissions, I reserved my decision.
On 27 August 2020 with the consent of the mother’s legal representative, the father caused a copy of his hair analysis results for excessive alcohol consumption to be sent to Chambers. The sample was collected on 4 August 2020 and was negative for alcohol.[5]
[5] Negative is defined as an EtG level that is less than the cut-off of 2pg/mg.
Competing applications
The father seeks orders as set out in his Case Outline[6] as follows:
1. That the children X, born in 2008, Y, born in 2010 and Z, born in 2014 live with the mother.
2.That the parties have joint responsibility for the children.
3.That the children spend time with the father as agreed but failing agreement as follows:
3.1In week one from the end of school Monday to the commencement of school the following Wednesday.
3.2In week two from after school Friday to the commencement of school the following Wednesday.
3.3 During the New South Wales gazetted school holidays in Terms 1, 2 and 3 such half to be as agreed between the parties but failing an agreement to be the second half of each school holiday period commencing at 10.00 am on the day that makes the midpoint of the holidays and conclude at 6.00 pm on the Saturday prior to the resumption of the new School term.
3.4 During the Christmas New South Wales gazetted school holidays as agreed but failing agreement for the first half of the Christmas school holidays in odd numbered years to commence at 10.00 am on the first Saturday following the cessation of the school term and concluding at 6.00 pm on the day that makes the midpoint of the school holiday period and in even numbered years the second half of the second half of the school holiday period commencing at 10.00 am on the day that marks the mid point of the school holidays and conclude at 6.00 pm on the Sunday prior to the commencement of the new school term.
[6] Exhibit C
4. The father have liberal electronic communications with the children prior to 8.30pm.
5. Such further times or variation to the above agreement as agreed between the parties from time to time.
6. Unless otherwise agreed between the parties changeover is to be facilitated by the father collecting from and returning to school on occasions when changeover does not occur at school the father is to collect and return the children from the mother’s residence.
7. Where either party uses another person to help facilitate the changeover that person is to be well known to the child.
8. That each party provide such consents and authorities to allow the provision to the other party that any medical reports or reports in relation to the child as required by any treating medical practitioner or practitioners.
9. That each party provide such records of consents and authorities required by the school or any school that the child may attend to enable each party to receive report or reports school photographs, or any other notice or notices relating to the child and permit both parties to attend the school of the child for the purpose of attending special events involving the child and/or to speak to the teachers of the child concerning the school performance of the child.
10. That each party provide such replicates consents and authorities to permit the other to attend the school of the child at all reasonable times subject to the direction of the principal of the subject school.
11.That each party is to telephone the other as soon as practicable upon the happening of any of the following:
a. The child becoming seriously ill.
b. The child becoming hospitalised
c. The child being involved in an accident.
The mother seeks orders as set out in her Case Outline[7] as follows:
[7] Exhibit A
1.The mother shall have sole Parental Responsibility for the children, X born in 2008, Y born in 2010 and Z born in 2014.
2.The children shall live with the mother.
3.The children shall spend time with the Father:
3.1Each alternate week, from the conclusion of school Friday (or 3.00pm) until the commencement of school Monday (or 9.00am), to commence the first Friday after the date of these Orders;
3.2Each alternate week, from the conclusion of school (or 3.00pm) on Monday until the commencement of school (or 9.00am) Tuesday, to commence the first Monday falling after the time referred to in 3.1.
3.3 During school holidays periods in Terms 1, 2 and 3, as agreed and failing agreement as follows:
3.3.1In even numbered years, for the first half of the school holiday period commencing at 9.00am on the first Saturday of the school holiday period and concluding at 5.00pm on the second Saturday of that period; and
3.3.2In odd numbered years, for the second half of the school holiday period commencing at 9.00am on the second Saturday of the school holiday period and concluding at 5.00pm on the second Saturday immediately prior to the commencement of the school term.
3.4During the Term 4 School Holiday period, as agreed and failing agreement as follows:
3.4.1In even numbered years, Weeks 1, 3 and 5 of the school holiday period with the holiday period deemed to commence at 9.00am on the first Saturday after the end of the school year and each period of time will conclude at 5.00pm on the Saturday which immediately follows; and
3.4.2In odd numbered years, Weeks 2, 4 and 6 of the school holiday period, with the time to commence at 9.00am and conclude at 5.00pm.
3.4.3The time in Order 3.1 and 3.2 shall be suspended during school holiday periods and will resume at the commencement of school term as if it had not been interrupted by Orders 3.3 and 3.4.
4.Notwithstanding any other Order, the children shall spend time with the Father:
4.1At Easter, in odd numbered years, from 3.00pm Easter Saturday until 3.00pm Easter Sunday and in even numbered years, from 3.00pm Easter Sunday until 3.00pm Easter Monday.
4.2On Father’s Day, from 9.00am until 5.00pm.
4.3At Christmas, in odd numbered years, from 3.00pm Christmas Day until 3.00pm Boxing Day and in even numbered years from 3.00pm Christmas Eve until 3.00pm Christmas Day.
5.The Father’s time with the children shall be suspended:
5.1 On Mother’s Day, from 9.00am until 5.00pm.
5.2At Easter, in even numbered years from 3.00pm Easter Saturday until 3.00pm Easter Sunday, and in odd numbered years from 3.00pm Easter Sunday until Easter Monday.
5.3At Christmas, in odd numbered years from 3.00pm Christmas Day and in even numbered years from 3.00pm Christmas Day until 3.00pm Boxing Day.
6.For the purposes of changeover, where this does not otherwise occur at school, it will take place by the Mother delivering the children to the Father’s residence at the commencement of time and the Father returning the children to the Mother’s residence at the conclusion of time.
7.The children shall have liberal telephone or Facetime communication with the parent they are not spending time with at all reasonable times and intervals.
8.Each parent shall immediately contact the other parent upon any of the following occurring whilst the children are in their care;
8.1The children falling seriously ill;
8.2The children being hospitalised;
8.3The children being seriously injured.
9.Both parents are authorised (and a copy of these Orders shall be sufficient authority):
9.1To receive (at their own expense) such notices, newsletters, invitations, photographs, reports and other documents or information normally provided to parents from any school which the children may attend from time to time;
9.2To attend (at their own expense) all functions to which parents are normally invited by any school which the children may attend from time to time, including but not limited to concerts, awards ceremonies, assemblies, sports days and parent-teacher interviews.
9.3To receive (at their own expense) such medical reports, test results, medical notes and other similar documents normally provided to parents from any medical practitioner which the children may attend from time to time.
10.The parents are restrained from denigrating the other in the presence or hearing of the children and will remove the children from any situation where that denigration is occurring by third parties.
11.The father is restrained from consuming illicit substances or drinking alcohol 12 hours prior to or during any time the children are in his care.
12.The Father is restrained from exposing the children to family violence during any period the children are in his care.
13.The Father is restrained from leaving the children unsupervised with the Paternal Uncle, Mr J.
14.The parents shall only communicate via email in respect of the children, except for urgent matters where that communication can be by either text message or telephone call.
15.The parents shall inform the other of any change to their residential address, email address or telephone number within 48 hours of such change occurring.
Issues
The issues requiring determination by the Court are as follows:
·Parental responsibility: the father proposes equal shared parental responsibility and the mother proposes that she have sole parental responsibility;
·Live with/spend time with arrangements: the father proposes an equal time arrangement and the mother proposes the children live with her and spend 4 nights per fortnight and special occasions with the father; and
·Whether the father should be restrained from consuming alcohol whilst spending time with the children.
Evidence of the father
The father relied on the following documents at the final hearing:
·His Initiating Application filed 22 March 2019;
·His Notice of Risk filed 22 March 2019; and
·His Affidavit filed 31 July 2020.
The father also tendered and relied upon the following:
·His Case Outline (Exhibit B); and
·His Carbohydrate Deficient Transferrin (CDT) results collected on 15 June 2020 (Exhibit D).
The father relied on his trial affidavit sworn 31 July 2020 and was cross-examined. The father is 36 years old. He works part time as a tradesman and is a student at the University of City C. The father resides on his own in a three bedroom unit in Suburb K.
In cross-examination the father said that he and the mother had a ‘stormy relationship’. He conceded pushing the mother and kicking the pram on 4 October 2017 and there had been mutual yelling but otherwise there had been ‘not much’ family violence until the end of the relationship. He said that the mother had hit him with various items including paint tins, and he had hit her back.
His evidence was that:
·He sought orders for equal time and felt the mother was being ‘unreasonable’ in resisting that application.
·He accepted that in order for an equal time arrangement to be effective the parents need to be able to trust each other, be flexible, and work co-operatively together and be attuned to the children’s needs.
·He disagreed that he had ever been aggressive towards the mother which was inconsistent with his affidavit and later oral evidence.
·He deflected questions about problematic alcohol use during the marriage saying that he ‘would drink after work’ and also when he and the mother ‘went out’.
The father maintained in cross-examination that his proposal for equal time was appropriate and feasible because ‘the children want it too’ and he and the mother ‘don’t need to be best friends’ in order for the arrangement to work.
Evidence of the mother
The mother relied on her affidavit filed 15 July 2020.
She also tendered and relied upon the following documents:
·Her Case Outline filed 7 August 2020 (Exhibit A);
·Email exchanges between the parties in May 2019 (Exhibit B);
·Letter dated 11 August 2015 from the father’s general practitioner Dr L to the Region M Local Health Network (Exhibit E); and
·Tender Bundle of Subpoenaed Material (Exhibit F).
The mother is 42 years of age and is self-employed as an owner/operator of a small business. Prior to COVID-19 she worked in the hospitality industry. She resides in Suburb N with the children and her partner Mr O. The mother has a child P born in 2003 from a previous relationship. She also has an adult child from a prior relationship Ms Q.
The mother was cross-examined. She deposes to numerous incidents of family violence perpetrated by the father in the course of their relationship including being hit with objects, ‘smashed boxes over my head, thrown things at me, choked me and head butted me.’
Her evidence was that she continues to have concerns about the father’s parenting capacity, particularly in relation to alcohol misuse where it was her experience that the father resorted to drinking when he was stressed. She has no confidence that the father would be able to cope with an additional night on the Tuesday.
Tuesdays nights have been problematic for the children. The father is always late and drops the children off closer to 8.30pm rather than 8pm as provided by the Orders.
She does not want to have any contact with the father and would prefer all changeovers occur at the school. However, if not at school then she says the children should be collected from, and delivered to the residence of each parent.
In relation to Christmas holidays the mother proposed that the children spend the 1st, 3rd and 5th week with the father as she does not believe that Z would cope with being away from her for any longer period.
Another concerning aspect of the mother’s oral evidence was her ambivalence around her proposal for school holidays. On two occasions, in answer to my questions, the mother said that her preference for the school holidays was for a continuation of the term arrangements rather than week about as outlined in her application.
Family Consultant
Mr H is a social worker and Regulation 7 Family Consultant who prepared the Family Report in these proceedings. Mr H’s report is dated 27 September 2019. He gave evidence on the second day of the hearing and was cross examined.
In his family report, Mr H sets out the father’s observations of the co-parenting relationship at paragraphs [53] to [55] as follows:
[53] .The father stated that both he and the mother “fundamentally disagree” on factors regarding the children, and the father specifically referenced that ‘Ms Sebourne doesn’t believe in immunising the children and I do’. The father further expressed concern that the children could contract measles and other preventable diseases, and he believed it was “safer” to have the children immunised. It was noted by the report writer (in subpoenaed material) that the father took the children to be immunised at their regular GP, who did not immunise the children because the doctor was aware of the mother being a ‘conscience objector’ of child immunisations.
[54] The father also referred to the mother’s own diagnosis made of the child Y having gluten intolerance and requiring a gluten free diet. The father further expressed that there is no evidence of this, and also stated that the child has accidently eaten things with gluten and has not had any adverse consequences at all. The father further expressed that the mother won’t discuss any of these issues with him, and remains inflexible about such things. The father believed that this was unfair and disadvantageous for the children to face such unnecessary restrictions.
[55] The father also raised concern into the ‘lateness’ of the 8pm exchange of care of the children on Tuesday nights. The father believed that it was highly unsettling for the children to change households so late, and prior to school the following day, and the father rather suggested that the reasons for the mother being inflexible about these arrangements was because of her financial motivations (FTB Centrelink payments and child support). The father was asked what reasons the mother gave to him to not agree to the children staying on Tuesday nights, and he referenced the mother’s statements to him that he “was not capable”.
Mr H set out the mother’s observations of the father’s parenting in paragraphs [37] as follows:
‘The mother essentially described that she believed the father ‘would not cope’ with the parenting arrangements of 50/50 care as he has proposed. The mother described that their 11-year relationship started well, but declined over the course of time, and this decline was particularly impacted upon by a miscarriage, and the father’s increasing stress around work and study commitments, as well as the father’s increase of alcohol use. The mother suggested that over time the father “just checked out” and retreated from parental responsibility, particularly when the mother herself became sick (chronic fatigue). The mother also stated that the father had ‘violent outbursts that were few and far between’, however these alleged outbursts were said to have increased significantly closer to separation, and during a protracted separation (with a brief period of getting back together), and after separation.
In relation to the parties’ current communication and relationship, Mr H describes what the parties told him in paragraphs [62]-[63] as follows:
’62. The applicant father describes that the adult relationship is currently difficult, and that communication between parties is almost exclusively by way of emails, because of the existence of the current ADVO. The father did express (as did the mother) that email communication has generally been working well (in terms of matters pertaining to the children).
63. The respondent mother suggested that email communication has been affective in managing such issues, and the mother verbalised that the father was responsive and appropriate when the mother emailed him about concerns regarding the father’s brother (Mr J) having contact with the children. However, the mother also spoke about currently having ‘zero’ relationship with the father and also expressed that the father was ‘quite malicious’ in his interactions with her.
Mr H sets out his discussions with each of the children about their experiences of the current parenting arrangements and reports as follows:
“69. ……[Z] was asked about living with both her Mum and Dad, and asked if she enjoyed living with her Mum, and living with her Dad. The child replied that she did like it and enjoyed spending time with both her mother and father. The child did express that she begins to miss her mother when spending time with her father. The child was asked what she liked about spending time at her father’s house, and she replied that she liked watching “Odd Squad” (a children’s TV show). The child also spoke positively about her pets (cats) at her father’s, and an occasion when they filled her father’s lounge room with balloons. The child was asked what she enjoyed doing at her mother’s house, and the child replied that she liked playing on the trampoline.
70. Z was asked if there was anything that worried her, or scared her in any way (at any household) and the child replied that there was not. The older two brothers (sitting with their sister) often felt the need to encourage Z to talk, or sometimes tried to answer questions for her. This is perhaps an indication of the older children typically functioning in a protective factor for the younger child, either deliberately, or naturally, which would be logical given their age, and the dispute between parents. Z keenly returned to the company of her mother (and maternal family) at the conclusion of the brief interview with her.
………..
72. [X] was asked about his current living circumstances (between parents) and he explained that he enjoyed spending time with, and living with both of his parents. The child was asked what sort of things he enjoyed doing (at either household) and he replied that he liked riding his scooter, drawing (school), ‘loved sport’, and playing video games. The child further described (with a degree of self-critique) that he has “quit his addiction to video games” lamenting that he had spent over $100 birthday money on games like R. X stated that he is now happy just playing these games (with Y) without spending real money.
73. X was asked if there was anything ‘bad’ or ‘worrying’ in his life, and the child replied that there wasn’t. The child was asked if he had seen his parents arguing and fighting, and he stated that he ‘used to’, and when he was asked ‘if it was better now’, the child replied that they (his parents) still argue a bit. The child was specifically asked about Mr O (mother’s partner) and the child replied that he was good (no fear or anxiety evident in the child). The child replied in the same way when asked about others in his family, such as his paternal grandmother and his Uncle Mr J.
74. X was asked if there was anything he would like to say to the family consultant, or to the Judge (as the child was aware of the Court involvement), about his parenting arrangements, and the child replied that “when it’s Dad’s weekend, I don’t want to go home at 8 o’clock on the Tuesday night because it’s too late”. The child was asked why he felt this way, and the child simply replied that it was ‘just hard changing houses so late’. The child was asked what he thought would work better, and the child replied that he would like to stay with his father on the Tuesday night, and go to school from his father’s house on Wednesday morning, and catch a bus home from school (to his mother’s) after school. The child did acknowledge that Y agreed with him, but it was a bit harder for Z, because ‘she might miss Mum’.
………
76. ……..Y was asked about his living arrangements with his Mum and Dad, and the child replied that it was ‘OK’. The child was asked if there was anything that worried him, or scared him (in either household), and the child replied that there was not. The child was asked what he enjoyed doing (at his mother’s house) and he replied that he ‘liked going to the skate-park, and jumping on the trampoline’, and going to school (enjoying school and the company of school friends). The child was then asked ‘what sort of things he enjoyed doing at Dad’s house, and the child replied that he liked playing computer games, especially when everyone played the same game (Dad, Uncle Mr J, X) – on separate devices but all linked in together on the one game.
77. The child was asked specifically about his mother’s partner Mr O and the child replied that he is good, and fun, and does not worry him (the child) at all. The child confirmed that Mr O stays over ‘every now and then’ and is nice to his mother, and the children. The child was also specifically asked about his Uncle Mr J, and the child replied positively as well (he is fun, and nice). The child showed no hesitation or ambivalence when describing his relationship with Mr O, Mr J, or his paternal grandmother. The child was asked if there was anything that was ‘bad’ in his life, or anything that ‘worried’ him, and he replied that there was not. The child was asked, if he could change anything about his living arrangements (between parents) – would he, and the child replied that he “would like more time at Dad’s house”. When asked ‘why’, the child replied that ‘it would be more ‘even’, and more ‘fair’. The child was asked about going home to his mother’s house on a Tuesday night (at 8pm), and the child replied that he would prefer to stay at his father’s on Tuesday nights, instead of going home ‘so late’. The child was asked if this was ‘his idea’ and the child replied that he had spoken about it with his brother, and had asked his father (about staying the Tuesday nights).
Under the heading ‘Evaluation’, Mr H made the following observations in relation to the children:
103. The older two children’s expressed views were that they valued and enjoyed time spent with the father, and did not have any strong opposition to living with the mother, and spending (close to equal) time with the father. The children X and Y made the unified remarks about spending the additional Tuesday night with their father, as opposed to returning to their mother at 8pm. The report writer suspects that this view was primarily based on very practical and reasonable preferences, even if the view was also expressed to them by the father. The youngest child Z was not thought to put forward a strongly expressed view, although the report writer suspects that the child has a strong and dependant attachment to her mother, but does enjoy spending significant time with her father.
Mr H evaluated the advantages and disadvantages of the parties’ competing proposals regarding an equal shared care arrangement in paragraphs [106] to [106]:
“106. The impact of the applicant father’s proposals on the children will be that the parental parties maintain shared and equal parental-responsibility, and that the children spend 50/50 time living between two (sometimes opposing) households. This would be the case for the younger child Z, who is only just now growing out of an age where-in the primary attachment to her mother is at a vital and pivotal moment of development. It is likely that the child Z would miss her mother under such an arrangement, even if she was supported by her older brothers, who in turn wouldn’t miss time with their mother as much.
107. The impact of the respondent mother’s proposals on the children will be that the children maintain the current times and arrangements of time spent with the father. This would still include the 8pm handover of care (from the father to the mother) on a Tuesday night. This is a point of dispute between parties and a point of discomfort for the children. Significantly, the mother’s proposals would also see that the mother has sole parental decision-making responsibilities.
108. The arrangements evaluated to be most consistent with the children’s needs are considered to be a hybrid of those proposals made by the parental parties. The report writer would recommend that the current parenting arrangements continue as they are, but with the inclusion of the Tuesday night, with the children going to school from the father’s house on a Wednesday, and returning to the mother after school. Alternatively, the Court may consider that the children return to the mother earlier on the Tuesday night (prior to the evening routine).”
And in relation to the vexed issue of parental responsibility the Family Consultant opined,
‘109. Shared parental responsibility is reservedly supported by the report writer as the father appears to have addressed the concerns regarding his responsibilities and parenting capacities, and also due to the considerable time that the children are recommended to spend with the father. The ability of parties to come to agreements regarding the vaccination, diagnosis (gluten intolerance), and medical treatments of the children during the Court process, would serve to give an indication of both parties’ abilities to exercise shared parental responsibility in a collaborative, respectful, and child focussed manner.
Accordingly, under the heading ‘Recommendation’ at paragraphs [110] to [118] Mr H wrote:
110.Shared and equal parental responsibility for the subject children is recommended as per the point above.
111.It is recommended that the children live with the mother, and spend time with the father as agreed, but failing agreement, (generally as per the interim arrangements),
(a)In week 1, from after school on Monday to the commencement of school on the following Wednesday,
(b)And in week 2, from Saturday (9am) to the commencement of school on Wednesday,
(c)As well as half of school holidays and special occasions.
112.Alternatively, the Court may consider the children returning to the mother on the Tuesday evening in week 2, and in this case, it would be recommended that the children return to the mother’s care around 5-6pm on the Tuesday.
113.It is recommended that neither party can denigrate the other party in the presence of the children, and further recommended that the parties are responsible for removing the children from any environment where parental denigration, or family violence is occurring.
114.It is recommended that the children can communicate with either parent by phone, skype, facetime (or similar), as they choose, and on special occasions, at a time and in a manner as agreed by parties prior to final orders being made.
115.It is recommended that each party are entitled to attend the school events or weekend activities of the children that parents would ordinarily be invited to attend, provided that parties are able to ensure a safe and positive shared environment for the children.
116.It is recommended that neither party be under the effects of any illicit substances including marijuana, or be intoxicated with alcohol when caring for, or spending time with the child.
117.It is recommended that the parties come to agreements regarding the children’s interactions with the paternal uncle Mr J, and also the paternal grandmother, prior to final orders being made, and with the guidance of the Court.
118.It is recommended that the parties come to agreements regarding the children’s vaccinations, prior to final orders being made, and with the guidance of the Court.
Prior to cross-examination Mr H was provided with copies of Exhibits I and E and annexure D to the mother’s trial affidavit. I will refer to the evidence of the Family Consultant throughout these Reasons but the following points he made in cross-examination were of particular significance:
·The parent’s inability to reach joint decisions about issues such as the school X is to attend next year or whether the children should be vaccinated does not bode well for them to be able to share parental responsibility.
·The father’s proposal of the children living with him for 3 or 4 days a week is a much larger increment than it may sound and would elevate the Family Consultant’s concerns in relation to the time that Z would be away from the mother.
·The Family Consultant has reservations about different children having different parenting arrangements so would not support an arrangement for the boys to spend equal time with the parents and for Z to spend 4 and 3 nights with the father within that arrangement.
·He would generally support equal time in school holidays when the routine of life is less complex.
·He would be concerned about a proposal that involved an increase in movements between the households and an increase in the number of changeovers.
·In relation to the father’s reflections upon the family violence in the relationship and his role as a perpetrator, the Family Consultant had a sense that the father was ‘owning’ some responsibility but trying to ‘unjustly justify his overreactions to the conflict.’ It is of concern to the Family Consultant when a party who has a degree of physical power over the other, seeks to justify their actions.
·While alcohol was a contributing factor to the family violence in the relationship ‘If you stop drinking it doesn’t automatically eliminate personality traits or behaviours akin to family violence.’
·The emails from the father that were tendered in the mother’s case use aggressive, coercive, controlling and ultimatum-type language. This type of communication is concerning in the context of the need for these parties to genuinely negotiate and reach agreement should an order for equal shared parental responsibility be made.
In cross-examination with counsel for the mother around issues of family violence and communication between the parents, the Family Consultant said he was less confident in his recommendation that the children spend time with the father for 6 nights per fortnight. The factors that gave weight to his recommendation were the existing parenting arrangements; that the mother appeared open to the children spending time with the father; that the children appeared comfortable spending time with the father and that there was no clear evidence of the children being psychologically harmed or at risk from the current parenting arrangements. However, the positivity, harmony, functionality and efficacy of a shared parenting regime is not currently evident.
In relation to the mother’s proposal which involves a reduction in time for the two older children with the father, while the Family Consultant did not believe the children would be strongly opposed to the arrangement he could not help but wonder if they would ‘feel it would be less time’ with the father. That sense of loss may be ameliorated by spending a period of block time with the father in school holidays.
In response to questions from the Bench, the Family Consultant said that in interview, the mother appeared to have mixed feelings and opinions about the children spending time with the father. She commented generally that she wanted the children to have a relationship with their father. She thought he was a ‘good dad’ and did not believe he was violent towards them but had lingering concerns about his parental capacity.
The Family Consultant said he understood the logic of the mother’s proposal which would see the children spend equal time in school holidays but not during term time. During school holidays there is less demand for routine and structure. He was not aware of any recent results for drug or alcohol screening of the father, but if the father was still drinking to excess and coming to the attention of authorities as a consequence of his misuse of alcohol, then the Family Consultant would have concerns around the children spending extended periods in school holidays.
The Family Consultant also expressed concerns about the increase level of contact, communication requiring negotiation involved in a week about arrangements.
The Children
X is 12 years old and attends Suburb K Public School where he is in year 6. The mother reports that he is the most ‘independent’ of the three children and is in an Enrichment Program at school.
X is due to start high school next year and the parents are unable to agree on the school he should attend. The mother proposes Suburb S High School but is aware that he would prefer to attend T School, Suburb K and the father is supportive of X’s choice.
Y is 10 years old. He also attends Suburb K Public School and is in year 5. The mother suspects that he may have a gluten or wheat intolerance. The father took Y for blood tests for Coeliac disease on 27 May 2020. The results were negative and the father says he ‘shared’ the results with the mother on 15 June 2020.
The parents agreed to have Y assessed at the City C Allergy Immunology Clinic on 29 June 2020 but the mother slept in and was late for the appointment. It was re-scheduled for 4 August 2020.
Z is 6 years old and in Kindergarten at Suburb K Public School.
All three children were observed by the Family Consultant to be neat and healthy, happy and to have reached all relevant milestones.
None of the children are vaccinated as a consequence of an ‘informed decision’ taken by the mother. The father disagrees and has attempted to have the children vaccinated but the children’s treating doctors refused, knowing the mother’s stance. This issue together with the choice of school for X will be considered later in these reasons.
Legal Principles
In deciding to make any parenting order the child’s best interests must be the paramount consideration under s 60CA of the Act.
In determining what is in the best interests of the child, the Court must consider the primary and additional considerations set out in s 60CC(2) and s 60CC(3) of the Act.
Any determination of what is in the best interests of the child must be made in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.
Primary considerations
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.
In applying the primary considerations greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[8]
[8] Family Law Act 1975 (Cth) s 60CC(2A).
There are a number of additional considerations in section 60CC(3) to which I must have regard insofar as they are relevant.
Abuse and family violence
The term ‘abuse’ is defined in section 4 of the Act in relation to a child as:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Family violence means:
‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.’[9]
[9] Family Law Act 1975 (Cth) s 4AB(1).
The Act provides that a child is exposed to family violence “if the child sees or hears family violence or otherwise experiences the effects of family violence”.[10] Some examples of situations that may constitute a child being exposed to family violence include:
[10] Family Law Act 1975 (Cth) s 4AB(3).
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
…
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family.
I now wish to consider the primary and additional considerations under section 60CC (2) and 60CC(3) of the Family Law Act 1975.
Primary Considerations: Section 60CC(2)
Section 60CC(2)(a) - the benefit of the child having a meaningful relationship with both of the child’s parents.
By virtue of the orders they each propose on a final basis, the parties agree that the children currently enjoy a meaningful relationship with both parents. The evidence also suggests that this is the case.
Section 60CC(2)(b) - the need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
This is clearly the most important consideration for the Court and pursuant to section 60CC(2A), I must give greater weight to section 60CC(2)(b) as against section 60CC(2)(a).
The mother alleges she was the victim of family violence perpetrated by the father during the relationship. She also alleges that the father’s parenting capacity is compromised by his historical mental health, drug and alcohol misuse.
Family Violence
The mother told the Family Consultant,
38. The mother was asked to describe the conflict and violence that occurred between them. The mother exampled that the father had hit the mother on the head with a box, and that the two of them ended up wrestling on the ground, when the father punched her, and tried to strangle her. The mother reports that she was injured as a result of this physical assault. The mother additionally stated that her child Ms Q was a witness to this event. The mother also described that both parties ‘lost respect for each other’, from this point on. The mother described calling police for intervention on this occasion, and also described a second occasion (post-separation) where-in the father kicked a pram at a window and broke the window. An ADVO was applied after this event.
39. The mother described further family violence occurring after this ADVO was in place, and despite efforts between the two to reconcile, the mother states that more aggression occurred between parties, either at the father’s house or at the mother’s house. The mother further described that the father had threatened to kill pets (during arguments) and that he had entered her house and became angry (verbally aggressive, threatening, and denigrating her) when discussing the living arrangements or schooling of the children. The mother again reported the father to police and the father was found to have breached the ADVO.
The father alleges that the mother uses cannabis[11] and that he was the victim of family violence perpetrated by the mother during the relationship. The father alleges that the mother’s parenting capacity is compromised by reason of her chronic fatigue which is why he says he did ‘almost all of the driving and chores around the house.’[12] He told the Family Consultant:
56. The father was asked about the allegations of the mother made about him, particularly that of family violence. The father stated that he ‘is not a violent person’ and has ‘never been a fighter’. Alternatively, the father suggested that the violence between parties was in the context of conflict between parties during highly emotional arguments, and that parties were reactive to each other’s escalating aggression and verbal denigration. The father suggested that the mother would throw things at him, slapped his face, hit him, dragged him out of bed, and kicked him. The father described that he would react back, and ‘freaked out’ on occasions, and had hit the mother back (either deliberately or accidently), and had injured the mother (scratching or hitting). The father described that it was equal conflict and aggression between parties, and that things got worse when parties were stressed or the situation became highly “charged”. Parties were reported to push each other or grab each other, or hit each other (“hit for hit”), and on one occasion the mother fell over when the father pushed her. The father voiced regret and ‘feeling horrible’ when he injured the mother (bruises) and also acknowledged that on some occasions, such conflict or violence occurred in front of the children.
[11] Family Report at [23]
[12] Father’s affidavit filed 31 October 2020 at [167]
According to the Family Consultant, the mother’s counselling notes produced by Victims of Crime Assistance League (VOCAL),
‘are largely thought to support the accounts of violence as described by both parties to the family consultant….and which now appear to be without dispute.’[13]
[13] Family Report at [95]
Both parties gave evidence in relation to a number of incidents that resulted in either injury or police intervention:
(a)The father alleges that in early 2015 the mother hit him on the head with an iphone ‘causing a cut on my forehead and a black eye on my left eye’.[14]
[14] Father’s affidavit filed 31 July 2020 at [20]
(b)In January 2016 the father says that the morning following a night out with friends, the mother dragged him out of bed by the feet. Whilst on the floor he alleges that the mother kicked him and verbally abused him. They continued to wrestle on the floor and as the father tried to take the car keys that were hanging around the mother’s neck on a lanyard the mother was ‘injured on [sic] above her eye.’[15]
[15] Father’s affidavit filed 31 July 2020 at [25]
(c)In late 2016 the father says the parties were celebrating the mother’s birthday with friends. He says that the mother called him a ‘dickhead’ and pushed him. He retaliated by pushing the mother to the ground. He decided to leave the house and stay with his parents in City U. The mother says that this incident occurred on 17 January 2017, that the parties argued and the father left. When the mother followed him, she says the father head-butted her. The mother called the Police but the father had left before they arrived having ‘driven himself drunk’ to the train station. She says the police found him at the train station and confiscated his car keys.
(d)On 10 August 2017 the father says the mother came to his home and started going through his phone and found that he was using the Tinder dating app. He alleges that the mother punched him in the head several times[16] and the paternal grandmother was forced to intervene. He says he sustained marks on his face but did not call the police. Later that evening the father says the mother telephoned him and told him to come and collect his personal chattels or she would throw them onto the street. When he attended the mother’s residence she was verbally abusive calling him a ‘looser’ and ‘piece of shit.’ The mother threw household objects at him including a glass cup and smashed a painting over his head. When she tried to hit him a second time with a painting he grabbed it and the mother punched him in the head. The father retaliated and hit the mother in the head. When the mother started to cry he apologised and left. Documents produced under subpoena by NSW Police state the mother then called the police and told them that she had wanted the father to leave because ‘she was of the opinion that he had been drinking.’ The mother was asked to provide a statement but declined. ‘Police were unable to see any visible injuries to the VIC [the mother]. [17]
[16] Father’s affidavit filed 31 July 2020 at [38]
[17] Tender Bundle, page 49
(e)On 10 September 2017 the mother alleges that the father punched her in the back of the head ‘multiple times and [tried] to strangle me. He also threatened to kill. I sustained bad bruising to my body and called the Police.’ Seven days later on 14 October 2017 the mother attended the GP After Hours Clinic at V Hospital. Annexed her trial affidavit is a consultation summary. She complained of,
‘bruising on shoulders, right arm, back of head, swollen under jaw, blurred vision for past few days, subsiding headaches on/off.’
(f)On 4 October 2017 there was an incident at the mother’s residence when the father returned the children to the care of the mother. The COPS entry reads as follows:
‘The accused said, “I’m resigning from my job in a few weeks. I’ve stopped smoking and I want the kids 50-50.” The victim said, “I understand what you’re saying but I think the kids are in a good routine as it is.” The accused said, “It’s not a good routine, I want them 50-50.” ………………The accused began to become upset and said, “I don’t think that’s fair. I don’t know why you’re doing this to me, I don’t know why you’re not letting me have my kids.” ………….He said, “If I have to I’ll take you to mediation, I had an appointment yesterday with Law access.” The victim said, “I had an appointment with them yesterday in the afternoon. ……… You’re an alcoholic. Your drinking is out of control and I can tell you’ve being drinking already. I don’t think your stable enough to have them any more than what you are; I don’t think its good for the kids.” The accused began to pace up and down, walking around the back patio waving his arms around and yelling. The accused said, “You can’t do this to me, you can’t not let me see the kids.” The victim then told the accused to leave her premises, and began to walk towards the back door, its alleged that the accused stepped in front of her making her unable to get back into the house. The victim said, “You need to let me in my house.” The accused started screaming, he said “I don’t understand I don’t see why you’re doing this I want to see my kids more.” The victim called out to one of the children inside and the accused kicked the back wall of the house twice causing the victim to become scared. The victim said, “I really want to you go now and let me back in the house. I want you to go now and we can talk about this when your calmer, because clearly look at yourself you’re not stable and this is what I’m worried about.” The victim made her way inside and the accused walked around the side of the back window and yelled, “you’re fucked.” The accused picked up a medium sized folded closed [pram] from the patio floor, he is alleged to throw the pram at the glass back window causing it to hit the glass and smash. The accused is alleged to have been screaming and then left through the back gate.’[18]
The father was charged and convicted of malicious damage. A final apprehended violence order was made on 12 October 2017 for the mother’s protection from the father for a period of 12 months.
(g)On 18 January 2018 there was altercation between the parties and the paternal grandmother at the father’s home. The mother left with a guitar and the father called the police. The father says that he stood in front of the mother’s car and signalled her to stop. He deposed,
‘The mother did not stop and hit me with her car, I fell onto the bonnet and I had to grab on to the sides of the windscreen to stop from falling off the car. Ms Sebourne proceeded to accelerate significant while travelling south on W Street.’[19]
Records produced by NSW Police contain the following report,
‘..Ms Sebourne was about to drive away in her vehicle and Mr Sebourne ran out of the house and climbed into Ms Sebourne’s vehicle in an attempt to retrieve the guitar. Ms Sebourne drove at very low speed approximately 20 metres around the corner before coming to a stop. Police who were patrolling nearby observed Mr Sebourne climb onto the bonnet and Ms Sebourne’s reaction………….. Ms Sebourne was very upset at being pushed out of the house. Police informed Ms Sebourne that in their opinion the minor use of force was reasonable and that no injuries could be observed and that a charge in relation to a trespass was not an appropriate course of action. Ms Sebourne was warned that such behaviour in the future could constitute an offence and was warned re same……………… In relation to Ms Sebourne driving off with Mr Sebourne on top of the vehicle, Ms Sebourne’s version that she was worried about blocking traffic behind her and causing a collision pulling into the nearest side street at very low speed (approximately 10kmph) warranted a warning rather than further formal action.’[20]
(h)On 10 October 2018 the father attended the mother’s home at her request to drop off a game. The father wanted to discuss the mother’s upcoming move from Suburb K to Suburb N. The mother did not want to discuss the issue in front of the children and told the father to leave. The father persisted and the mother alleges that the father became angry, raised his fist at her and started to call her names. The mother called the police and the father was arrested for contravene AVO. The mother’s son P witnessed the incident and provided a statement to police.
(i)On 12 October 2018 the father pleaded guilty and was called up on his previous section 10 bond. He received two conditional release orders (one for 12 months and the second for 6 months). The apprehended violence order was extended to 11 October 2020 and varied to include an order for no contact (communicate by via email only).
[18] Tender Bundle, pages 48-49
[19] Father’s affidavit filed 31 July 2020 at [61]
[20] Tender Bundle, page 47
While there have been no further incidents of physical violence during the currency of the apprehended violence order, the level of hostility in the communications between the parties has not abated. The mother gives evidence of text and email exchanges sent by the father which demonstrated the ongoing tension between the parties and on occasion offensive language and insults by the father. The mother annexed to her trial affidavit and tendered in evidence examples of these communications:
(a)On 16 October 2018 following his conviction for contravene AVO, the father gave a letter to the children to give to the mother which included the following commentary:
‘I don’t ever want to see your face again, I don’t ever want to talk to you in person again. You are dead to me. Do not approach me or come to the front door of my house. Do not txt or call me, you are blocked. Anything other I will see as harassment and will call the police myself, you may mail or email me to reply to this letter or to sort out issues with the children. I am glad you are moving, won’t have to avoid going near your street or worry about running into you at the shops. I propose that we take X to football on alternate weekend I will take him next week. You can pick him up from the front of my house the next week and do on. Also, as of today, you are also officially old, as well as fat, ugly and narcissistic.’
In cross-examination the father conceded that it had been inappropriate to involve the children in the way he had by asking them to deliver the letter to the mother.
(b)In an email exchange some 7 months later which started out with a request from the mother to swap weekends and then the father saying he could consider her request if she dropped off a USB of his photos from 2017 and degenerated with the father writing,
‘I hope you put all the photos I asked for in there otherwise I did not agree to swapping weekends.’ [21]
(c)On the 10 December 2019 as the parents squabbled about the arrangements for Christmas Day in his email to the mother the father wrote,
‘And on the topic of future events, let me make this clear to you. That is never, ever going to happen. Once when we first split that is exactly what I wanted, I wanted to be friends and amicable and split everything 50-50, and how I tried to make things work with you, but the things you have done and said since we have split, have hurt me so deeply that don’t think I can ever come back from that. The things I wrote in that letter still stand today. I do not want to ever have anything to do with your ever again. I will work with you to raise our children in the best way that we can, but I cannot ever see myself agreeing to spend one minute of my time with you.’[22]
[21] Exhibit B
[22] Mother’s affidavit filed 15 July 2020, Annexure I
In cross-examination it was clear that the father continued to view himself as a victim entitled to better treatment, blaming the mother on the basis that her behaviour drove him to engage in the earlier referenced activities. The father has minimal insight into the toxic effect he has had on the mother. While he clearly cares for his children, he unfortunately loses child focus and it becomes more about self-justification, his rights and entitlements, than the best interests of the children. An email that the father sent to the mother on 23 October 2018 prior to court proceedings is particularly illustrative of this point. He wrote,
‘YOU can take ME to court, and PROVE to the judge that them staying over on a Tuesday night is bad idea. You can try to provide that I am a bad father. I may have been a not very good husband for you (even though you were not a very good wife) but I am a great dad. All I have ever wanted is to spend as much time with them as you, and to be involved in decisions like schooling and their health.’[23]
[23] Mother’s affidavit filed 15 July 2020, Annexure D
As the Family Consultant observed the conflict between these parents existed during the relationship and has continued post separation though the dynamic has changed over time. The Family Consultant observed,
‘………..conflict between parties extended beyond situational and reactive conflict, into violence that involved physical aggression, injury, apparent threats (of suicide), and alcohol abuse. There are some significant clinical indicators that suggest a heightened risk of ongoing and significant violence. However, the degree of fear and anxiety as impacting on the mother is also a point of evaluation. It is noted that the mother has been reactive and violent towards the father as well. It is also noted that the mother seeks orders that suggests the father attend her house when exchanging the care of the children. This is perhaps a more positive factor in terms of the ongoing shared parenting arrangement. The report writer also notes the father’s acknowledgement and apparent remorse about his instigating part of such violence, and also noted the father’s insights gained from attending a ‘taking responsibility’ type course regarding abusive behaviour. Additionally, it is noted that there have not been any incidents of violence more recently. The father appears to fall into the cohort of family violence offenders that are (statistically) perhaps most likely to change their behaviour and eliminate behaviours of control and violence from their interactions with the other parental party.’[24]
[24] Family Report at [98]
I find that the mother was a victim of family violence in the form of physical violence perpetrated against her by the father at the time of separation and that the mother has also been ‘reactive and violent’[25] towards the father.
[25] The Family Consultant reports at paragraph [40] of the Family Report that the mother ‘described one occasion of hitting the father on the head with a phone (when she discovered he was on the Tinder dating app), and also of ‘slapping him on the face’ in ‘self-defence’. The mother also voiced that she was ‘angry’ with the father for destroying the relationship (dating and being on Tinder) and got in his face when the father’s aggression towards her occurred.’
I find that the email and letter correspondence sent by the father and referred to above, and admitted to by the father, fall within the definition of family violence.
Both parents appear to recognise and I find that the children have been exposed to stress and pressure associated with the parental dispute/litigation.[26]
[26] The Family Consultant opines at paragraph [104] of the Family Report that ‘The children’s experience of separation has been one of a constant state of flux and change, as punctuated by the parental conflict, the parental separation, the parental parties attempting to reconcile only to separate again, and the changing relationship of the mother. The children are also aware of the Court dispute and the conflict, and the family violence between their parents.’
Mental Health
Both parties allege mental health concerns for the other parent but it was not an issue that was pursued at trial.
The mother alleges that the father has longstanding issues with depression and says that he has made suicidal statements to her. In 2015 the father attended upon his general practitioner for a mental health review. His general practice notes indicate that the father had concerns for his mental health with ‘suicidal ideation but no active plans’.[27] The father was prescribed Pristique. The notes also contain an ‘acknowledgement’ by the father of ‘marijuana use and excessive alcohol use. He was referred to the Region M Local Health Network for opinion and management of his depression and prescribed Sertraline.[28]
[27] Family Report at [91]; Tender Bundle, page 1
[28] Exhibit E and Tender Bundle pages 1, 3, 6-7, 16-18.
There was no evidence about the father’s current mental health functioning, nevertheless, it does not appear that either parent currently presents a risk to the children arising from reasons of their mental health.
Issues raised by the father
The father says that the mother’s chronic fatigue should be a source of concern for the Court as it impacts on her ability to care for the children. He deposed,
‘During our relationship, the mother’s chronic fatigue resulted in her requiring additional rest, such as regular naps in the afternoon.
I would care for the Children when the mother was resting, or get out of bed to attend for the children when she did not feel up to getting out of bed. I would also assist the mother get out of bed as the Chronic Fatigue would make it difficult for her to do so.
……..
I am concerned that the mother may be shifting the responsibility to complete chores and household tasks to the Children. X has explained to me that he often completes the washing of the dishes, taking out rubbish, general cleaning of the house and the laundry.’[29]
[29] Father’s affidavit filed 31 July 2020 at [165]-]166] & [168]
Neither the father nor the children raised this concern with the Family Consultant and it was not the subject of any cross-examination with the mother.
The mother confirms that she still suffers from chronic fatigue from time to time but is able to manage the symptoms. She denies that the children have ever had to undertake all the household chores because of her illness. She deposed,
‘They do help out and have chores that they earn pocket money for.’[30]
[30] Mother’s affidavit filed 15 July 2020 at [142]
Following a review of the mother’s medical records the Family Consultant wrote,
Medical notes regarding the mother suggest a history of adrenal fatigue, chronic infection, hormonal issues, previous anaemia, panic attacks, and fibromyalgia. 2015 notes state a history of Generalised Anxiety Disorder and panic attacks, resulting in a mental health care plan, and reports of ‘feeling tired all the time’ (12/2015). An anxiety disorder re psycho-social stressors and the husband was documented in 2017.[31]
[31] Family Report at [93]
I am satisfied that the mother’s diagnosis of chronic fatigue does not currently present a risk to the children.
The father complains that the mother has ‘advocated for the children not to be vaccinated’[32] and he disagrees with her view. Clearly, the mother has been more than an advocate, she has been an ardent practitioner. None of the children have been vaccinated save for X who received a tetanus shot when he cut his finger several years ago. The children have also been hospitalised for whooping cough.
[32] Father’s affidavit filed 31 July 2020 at [159]
It has been a point of contention between the parties particularly when the father attempted to have the children vaccinated without the mother’s consent. The father says the mother’s response was to threaten the suspension of his time with the children if he sought to make any further decisions in relation to medical issues for the children.
The mother deposes to making an ‘informed choice’ about immunisation having undertaken her own research. The father says it was a decision taken by the mother with his tacit approval because he wanted to ‘keep the peace.’
On this issue the Family Consultant opined,
In evaluating those specific issues that have arisen such as the mother’s beliefs regarding the health care of the children and the father’s opposing views, with the issue regarding the vaccination of the children being the most overt, while the report writer has a strong personal opinion on this matter, it is discussed in this evaluation primarily because of the differing views of the parents. It is obviously an issue of dispute and dysfunction (in shared-parenting) because the father attended the GP to have the children vaccinated despite knowing the opposing preferences of the mother. This in itself is a moment of dispute that directly impacted upon the children. While the report writer would suggest not vaccinating children is an ill-informed act, the report writer would equally highlight that it is a legitimate and legal right of a parent (to not vaccinate their children). It is, however, highlighted that the Royal Australian College of General Practitioners publicises the guidelines that “Immunisation is recommended from birth for all children, and at particular ages throughout adult life, according to Australian Immunisation Handbook”. [33]
[33] Family Report at [102]
The father complains that the children are excluded from activities as a result of their vaccination status. The mother denies and says the only issue is that she is not entitled to the after school care rebate. The mother adduced no evidence that the children suffer with allergies or any other known contraindication to vaccination.
Neither the father nor the mother is medically qualified nor hold any particular expertise in respect of vaccination or childhood illnesses. The mother vaguely referred to having conducted research into the issue but provided no evidence so the Court is unable to assess the depth or quality of that research. No evidence was provided to indicate that any of the children concerned have any particular susceptibility to illness or has any unusual disability which would contraindicate vaccination.
The father did not seek a specific order for the children to be immunised rather he submits the mother’s stance is evidence of her poor decision-making and a relevant consideration in determining the allocation of parental responsibility.
Issues raised by the mother
The mother says that the father’s parenting capacity has been compromised by reason of historical drug and alcohol misuse. She seeks a restraint upon the father consuming alcohol 12 hours prior to and during any period the children are in his care.
The mother says that the father attended drug and alcohol counselling during the relationship but would ‘consistently relapse.’[34] She deposes that many of the instances when he was violent, he was under the influence of alcohol including the incident on 4 October 2017.
[34] Mother’s affidavit filed 15 July 2020 at [29]
She alleges that the father is still drinking excessively and says the children report the father being hungover and ‘sleeping all day or sleeping in.’[35] She told the Family Consultant,
‘………the CDT results suggested the father may still be drinking alcohol to excess, and also described that the father has even recently acted as if he was on drugs or drinking, being ‘agitated’ and ‘not right’.[36]
[35] Mother’s affidavit filed 15 July 2020 at [31]
[36] Family Report at [43]
The father says he stopped using cannabis in August 2018 and does not drink alcohol to excess. He says he continues to drink socially but not when the children are around. He is supported in his contention he says by the hair analysis and the CDT tests he has undertaken during the proceedings.
In evaluating the allegations and risks associated with the father’s drug and alcohol consumption the Family Consultant wrote,
‘……………., it is noted that the existence of family violence does appear to involve matters regarding, or in the context of, the father’s abuse of alcohol. It is also noted that CDT testing and hair follicle testing has been completed by the father. It is the report writer’s understanding that the alcohol screening results of the father support his suggestions that his use and abuse of alcohol has diminished since the parental separation and the conflict between parties. The report writer would strongly suggest that the father continue to curb his use and abuse of alcohol and drugs, particularly if spending time with the children, and particularly if exercising parental responsibility.’[37]
[37] Family Report at [100]
The children did not raise issues of drugs or alcohol when in the father’s care. There is no independent evidence to support that during recent times the father has been affected adversely by alcohol when spending time with the children. The testing conducted in May 2019, June 2020 and August 2020 show that the father is not drinking to excess. The hair analysis in June 2019 was negative for illicit drugs.
I am not satisfied to the requisite standard that the father’s drinking impacts on his care of the children, whether they are living with the father or spending time with him.
The mother seeks an order restraining the father from bringing the children into contact with his brother Mr J. The mother says that in 2014 Y disclosed that Mr J had ‘poked his bum.’[38]
[38] Mother’s affidavit filed 15 July 2020 at [67]
I note that in interview with the Family Consultant, Y was specifically asked about his Uncle Mr J and ‘replied positively as well (he is fun, and nice).’[39]
[39] Family Report at [77]
The father said he was at work at the time of the incident but had spoken with his brother about it. He did not believe the allegation but was prepared to accept the restraint as sought by the mother. He says that his brother lives in City C and the children see him but they are never left unsupervised in the father’s presence.
I now turn to the additional considerations.
Additional Considerations: Section 60CC(3)
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.
In relation to the children’s views the Family Consultant wrote,
‘The older two children’s expressed views were that they valued and enjoyed time spent with the father, and did not have any strong opposition to living with the mother, and spending (close to equal) time with the father. The children X and Y made the unified remarks about spending the additional Tuesday night with their father, as opposed to returning to their mother at 8pm. The report writer suspects that this view was primarily based on very practical and reasonable preferences, even if the view was also expressed to them by the father. The youngest child Z was not thought to put forward a strongly expressed view, although the report writer suspects that the child has a strong and dependant attachment to her mother, but does enjoy spending significant time with her father.’[40]
[40] Family Report at [103]
The mother submits that little weight can be ascribed to the wishes expressed by the child Y as they have been strongly influenced by the father.
Y told the Family Consultant he “would like more time at Dad’s house”. When asked ‘why’, the child replied that ‘it would be more ‘even’, and more ‘fair’.’[41] In cross-examination the Family Consultant agreed that he is always concerned when a child says that. I do note that the children had spent the evening prior to the Family Report interviews with the father.
[41] Family Report at [77]
In relation to the child Z who according to the Family Consultant,
‘is only just now growing out of an age where-in the primary attachment to her mother is at a vital and pivotal moment of development. It is likely that the child Z would miss her mother under such an arrangement, even if she was supported by her older brothers, who in turn wouldn’t miss time with their mother as much’. [42]
[42] Family Report at [106]
I do not understand either parent to be proposing that the children be separated or spend different periods of time with each parent.
Section 60CC(3)(b), the nature of the relationship of the child with each of the child's parents
The evidence of the Family Consultant is of three children with a bonded relationship with each of their parents.
In relation to the mother and maternal family the Family Consultant wrote,
In observations of the interactions between the mother and the subject children, with the mother’s older two children (Ms Q and P) also present, as well as the mother’s partner Mr O also present, it was observed that the subject children appeared to be at ease, natural, and comfortable in the presence of the mother (and others). The three subject children were noted to be talkative, often smiling or laughing, and were generally in a happy mood during the observations. Throughout the entire observations of interactions the mother remained connected to the children and was responsive to their needs.[43]
[43] Family Report at [78]
In relation to the father and paternal grandmother who had accompanied the father, the Family Consultant wrote,
‘Upon the formal observations, the children were casual and comfortable when their father entered the play-room, saying “hey Dad”. There was no degree of physical affection or greeting however it was noted that there was before, when the children saw the father prior to the observations.[44]
‘……..When the father entered the room, he smiled and greeted the children appropriately and all of the children responded to the father happily. The paternal grandmother moved from child to child, greeting them and hugging them, and each child reciprocated the physical affection automatically.’
And
‘Throughout the entire observations the father was observed to be child centred and focussed on the needs of the children, and was always responsive to the children’s attempts to gain his attention. This was also noted to be true and observed in the interactions of the paternal grandmother toward the children. As the interactions continued (for about 30 minutes) there was a constant degree of naturalness and comfort (of the children), and at times there was laughter and automatic cheers and smiling observed of the children………..’.[45]
Throughout the entire observations of interactions between the father and the children, there was nothing of concern, or any criticisms of the father’s interactions noted by the report writer. Upon the cessation of the observations, the children comfortably separated from the father to return to the care of the mother, and there was no separation anxiety observed in any of the children.[46]
Section 60CC(3)(c) - the extent to which each of the child’s parent has taken, or failed to take, the opportunity to participate in making decisions about major long- term issues in relation to the child; and to spend time with the child; and to communicate with the child.
[44] Family Report at [84]
[45] Family Report at [89]
[46] Family Report at [90]
Both parties have taken every reasonable opportunity to spend time with the children and to communicate with them. They have also sought to participate in making decisions about major long term issues in relation to the child. Indeed, their mutual determination to do so has been a major source of conflict between them.
Section 60CC(3)(ca) - the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
In addition to her income from employment the mother is in receipt of Family Tax payments and a Disability Support Pension from Centrelink.[47] She says that the father has not been assessed to pay child support but then also says that there are some arrears of child support for the financial year 2018/2019.
[47] The basis upon which the mother receives a Disability Support Pension was not disclosed to the Court.
The father says he pays child support of $37 per week pursuant to a child support assessment. He agreed that he made an application to Centrelink for Family Tax Benefit on the basis that the children were in his care more than 35% of the time. He was successful in that application and as a consequence the mother accrued a debt of $5,000 which was subsequently waived.
The father contends that the mother’s prime motivation in opposing an equal time arrangement is a financial one because it means that she will suffer a reduction in her benefits. In cross-examination with counsel for the mother, the father glibly rejected the suggestion that the mother was doing the lionshare of providing for the children, saying ‘I don’t know what the lionshare of the children was.’
I consider the father’s allegation that the mother is motivated by financial reasons entirely disingenuous in the circumstances where he contributes a meagre $12 per week per child for their maintenance.
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 he or she has been living.
In the event that the status quo is not retained, changes will occur if either party’s proposal is adopted. Both parties assert that there proposal represents an insignificant change that will not impact upon the children.
The children have lived in the primary care of the mother since these parties separated. In his text communication the father makes it clear that he feels that he was coerced by the mother to accepting an arrangement he did not genuinely believe was in the children’s best interests.
Although I have decided that the children should remain primarily in the mother's care, in my opinion, the mother would struggle to support any arrangement that involved the children living with the father at a greater frequency than this.
The parties have endured a very conflictive relationship. The text communication evinces the strong views the father holds of the mother that she is a liar, demanding, manipulative, controlling, narcissistic and bigoted. I do not find that she is any of those things. I find, instead, that many the father’s criticisms of the mother were spiteful and unwarranted.
Overall, and on balance, this consideration clearly favours the mother's proposal over the father's proposals.
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 father lives in Suburb K and the mother in Suburb N, a distance of approximately 4.5 kilometres or 8 minute drive.[48] The children attend Suburb K Public School which is 4.5 kilometres or 7 minutes drive from the mother’s residence and 2.7 kilometres or 4 minutes drive from the father’s residence.
[48] Family Report at [6]
Both parties hold driver’s licences and have access to a car.
There are no practical difficulties or expenses that would substantially impact upon the children’s time with either of their parents. Notwithstanding the conflictive nature of their relationship, the mother proposes that changeovers occur at their respective residences.
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; and
Section 60CC(3)(i) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Both parents appear able to meet the children's day to day needs. The mother also has the support of her partner Mr O though he does not live with her.
Regrettably, however, these parties have been incapable of co-parenting in an appropriate, child-focused manner and there appears to be limited capacity for change.
Section 60CC(3)(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.
There is nothing I wish to say under this consideration.
Section 60CC(3)(h) - if the child is an Aboriginal child or a Torres Strait Islander child:
This is not a relevant consideration.
Section 60CC(3)(j) & (k) -any family violence involving the child or a member of the child’s family.
I have dealt with this consideration at length under s60CC(2)(b).
The apprehended violence order in place for the protection of the mother was due to expire on 20 October 2020.
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
As observed by the Family Consultant, the fundamental issue in this matter is the,
‘co-parenting relationship is hindered by mistrust, differences of opinions, and animosity, and these facets are compounded by the background of conflict and family violence.’
Court orders are not likely to address the dynamic of the parents’ relationship. It will continue to be problematic and disagreements and arguments will continue to occur as new issues emerge or old issues re-appear.
Parental Responsibility
Parental responsibility relates to decision making and not to the amount of time a child will spend with each parent. Section 61DA requires the court to apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility for the children.
Section 65DAC applies whenever a parenting order provides for shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the children (or a person who lives with a parent of the children) has engaged in:
a)Abuse of the children 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.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the children for the children’s parents to have equal shared parental responsibility.
The relevance of the presumption of equal shared parental responsibility, when it does apply or is found to apply, is that the Court is then obliged to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the best interests of the child or reasonably practicable, the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents. (See subsection 65DAA of the Act).
Given the history of family violence between the parents which I have considered earlier in these Reasons, I am satisfied that the presumption of equal shared parental responsibility does not apply. The question then is, if the presumption does not apply whether an order should be made for shared parental responsibility?
The mother seeks an order for sole parental responsibility, the father an order for equal shared parental responsibility. An order for equal shared parental responsibility requires consultation by the parents in relation to any relevant major long-term issue and requires that the parties “make a genuine effort to come to a joint decision.”[50]
[50] Family Law Act 1975 (Cth) s.65DAC(3)(b).
In Oscar & Traynor,[51] Murphy J noted:
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for their children – particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
…the greater the degree of mistrust, lack of communication, disrespect and dysfunction in the co-parenting relationship the greater the indication that an attempt for those parents to equally share the responsibilities (and, importantly, actively carry them out) is unlikely to be in the children’s best interests.
A finding, then, that the parties are utterly incapable of doing so [to make joint decisions, consult and attempt to reach agreement] and that there is no reasonable prospect of them doing so in the future, would appear to lead to a conclusion that equal shared parental responsibility is contra-indicated in the best interests of the children and all the more so if it be accepted that high conflict is generally antithetical to the best interests of children.[52]
[51] [2008] FamCA 95.
[52] Ibid, [256], [260], [254].
At paragraph [105] of the Family Report, the Family Consultant wrote,
The children would also benefit if the Court were able to assist the parents to come to agreements regarding the health care and immunisation of the children. This is evaluated by the report writer to best be done under a shared and equal parental decision-making framework, and it is hoped that this can occur effectively, and in a child-centred way.
And at paragraph [109]:
Shared parental responsibility is reservedly supported by the report writer as the father appears to have addressed the concerns regarding his responsibilities and parenting capacities, and also due to the considerable time that the children are recommended to spend with the father. The ability of parties to come to agreements regarding the vaccination, diagnosis (gluten intolerance), and medical treatments of the children during the Court process, would serve to give an indication of both parties’ abilities to exercise shared parental responsibility in a collaborative, respectful, and child focussed manner.
In response to questions from the Bench, the evidence of the Family Consultant was that shared parental responsibility can be protective when one or both parties make poor decisions ‘in the sense of a back-up’. However, Mr H went on to say that it also depends how the shared parental responsibility is exercised by the parties. Notwithstanding the denigration of the mother by the father that is ‘clearly evident and obvious’ he did not get the sense that the father was ‘doing it in front of the children.’
The parties have generally been unable to communicate in a constructive or effective way about issues concerning the children. There have been exceptions and the father provides some evidence about agreements reached around additional time and time on special occasions with the children, payment of excursions fees.[53] However, both have made medical appointments about matters relating to the children without involving the other. They appeared to have engaged in a ‘tit-for-tat’ approach to decision making in respect of major long term issues: for example, the father continues to pursue the issue of the children’s immunisation in the face of the mother’s anti-vaxxer stance and the mother refuses to entertain the father’s concerns about the children’s lack of immunisation. They also cannot agree on the High School that X should attend next year.
[53] Father’s affidavit filed 31 July 2020 at [123-131]
Both have retained or threatened to retain the children in their care if the other did not agree to minor or one-off variations in time. Neither parent is able to accommodate views held by the other which may fall outside of their own rigidly held opinions.
However, I place significant weight on the opinion expressed by the Family Consultant in cross-examination that shared parental responsibility can be ‘a back-up’, a protective factor for the children from poor decisions of one parent such as the mother’s decision in relation to immunisation. I am satisfied that this is a case where the children may be at risk from poor decision-making by one or other of the parents and that such a back-up is necessary and in the best interests of these children. Therefore there will be an order for equal shared parental responsibility.
Consideration of Equal Time or Substantial and Significant Time
Having made the finding that it is in the children’s best interests for an equal shared parental responsibility order to be made, I am required to consider the children spending equal time with the parents and in doing so address the statutory pathway as set out in s.65DAA(1) – (5).[54]
[54] Whether an order should be made for equal time or significant and substantial time must be determined on the basis of what is in the children’s best interests.
The father proposes that there be orders for equal time which would involve the children spending four days with the father in week one and three days in week two and for there to otherwise be a sharing of holidays and special occasions.
The mother proposes there be orders made that the children live with her and spend significant and substantial time with the father specifically four nights a fortnight. The mother agrees to the sharing of holidays and special occasions although she seeks such time be week about in the Christmas holiday period while the father proposes block time. The father’s proposal accords with the recommendations contained in the Family Report of Mr H.
The mother has been the children’s primary carer for all their lives.
During the marriage the father was engaged in full time employment as a tradesman. When the parties moved from Town B to City C, he worked part-time as a tradesman while he studied part-time at the University of City C.
The mother is highly critical of the father and his parenting. When speaking to the Family Consultant, in her trial affidavit and in cross-examination, the mother struggled to find a good thing to say about the father or his parenting. The mother alleges that the father is unreliable, ‘malicious’ and unable to meet the physical, psychological and emotional needs of the children.
Similarly, the father found it difficult to give the mother any credit for her parenting role and the meaningful relationship he enjoys with the children. The Family Consultant found the children to be ‘healthy, well-adjusted and resilient [children] in the face of such flux and change.’ [55]
[55] Family Report at [104]
What is clear from the children’s interviews with the Family Consultant is that they have no issue with either of their parents or their approaches to parenting and that they love, respect and enjoy the time they spend with both of them.
While there are a number of factors which would tend to support an equal time arrangement such as the reasonable proximity of the parents’ residences to each other and to the children’s schools and the close and loving relationship the children enjoy with each parent, I am of the view that equal time is not in the children’s best interests for the following reasons:
a)All three children need to be protected from the parental dispute and the on-going risk of psychological and emotional harm;
b)There is evidence before the Court to suggest that Z has a more attached relationship with the mother and would struggle with separation from her mother for extended periods;
c)The children have never been in an equal time arrangement since the parents separated in 2016 and their brother P has been a consistent presence in the mother’s household;
d)The communication difficulties the mother and father have with each other have prevented them from making decisions about the children’s care. It is unlikely that they would be capable of exchanging information in a helpful and supportive manner.
e)The co-parenting relationship has at times been quite dysfunctional and would, in my view be incapable of managing housekeeping issues and dealing with the various unpredictable changes that arise, such as social events, illness or appointments, without conflict.
In summary, the cumulative effect of the historical family violence, the parties’ lack of communication, their antipathy and negativity towards each other and the father’s expressed intention in email communication to have nothing to do with the mother would suggest that an equal time parenting arrangement would be extremely challenging for these parties and more importantly for these children.
I am therefore of the view that it is in the children’s best interests that orders be made for them to live in the primary care of the mother which is the arrangement that been in place in separation and which is supported by the Family Consultant and for them to spend significant and substantial time with the father. The next issue is how that time should be structured.
The Family Consultant in his recommendations proposes that the children spend two nights (Monday/Wednesday) in week one and four nights (Saturday/Wednesday) in week two. Alternatively he proposes that the children are returned to the mother on Tuesday evening in one week. I understood the evidence of the Family Consultant to be that in splitting the time in this way rather in a block period, the children would not be away from either parent for too long. This is particularly relevant for Z who is only 6 years old.
When talking to the Family Consultant,
‘The children X and Y made the unified remarks about spending the additional Tuesday night with their father, as opposed to returning to their mother at 8pm. The report writer suspects that this view was primarily based on very practical and reasonable preferences, even if the view was also expressed to them by the father. The youngest child Z was not thought to put forward a strongly expressed view, although the report writer suspects that the child has a strong and dependant attachment to her mother, but does enjoy spending significant time with her father.’
The mother is proposing a reduction in the children’s time with the father during the term to 4 days a week and an increase in the time during school holidays. I see no basis for a reduction in time.
In these circumstances I am of the view that orders should be made for the children to spend time with the father in each alternate week in week one from after school on Monday to the commencement of school on the Tuesday and in week 2, from Saturday (9am) to the commencement of school on Wednesday.
The parties agree there should be a sharing of school holidays and special occasions.
The mother proposes that the children spend time with the father on a week about basis in the Christmas school holidays. The father seeks that the children spend time with each of their parents for half of each school holiday period on an alternating basis each year. The evidence of the Family Consultant was that week about has some merit as a transitional arrangement but the downside would be the increased movements and changeovers for the children. Holidays are a different more relaxing time where the ‘routine of life is less complex’ and parents like to go away which would not be possible if there was to be a changeover every 7 days.
Given the children’s ages, I am satisfied they will enjoy the opportunity to have an extended holiday with each parent over the Christmas holidays and will make orders as proposed by the father.
In his report, Mr H recommended that the parties not denigrate the other in the hearing or presence of the children, and that both parties be restrained from the consumption of illicit substances or be intoxicated with alcohol when caring for, or spending time with the children.
Mr H also recommended that the children be able to freely communicate with each parent. I agree and there will be orders to that effect together with orders in relation to the exchange of information as well as access to medical and education information.
Other Orders
I have made an order for the parties to share parental responsibility. As I indicated to counsel for the mother, I do not consider it appropriate to make any orders around the issue of immunisation as there is simply insufficient information for me to do so.
Similarly I do not propose to make any orders in relation to the school X attends in 2021. His primary residence will be with the mother and that is likely to determine the school he attends. Any out of area application would require a written application that meets the NSW Department of Education criteria and approved by an out of area placement panel.
I certify that the preceding one hundred and seventy four (174) paragraphs are a true copy of the reasons for judgment of Judge Costigan
Date: 20 November 2020
[49] Family Report at [99]
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