SHEARAN & YEARWOOD

[2021] FCCA 569

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEARAN & YEARWOOD [2021] FCCA 569

Catchwords:
FAMILY LAW – Parenting – young children – strong status quo originally with mother – children now with father since August 2020 – practical relevance of mutual allegations of violence towards children.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2), (3), 61DA

Evidence Act 1995 (Cth)

Applicant: MS SHEARAN

Respondent: MR YEARWOOD

File Number: LNC 561 of 2020

Judgment of: Judge McGuire

Hearing dates: 17, 18 & 19 March 2021

Date of Last Submission: 19 March 2021

Delivered at: Launceston

Delivered on: 24 March 2021

REPRESENTATION

Counsel for the Applicant: Mr D Lewis

Solicitors for the Applicant: Rae & Partners (City B)

Counsel for the Respondent: Ms T Freeman

Solicitors for the Respondent: Bishops

Counsel for the Independent Children's Lawyer: Ms C Gibson

Solicitors for the Independent Children's Lawyer: Charmaine Gibson

ORDERS

1. That the parents have equal shared parental responsibility for the children X born in 2015 and Y born in 2016 (“the children”).

2. That the children live with the father.

3. That the children spend time with the mother as follows:

   (a)Each second weekend between Friday at 5.00 p.m. and Sunday at 5.00 p.m. but extending to Monday at 5.00 p.m. in the event of a public holiday or a student free day;

   (b)For one half of each gazetted term school holiday being the first half of such holidays from the first Friday at 5.00 p.m. until the second Saturday at 12.00 noon;

   (c)On a week about basis during the Tasmanian gazetted summer school holidays commencing the first week and each alternate week thereafter in 2021/2022 and each alternate year thereafter and commencing the second week and each alternate week thereafter in 2022/2023 and in each alternate year thereafter with the changeovers to occur on Fridays at 5.00 p.m.;

   (d)Such other times or variations of the above as may be agreed between the parents from time to time.

4. That for the purposes of these Orders changeovers occur at the appointed times in the car park of the McDonalds restaurant in City B.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 561 of 2020

MS SHEARAN

Applicant

And

MR YEARWOOD

Respondent

REASONS FOR JUDGMENT

Applications

1. These are parenting proceedings in respect of the parties’ two children namely X born in 2015 (aged 6 years) (‘X’) and Y born in 2016 (aged 4 years). The applicant is the mother.  She asks for orders generally for equal shared parental responsibility with the father but that the children live with her.  She proposes that the children spend each second weekend and half school holidays with the father.  She seeks orders in respect of time for the children on special days together with other discrete and injunctive orders.

2. Interestingly, and perhaps significantly, the father asks for orders which mirror those of the mother.  That is, he also proposes an order for equal shared parental responsibility in the parents.  He argues for an order that the children live primarily with him but spend each second weekend and one half of school holidays with the mother.

3. By the time of closing submissions, the mother was being slightly more generous in her proposals for school holidays being that the children spend nine nights with the father being slightly more than half of such holidays. 

4. The Court has had the benefit of an Independent Children's Lawyer ‘the ICL’.  In both her opening and closing addresses the ICL, Ms Gibson, recommended that the children live with the father.  It is fair to say, however, from Ms Gibson's perspective the balance in this matter was a very fine one where she was able to find both positives and negatives in the cases of each of the parents.

Background

1. The mother is 36 years of age and the father 38 years. They commenced a relationship in 2011 and separated in about October 2015.  At that stage X was perhaps just five months old and Y, in fact, was not born until the following year.

2. There was an incident soon after separation whereby the father, Mr Yearwood, took possession of X and travelled interstate. That matter was soon resolved with consent orders made in December 2016 confirming the children to live primarily with the mother.

3. Between March and December 2017 the father moved to live in Queensland.  Upon his return to Tasmania he apparently had little or no contact with the children until about June 2018.  As of December 2018 he commenced spending time with the children each alternate weekend.  Issues appear to have stabilised then between the parents.

4. On 8 August 2020 the children came into the father's care for a weekend.  The father noticed a bruise on Y’s hip or buttocks.  The child made disclosures that the mother had smacked her.  The father took Y to a doctor who opined that the bruising resembled a handprint.  Notifications were made to the Department of Child Safety.  The father retained the children.

5. The mother commenced these proceedings by Application filed 17 September 2020.  Interim orders were made for the children to remain in the father's care and to spend weekend time with the mother with the appointment of an ICL.

6. The matter was brought back for further interim hearing on 11 December 2020.  Further interim orders were then made for the children to remain living with the father and for them to spend each alternate weekend and week-about in school holidays with the mother together with other discrete orders.

7. The father lives in City D and the mother resides in Town C.  The travel time is approximately 1 ¾ - 2 hours.

8. Neither party is currently employed although the father harbours ambitions to be a self-employed tradesman.

9. The father is now married to Ms E. They married in 2019.  She is employed as a supervisor at a local business.  She has no children and there are no children of the relationship between Mr and Mrs Yearwood.

10. The children have therefore lived with Mr Yearwood and his wife Ms E since the early August 2020.  Both children are now enrolled in the F School.  The older child (X) is in Prep and Y is attending Kindergarten.  When with the mother, X attended the G School near Town C.

11. The mother says that she is not currently re-partnered although the father makes reference to a Mr H being in a form of relationship with the mother. Mr H was not called to give evidence by either party.

The Issues

1. There is an interesting aspect to this matter.  The children had lived consistently with their mother in the five or so years since separation.  They came to be with the father in early August 2020 when he says that he was concerned by bruising to Y accompanied by the child complaining of being smacked by her mother and in circumstances where a doctor suggested that the bruise may have indicated a handprint.  Nevertheless, he now argues for the children to spend block times with the mother being on alternate weekends (extending to Monday afternoon on a long weekend or student free day) and for periods of at least seven consecutive days/nights during school holidays.  He does not argue for conditions such as supervision to be attached to the children's time with the mother.  As such, it is difficult to reconcile the father's concerns as to 'unacceptable risk' or even an asserted assault on the child Y with the orders that he now seeks.  He maintains his concerns in respect of the mother’s use of corporal punishment of the children.  He argues generally as to the mother's dilatory parenting of the children in matters of medical issues and education, together concerns as to her lifestyle generally.  The father implies in his argument that the children are settled and successfully assimilated into his household whereupon he is an interested parent in their thus far successful schooling.  In essence, he argues that he presents as a more skilful and insightful parent than does the mother.

2. The mother argues that she has been the primary carer of the children.  She denies the allegations and assertions levelled at her by the father.  She says that the children developed a natural and strong attachment and bond with her during their formative years at which time the father was relatively disinterested in a relationship with the children and indeed spent long periods without direct contact.  She too now makes allegations that the children have suffered bruising in the care of the father with the implication that the Court should be concerned as to some form of child abuse.  Nevertheless, she too proposes block periods of unconditional time for the children with the father.

3. The mother says she offers plausible explanations or denials to the father's allegations in respect of her parenting capacity, skill and insight.

4. The mother says that she can offer X and Y the benefit of a relationship with their older siblings being daughters of the mother from a previous relationship namely Ms J born in 2002 (aged 18 years) and, more importantly, K born in 2006 (aged 14 years).  The mother claims that the younger children, X and Y, have established and beneficial relationships with their older sisters. Whereas Ms J is now studying at university in Hobart, K remains resident with the mother and an active member of her household. 

The Evidence

1. Both parents provided affidavits, gave evidence and were cross-examined.  The mother also filed a sworn financial statement.

2. Both parents were represented by Counsel.

3. The mother also adduced evidence from her sister, Ms L, who affirmed an affidavit of 1 March 2021 and her father, Mr M, whose affidavit was affirmed 24 February 2021.

4. Both Mr M and Ms L were patently, but understandably, partisan to their daughter and sister.  They were unable to find anything positive in respect of Mr Yearwood but were reluctant to admit any failings in the mother as to her parenting or lifestyle.  In this sense, their evidence was of little value save and except that they present as strong, general support for the mother.

5. The father relied on affidavit of his wife, Ms E, affirmed 12 March 2021.  She was not required for cross-examination.  Her affidavit is understandably supportive of the father's position and his parenting of X and Y.  She was able to convey details of appropriate routine and discipline in the household and significantly is supportive of the children's relationship with their mother and in no way personally critical of the mother contrary to the evidence of the mother herself and her witnesses in respect of Mr Yearwood.

6. The ICL adduced evidence from Ms N an experienced schoolteacher currently at F School.  She taught X from August 2020 and this year teaches Y. She is complimentary of both the children's development and the father's commitment and participation at the school.

7. The ICL also adduced evidence from Ms O.  She is the Principal of G School.  She swore an affidavit on 17 March 2021.  She was not required for cross-examination. 

8. Ms O deposes that X was enrolled at G School to commence February 2020 in kindergarten.  He had not attended at pre-kinda.  Ms O expressed concern as to X's lack of regular attendance and the inability of the school to be able to contact X's mother.

Credit

1. The mother was not an impressive witness.  She was unable to make admissions against interest and even when presented with strong evidence to the contrary of her own evidence.  She was keen to deflect blame and particularly to the father and often for her own indiscretions.  She was critical of the father in the extreme.  Her denials of assertions as to her parenting were often unsatisfactory and not persuasive.

2. I am generally not satisfied that the mother was always a witness of the truth.  Her failure to acknowledge deficiencies in her own parenting even when confronted with compelling evidence is of concern as to her insight, her parenting capacity generally, and her ability to parent into the future.

3. The father, to the contrary, was an extremely impressive witness.  He was able to make admissions against interest.  He was able to give informed and reasoned responses in cross-examination.  He was not inclined towards criticism of the mother personally but rather simply objective in his concerns as to her parenting.  He appeared to be sympathetic and engaging of the mother’s own relationship with the children.  He at times became emotional and, from my observations, genuinely and sincerely so.  My observations were of a man who has accepted the responsibility for the care of his children and one who had legitimate concerns for their safety and their needs.  He impressed as being child focused and committed to participating in the children's lives generally, including their schooling.

Relevant Law

1. Pursuant to s.60CA of the Act, I am to have the best interests of X and Y as my paramount consideration. Having said this, I am still able, and should, consider the interests of the parents and, in this case, the children's siblings, Ms J and K.

2. I determine the children's best interests by referencing the probative evidence and the parties’ proposals to the numerous considerations set out in s.60CC(2) and (3) of the Act against a background of s.60B which provides the objects and principles of the legislation as follows:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. S.61DA of the Act offers a presumption that it be in children's best interests for their parents to exercise equal shared parental responsibility for them.  'Parental responsibility' is usually manifested in the long-term and more important decisions that parents make for children such as in matters of education, religious practice, medical procedures and the like are and as opposed to the more mundane day-to-day decisions that parents habitually make for their children.  The presumption of equal shared parental responsibility does not apply if the Court is satisfied that there has been family violence or abuse to or in the household of the children.  Alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the children's best interests for the parents to exercise equal shared parental responsibility.  Obviously, in the matter now before me, each of the parties makes allegations against the other of the children suffering bruising and hence ill-care in that parent’s household.  Further, each of the parents concedes that there is poor communication and a lack of trust and respect between them.  Nevertheless, in the orders sought by each of the parents they propose an order for equal shared parental responsibility.

4. Significantly, should the presumption of equal shared parental responsibility apply and not be rebutted then the Court is mandated to follow a course of statutory and intellectual consideration beginning with an examination as to whether it be both in the children's best interests and reasonably practicable for them to live in an equal time arrangement between the parents.  In the matter now before me, the parties live near two hours apart and such an option is not reasonably practicable.  This being the case the Court is then to consider whether the children living in an arrangement of 'substantial and significant time' between the parents is both in their best interests and reasonably practicable.  This is a regime where the children spend both weekdays and weekends with each parent and be able to therefore mutually share in their day-to-day lives and activities.  Again, by reason of geographical distance this would not be a practical solution.

5. Consequently, and as emphasised to these two parents during the trial, the task for the Court here is limited to where the children should live during their school weeks.  That is, each of the parents propose that the children's quality time being weekends and school holidays be equally shared.  Again, the question is therefore whether the children's best interests are served by going to school from their father's home or from their mother's home? 

S.60CC Factors

1. I am reasonably satisfied that X and Y have an established and successful relationship with each of their parents.  They lived primarily with their mother until seven months ago in August 2020.  This was a formative time for the children when attachments and bonds are established.  They would have looked to their mother for physical and emotional support. I am comfortably satisfied that these attachments have been retained despite the children moving to live with their father some seven months ago but in circumstances where they have maintained regular and frequent contact with their mother.

2. The evidence of both the father and his wife together with that of Ms N, the school teacher, satisfies me that X and Y now have established, loving and successful relationships with their father.  The evidence of the school teacher from F School is significant in this regard where neither children presents at school with any form of separation anxiety from their mother or their siblings and appear to be successfully assimilated into that school and hence their father's family unit.

3. Matters of family violence or, more particularly, child abuse triggered these proceedings.  The children came on a visit to the father in August 2020 with Y showing some relatively severe bruising.  Significantly, the father's unchallenged evidence is that Y volunteered that the bruise had been caused by her mother smacking her.  A doctors evidence, albeit only in hearsay form, suggests that the bruise was consistent with the imposing of corporal punishment and may have resembled a handprint.  The mother denies that she caused the bruise or has inflicted corporal punishment on the children.  As mentioned above, her evidence was not persuasive.  Her tendency in Court was to deflect blame to the father claiming then that he also inflicted bruising on the children.  Her evidence in the witness box as to her disciplinary practices for the children was similarly unimpressive.

4. As mentioned above, the allegations and fact of bruising on these children seems to have diminished in importance for each of these parents where they both now ask for orders which would unconditionally see the children spending time for lengthy block periods with the other parent.  Nevertheless, this remains an issue for the Court in the sense of the relative parenting capacity of these parents. 

1. Matters of family violence within the broad definition in the Act also featured in the relationship between the parents.  Suffice to say that these parties have been mutually the recipient of restraint orders from the other.  I expect that the relationship was volatile but these parents have mitigated that this issue by geographically living two hours apart.  Their contact now needs to be limited to changeovers for the children which seem to have worked relatively satisfactorily of late. 

2. X and Y are just six and four years of age.  They are not of ages where they can be expected to rationalise their own preferences as to their living and parenting arrangements.

3. The mother raises a valid point as to the relationship between the children and their older siblings and, in particular, K (aged 14 years) who continues to live in the mother's home.  The eldest sibling, Ms J, now attends university in Hobart.  It is reasonable to conclude that K and the children would have established bonds and relationships similar to those established with the mother.  She has been a continuing presence in the children's home since they were born until August 2020.  Children benefit in their relationships with siblings.  Nevertheless, K at 14 years of age is almost of a different 'generation' than X and Y.  She will have her own interests and peer group relationships.  She is likely to move from the mother's family unit within a few years.  Further, the father's proposal would have Y and X spending each second weekend with the mother and hence with K as well as half of school holidays which again emphasises the importance of ‘quality’ time rather than simply quantity of time.  However, prima facie, the relationship for the children with K is an important and beneficial one for them and one to be given weight in this dispute.

4. I am to consider the impact of any changes for these children in the orders sought by their parents.  Significantly, they have already undergone substantial change in moving from their mother's home to their father's home in August 2020.  The father candidly conceded in the witness box that this was not a seamless process.  He volunteered that the children initially missed their mother and asked when they would be returning to her.  This evidences the obvious bond between children and mother with she having been their primary parent.  The events of August 2020 also involved a change of school for X who had been enrolled at the G kindergarten.  The beginning of school for any child is a milestone and one that must be negotiated with care.  It is reasonable to conclude, therefore, that the move for X and Y from their mother's home to their father's home has provided them with some anxiety and challenges.

5. The mother’s case, of course, proposes a further change for X and Y being back from the father's home in City D to her in Town C. The mother cannot be criticised in bringing and continuing this application in circumstances where the children were removed from her and where she has consistently denied the rationale for doing so.

6. The children are still young.  A further change, albeit after only seven or so months, will bring some issues for these children.  Such a period is a relatively long one in the psyche of such young children.  The evidence suggests that they are now established and settled in their father's home and the unchallenged evidence is that they have successful hierarchical relationships in that family unit with the father and Ms E.  Further, both children are now attending school with Y negotiating the milestone of moving to kindergarten.  X has moved to more formal schooling.  The evidence is that they have developed a familiarity and comfort with their surroundings and relationships with the teachers and their peers.  Again, all of the evidence suggests that the children have assimilated and progressing successfully.

7. The capacity of each of these parents to attend to the children's physical, intellectual and emotional needs is now very much to the fore of these proceedings.  The mother argues that she has a proven ‘track record’ in that she assumed primary and almost sole care of the children following the parties’ separation in 2015 when X was an infant and prior to Y's birth.  There is some merit to this argument.  The evidence suggests that Mr Yearwood was often absent and sporadic in his time and commitment to the children.  The responsibility consequently fell upon the mother who became a sole parent and also had the responsibility of two teenage children in her home.  It cannot have been easy.  The fact that the children themselves have managed the transition into their father's home and into their schooling with relatively little difficulty must also be seen as a credit to the mother in her care of these children for their first four or so years.

8. There are, however, issues and concerns in respect of the mother's day-to-day parenting of the children.  The evidence suggests that she was not consistent in getting X to his kindergarten on every day or on time.  Her evidence in the witness box was disappointingly unpersuasive in her attempts at justification.  Teachers giving evidence before these Courts generally agree that the early years of education are important in their consistency and establishing peer group relationships with children as well as dealing with issues of separation anxiety from parents.  Whilst accepting the onerous responsibilities that this mother had taken on, the evidence suggests that she was dilatory in getting X to school.  There was also some criticism of the mother in not engaging X in more formal pre-school activities, although the nature of that evidence does not persuade me that there should be any negative findings against this mother.

9. There are also issues raised in respect of the mother's parenting capacity around the children's toilet training and assimilation from the use of nappies.  Suffice to say that the children appear to have been late developers in this regard.  Nevertheless, there is evidence before me, again in hearsay form, that shows some concern raised by medical practitioners in respect of the children's progress in these areas.  Again, and as generally was the case with this mother, her attempts at justification in the witness box under cross-examination were unsatisfactory and unpersuasive.

10. Still further, X seems to suffer a physical condition which was described in Court as 'walking on his tippy toes'.  He also suffers issues with his speech.  The mother’s sister who is an educational nurse did not share the concerns of the father in this regard although she was something of a partisan witness unwilling to offer any criticisms of her sister.  At best, the mother's evidence is that she has contemplated receiving assistance for X but, as was something of a generalisation her evidence, she blamed the Covid restrictions and lockdowns for not doing so.

11. There is a further specific incident which may impeach the mother's capacity to care for these children and specifically a late night incident of violence in her home with a male acquaintance, Mr H.  The father in his affidavit says that this man is in a relationship with the mother.  In the witness box the mother denied that this was the case.  She described this man as a friend or acquaintance and a frequent visitor to her home.  Her evidence was again unpersuasive although she did receive corroboration from her father and sister.  In any event, there was an incident when the children were in the mother's home and the mother concedes to have been drinking heavily with this man which resulted in an incident of violence whereby the glass in the front door was broken and the police were called.  It seems that the mother did not take the matter further and maintains contact with this person.  My impression from the mother's evidence in the witness box is that she diminished the importance of this issue and its factual platform.

12. The mother is also critical of the father's parenting capacity.  He was, however, a much more impressive witness in this regard than was the mother.  He was informed and specific in his evidence.  Unlike the mother, he was not inclined to deflect blame or deny responsibility.  He was vocal and genuine in his previous failings which were generally a lack of commitment to the children post-separation where he delegated the primary care to the mother.  The mother makes a specific allegation in respect of the father's inability to attend to Y suffering eczema.  The father was cross-examined in some detail in respect of this issue.  I found his responses to the informed and appropriate.

13. The evidence of Ms N, the school teacher from F School, is impressive in respect of the father's capacity.  The evidence of Ms E was not challenged. She deposes to an established and stable family unit and a committed relationship and marriage with Mr Yearwood. The household is ordered and child focused and again as evidenced by the lack of criticism from the children's school.

14. The father's evidence and that of Ms E is further objective and child focused in that both seemed to encourage the children's relationship with the mother.  The same cannot be said of the mother who was almost entirely critical and blaming of the father.  In this respect she received support from both her father and her sister neither of whom had anything positive or complimentary to say about Mr Yearwood.

15. Issues of travel and logistics will be relevant to these parents whatever orders I make where they agree that the children's quality time will be equally shared between them.  They generally agree that changeovers will occur at City B which is close to halfway distance between City D and Town C.

16. The attitudes to the responsibilities of parenting is a factor which is deserving of consideration here.  It is, of course, generally considered to be in children's best interests if their parents are supportive of each other's relationship with the children.  As mentioned above, the mother's evidence, and that of her witnesses, gives little or no indication of any such support forthcoming for the children's relationship with Mr Yearwood into the future.  Undoubtedly, he was far from a perfect parent following the parents’ separation.  I also accept that the mother's family are supportive of her.  It was significant, however, when asked in the witness box, that the mother was unable to state anything positive about the father personally or as to his parenting capacity.  She is entirely negative towards him.  She tends to blame or deflect her own failings towards the father.  Her evidence in her affidavit and in the witness box was striking in this respect.  To the contrary, the father and his wife show a mature and child focused approach and an understanding of the children's needs to maintain a relationship with their mother.  This is evidenced by the father at times having taken the responsibility for all of the travel for the children between the homes.

Findings and Conclusions

1. I find that these children lived in the primary care of their mother for all of their lives until August 2020.  This is a significant and weighty consideration in circumstances where X was an infant and Y was not born until after separation.  This was a lengthy status quo that undoubtedly established primary attachments and bonds for these two children.

2. I find that the father was initially uncommitted in his relationship with the children and sporadic in his spending time with them.

3. By reason of circumstance, and particularly since August 2020, I am now able to find that X and Y have developed close and attached relationships with both of their parents.  On the evidence before me I find that they also have an established relationship with K in their mother's home and also with Ms E in their father's home.  Again, a period of seven months in these children's lives is a lengthy time and significant and important in the nature of and their establishment of relationships.

4. I am unable to make any positive findings in respect of mistreatment of the children in relation to the bruising that both parents allege against the other.  I must say, however, that the situation of August 2020 in respect of the allegation against the mother remains unresolved in my mind.  There is no ulterior motive made out or alleged in this father retaining the children after a period where the mother alleges that he showed a lack of commitment.  The hearsay evidence of the doctor compounds my concerns.  At the very least, I am able to find that this father acted at the time with a subjective and genuine concern that his daughter had been mistreated in the mother's home.  It is also of some significance that I have not been able to find the mother’s evidence in denial or response to these allegations to be persuasive. To the contrary, the mother's subsequent allegations against the father are not persuasive in their evidentiary value.  She was not a good witness.  Any suggestion that the father himself would assault his children in circumstances where he has just taken possession of them for that very reason and where he is under the scrutiny of this Court, the children's schools, and other protective bodies, I find to be unlikely.

5. In litigation where the standard of proof is the lesser one of 'on the balance of probabilities'[1],  I find some merit in and place some weight on the concerns asserted by the father in respect of the mother's day-to-day parenting capacity.  Prima facie, the evidence of the poor attendance of X at school in 2020, the lack of attention to medical issues, and the relative lack of assistance with his 'tippy toe' and speech therapy matters causes this Court some concern even acknowledging the difficulties of being a sole parent of pre-school children and teenagers.

   [1] Evidence Act 1995 (Cth) s.140

6. I am able to find that the children are being denied a relationship with K in the form that it previously took.  I find that she was an important person in their lives in their household and one from which they would have derived substantial benefit.

7. The evidence satisfies me to the necessary degree that the children have now assimilated relatively well into their father's home.  He was candid, honest and forthcoming with his evidence that the children initially suffered some separation anxiety from their mother. The evidence of the school suggests that this is now no longer an issue.

8. I am satisfied that father has accepted the responsibility and commitment for his children.  Their school attendance and his participation with their education is impressive and child focused.  Similarly, I am satisfied that the father has and will diligently attend to medical issues in respect of these children.

9. I am satisfied that the father has and will encourage the children in their relationship with their mother in circumstances where this requires a degree of objectivity with a focus and insight on the children's best interests and not on any residual disputes or animosities between the parents.  On the evidence, the mother does not share this ability.  I am also satisfied that, given their age differences, the children could maintain a relationship with K during weekend and holiday quality time.

10. I am satisfied that the children are settled with their father and in his home and with his wife, Ms E.  Similarly, they have settled and are progressing extremely well with their education and their social relationships.  It follows that any further change for these children at such important stages of their lives when negotiating the early years of school will almost surely cause them some distress and upheaval. 

11. In summary, I am satisfied that a status quo was established for these children with their mother for the first four or so years of their lives.  That status quo was disturbed by the father removing them from their mother's care in August 2020.  However, I now satisfied that a successful status quo of sorts has been established for them with their father, their home and their schooling in City D.

12. In circumstances where the children’s quality time of weekends and school holidays will be equally shared and when the parents will share the travel for these purposes, I am effectively now required to determine their best interest as to from which parent’s home they leave from and return from school.  Of course, a determination of children’s best interests is not so simple when the parent caring for children during the school week will need to show skills, availability, insight and commitment of a high level.  That parent will inevitably become influential in many ways in the lives of such young children.  The father is relatively unimpeached in these aspects. The school is complimentary of him whereas the mother’s commitment is validly challenged.  The father shows a greater insight and acknowledgment of the children’s need to have a relationship with the other parent than does the mother.  In circumstances where I can find no fault or ulterior motive in the father for over-holding these children in August 2020 but where there are unresolved issues in the mother’s historical parenting and where the mother’s proposal involves further changes for these young children, I consider their best interests being served by remaining in their father’s care during the school week.

13. For all of these reasons, I am of the view that the children's best interests are served by remaining living with their father but, as proposed by each parent, that their quality time of weekends and school holidays be equally shared. I will order accordingly. 

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Associate: 

Date: 24 March 2021

Correction (23/4/2021)

The ‘Delivered on:’ date on coversheet was changed from “23 March 2021” to “24 March 2021”