Sherwin & Weeks

[2021] FamCA 222

FAMILY COURT OF AUSTRALIA

Sherwin & Weeks [2021] FamCA 222

File number(s):

MLC 11749 of 2016

Judgment of:

BENNETT J

Date of judgment:

12 April 2021

Catchwords:

FAMILY LAW – PARENTING – review of Senior Registrar’s decision about interim parenting arrangements for children aged 14 years and 12 years who had lived equally between parents’ homes since separation in 2016.

FAMILY LAW – PARENTING – where younger children expresses strong views to family consultant that her time with mother be increased – where considerable delay between s 11F Children and Parents Issues Assessment and hearing before Senior Registrar and matter proceeded before Senior Registrar without up to date expert evidence of children’s views.

FAMILY LAW – PARENTING – where further interim arrangement is ordered for daughter (12 years) to reside with father five out of fourteen days during school terms and for son (14 years) to continue to reside equal times – where family therapy ordered – where private family report ordered.  

Cases cited:

Rice & Asplund (1979) FLC 90-725

Number of paragraphs:

40

Date of hearing:

12 April 2021

Place:

Melbourne

Counsel for the Applicant:

Ms Dellidis

Solicitor for the Applicant:

Westminster Lawyers

Counsel for the Respondent:

Ms Byrnes

Solicitor for the Respondent:

Bochard & Moore

ORDERS

MLC 11749 of 2016

BETWEEN:

MS SHERWIN

Applicant

AND:

MR WEEKS

Respondent

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	12 APRIL 2021

THE COURT ORDERS THAT:

IT IS ORDERED THAT:

1.Paragraph 1 of the Order made on 15 March 2021 be and is hereby discharged and in lieu thereof paragraph 16 of the Order made on 15 March 2018 be varied so that insofar as they relate to the child X born … 2008 so that she spends time with the father as follows:

(a)Each alternate weekend from the conclusion of school or 3.30pm on Friday until the commencement of school on Monday (to coincide with Y’s time in paragraph 2(a)(i)B of the Order made on 6 June 2018 (“the 2018 order”), commencing on Friday 30 April 2021; and

(b)Each alternate week from the conclusion of school on Monday or 3.30pm to the commencement of school on Wednesday or 9.00am to coincide with Y’s time in paragraph 2(a)(i)A of the 2018 order, commencing 10 May 2021.

2.My reasons for decision this day be transcribed and, when edited and settled, be available to the parties, placed on court file and a copy provided to Dr B by the applicant’s solicitors before the first appointment.

3.This matter be otherwise adjourned to 11 October 2021 in Judicial Duty List at 10.00 am before the Honourable Justice Hartnett (“the adjourned date”).

BY CONSENT IT IS ORDERED THAT:

4.Paragraph 12 of the Order made on 30 May 2020 be varied so that Ms C be the family report writer in lieu of Ms D NOTING THAT Ms C’s assessment will commence in July 2021.

IT IS FURTHER ORDERED BY THE COURT THAT:

5.The practitioners for the father ensure that the report of Ms C when released is sent in to the Court to be placed on the Court file by not later than 4 clear days before the adjourned date.

6.The parties do all acts things to ascertain the availability of Ms C to give evidence at the next court hearing without the necessity to give a specific time to do so.

7.Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled 'Parenting Orders - Obligations, consequences and who can help’ Version 4, a copy of which is annexed to these orders.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

BENNETT J:

1. This matter comes before me in the Judicial Duty List as a review of the decision made by Senior Registrar Hoult on 15 March 2021 in relation to the apportionment of the children’s time between the households of the mother and the father.  The children are Y, who is 14 years old, and X who is 12 years old.  The hearing proceeded within a necessarily limited timeframe.

2. This family organised their parenting arrangements post-separation, in September 2016, on a more or less equal shared care basis until orders were made in 2018 which confirmed those living arrangements, whereby the two children then aged 11 and 8, spent from Friday to Wednesday with the father in one week and from Monday to Wednesday with the father in the other week.  That was equal shared care of 7/14 days.

3. There were contravention proceedings in 2019, in which the mother raised the fact that X (then 10) was not happy with an equal shared care arrangement.  On 20 December 2019, the mother made application to vary the final order.  A preliminary issue raised by the father was whether there had been a sufficient change of circumstance such that the Court should reopen parenting litigation, colloquially referred to as considerations in the case of Rice & Asplund.[1]  The principle that ongoing litigation is not in the best interest of children and there should be some finality and that the Court should not lightly permit serial litigation unless there is some change of circumstance, which in fact warrants a re-hearing.

   [1] Rice & Asplund (1979) FLC 90-725.

4. As 11F Child and Parent Issues Assessment was ordered on 21 February 2020.  It was prepared by Family Consultant, Ms F, and published in March 2020.

5. The Rice & Asplund issue was raised before Senior Registrar Field on 19 May 2020.  Macmillan J had the matter before her on 14 September 2020, 26 October 2020 and on 15 January 2021.  From the time the 11F assessment by Ms F, Family Consultant, was published in March 2020, the matter did not return to Court for any substantive hearing on the merits of the Rice & Asplund issue until 25 January 2021.  On 25 January, it was agreed by consent that the mother be given leave to proceed with her initiating application. 

6. The 11F assessment has not been tested in cross-examination.  The s 11F assessment is critical of the mother. 

7. On 30 March 2021, I listed this matter for mention in anticipation of today’s hearing.  I was concerned that the matter would not be appropriately accommodated in the Judicial Duty List without any further expert evidence, particularly an assessment of the current views of the children and their experiences since March 2020. 

8. On 30 March 2021, both parents wanted to retain the listing in the Judicial Duty List on 12 April 2021.  I ordered that:

   (a)the matter remain listed before me in the Judicial Duty list;

   (b)the mother forthwith undertake a Parenting Training Course and provide a certificate of completion to the court and to the father via their respective solicitors;

   (c)the father be responsible for taking both children with him to the first therapeutic counselling session with Dr B on Tuesday 27 April 2021;

   (d)the father spend time with X Tuesday night following the therapeutic session with her father;

   (e)the father continue to spend each Tuesday night with X;

   (f)Dr B be provided with relevant documents;

   (g)the parents be injunct from causing, permitting or suffering the children to attend upon any other social scientist or like professional; and

   (h)a family report be prepared by Ms D with interviews scheduled for 24 May 2021.

9. I have heard submissions from both counsel.  I set 10 minutes each counsel to make their submissions.  Both of them went for about somewhere between 15 and 20 minutes.  There were certainly facts that came to my attention today that I did not know when I had this matter brought on for mention before me on 30 March.  The difficulties I foresaw on 30 March 2021 in relation to lack of up to date expert evidence are manifest.  However, today the parties were prepared to adopt a more realistic timetable for family therapy and preparation of a family report, which will now be undertaken by Ms C in lieu of Ms D. 

10. I am informed by counsel that the parents recognise that the goal of therapy with Dr B is, if at all possible, to realign X’s time so that she has the same time as Y has in the father’s household.  That is, that therapy should work towards the children being together in both households, rather than X spending less time with the father than Y. 

11. The father has doubts about whether the mother is sincere in her view that she has no objection to X reverting to 7/14 days as a result of therapy or otherwise.

12. The decision that I make today will last until 11 October 2021, when the matter comes before Hartnett J in the Judicial Duty List, following the release of the report by Ms C.  There is no guarantee that Hartnett J will entertain further interim adjustments to time spent.  Hartnett J is the Case Management Judge and would be in a position to accord the matter priority for a final determination if that is warranted.  A relevant factor for priority is that matter was not dealt with substantially during the lockdown periods in 2020.  That is, the family has already been a casualty of delay. 

    RECORDED  :  NOT TRANSCRIBED

13. Returning to the history, there was an incident in at the football on 15 May 2019, which appears to have become a focus for X to immediately refuse to attend the father’s home for two days and then to continue to articulate a desire not to spend as much time in the father’s household than she had been spending.  The mother says that from 2018, X had been expressing to the family doctor, Dr G, that she didn’t want to spend as much as one half of her time in the father’s household.  Since 2016, X has told the school counsellor, Ms H, that she did not want to spend as much time in the father’s household.

14. The 11F assessment by Ms F is as thorough as most other Family Consultants’ family reports.  It was prepared over the course of a day.  It is clearly expressed.  It reads as an internally consistent document.  It is also extremely critical of the mother and attributes the schism that Ms F perceived existed between X and the father on 11 March 2020, as either attributable to or largely supported and exacerbated, by the mother’s influence and permissive parenting style.  

    RECORDED  :  NOT TRANSCRIBED

15. A stated earlier in these reasons, from the time the 11F assessment was published in March 2020, until 25 February 2021, it appears that the matter did not return to Court for any substantive hearing on the parenting merits of the application until 25 January 2021.  The assessment of Ms F follows on her apparently comprehensive observations of the parents and the parents with the children, at which in March 2020, X was presenting as a rude and insensitive little girl.  What motivated X to behave in this was is a matter that is quite complex, but she was presenting in an oppositional, and Ms F thought, wholly inappropriate manner.  Ms F also attributed responsibility for X’s attitude to the mother. 

16. The 11F assessment should be read in its entirety, however, the evaluation is set out at paragraph 30:

    This assessment provides initial expert advice to the family and to the court about the issues involved in this matter and the children’s needs.  In summary;

    i.This case is dominated by two features.  Firstly X does have a greater affinity towards her mother, and to some extent this is normative, but in X’s case it is concerning as this also reflects an allegiance with a parent who is permissive and who sets few boundaries for X.

    ii.Parenting style appears to be at the core of this issue as Mr Weeks acknowledged expressing disapproval about some of X’s poor conduct and providing her with boundaries, behaviour that should be undertaken in the role of parent. The quintessential issue is that Ms Sherwin does not consider Mr Weeks has a right to parent X, and X’s commentary about her father’s behaviour suggests this issues is at the basis of conversations with her mother. Mr Weeks though has a responsibility to parent, as does Ms Sherwin. 

    iii.The second concern is that this matter reflects the early stages of parental alignment, with Ms Sherwin intrusive and critical about the children’s time with their father and his parenting, coupled with her own sense of entitlement to intrude on the children making multiple telephone calls, which they elect to ignore.  Ms Sherwin whether consciously or not projects her unresolved issues about her adult relationship onto X’s inappropriately supported assertions about her father and in so doing she has empowered X to take on the role of decision maker actively exacerbating issues to be resolved into deep and damaging concerns. Ms Sherwin has not been focused on finding any solution other than minimizing X’s contact with her father, she has not sought to modify X’s behaviour or realign her expectations that not everything should go as X wishes. 

    iv. That X is prone to exaggeration was demonstrated by her definition of her father’s use of a stern tone as “…yelling” and her claims of being the victim of consistent anger, or scared which were disputed by Y.  It was apparent that X resents being challenged and she has found a safe harbour for rejecting limitation to her own behaviour with her mother. 

    v.X’s own narrative about her father identifies him as spending time to facilitate and support her activities, managing clashes with her timetable (as established by Ms Sherwin) and despite being spoken to rudely and having arranged other family events he supports her attending a preferred event.  The reading of this matter suggests Ms Sherwin sets up scenarios which Mr Weeks then repairs and she subsequently engages X in a denunciation of Mr Weeks’s actions.  Ms Sherwin’s recounting of events, both the clash around ballet and basketball and the football altercation have been subject to substantial modification by the children’s reports.

    vi.The foregoing also suggests that when Mr Weeks does not agree with propositions presented by Ms Sherwin or X he is accused of not listening and Ms Sherwin has supported X to reject any concerns raised about her behaviour by her father.  This is both unhelpful and untenable for X’s development.

    vii. Both mother and daughter suggest the same adjustment in time and there are phrases X uses identical to those of her mother which implies that there has been significant discourse and preparation about this matter between mother and daughter.  This strengthens concerns about issues of alignment.   The approach used by both mother and daughter though appears to be illogical, because if Mr Weeks is so horrid, unsupportive and angry how is this behaviour ameliorated by a reduction in time and why does Y, an intelligent lad, not raise any similar concerns? Y denied the claims he was frightened of his father and both children have reported initiating difficult conversations with their father.

    viii.The argument has been presented that X “…knows her own mind” so her views should be adhered to, but this however reflects a distinction between X’s entitlement to express a view and the weight given to such a view. X’s sense of entitlement, her own abusive behaviour to her father, and Y, as well as her incapacity to consider the consequences of her behaviour suggest her views should be considered but not be given weight. This claim of the predominance of X’s mind in this matter inaccurately posits X in this matter as a decision maker and driver of events, an inappropriate position for X that Ms Sherwin appears to encourage.  It is noted that Mr Weeks perceives X “…as an 11 year old” who “…should not be making parenting decisions.” Mr Weeks may be correct but he may also need to accept that X is growing up and he needs to give her the appropriate space to air her views and respectfully discuss options with her. 

    ix. It was also noted that no suggestions of any therapeutic intervention were raised by any party other than the consultant creating curiosity about Ms Sherwin’s and X’s expectations about how her life with her father would proceed.  A concern arises that the suggestion of a 11/3 time split may in fact signal an intention that time between father and daughter would ultimately cease, or does this position imply that Mr Weeks is not so horrid that time with him is actually untenable. It has been noted that X does not share her father and brother’s interest in sport, she is bored, indulged and there are hints that she is aggrieved by Mr Weeks having a partner after many years in which she was the centre of attention.  It is the case that X wants to spend some more time with her mother with this agenda has knowingly been supported by Ms Sherwin and presented in a manner not congruent with the facts.

    x. Having set the agenda of unquestioning support for X’s spurious claims. Ms Sherwin has permitted X to be rude and inappropriate to her father and his response to this conduct, as a parent, is then claimed to inaccurately to be denigration.  Hence X’s inappropriate entitled behaviour as supported by Ms Sherwin, and inaccurately labelled cements for X a false reality about so called issues that appear fabricated.

    xi. The lack of challenge to X about the claims she raises at school also provides support for a narrative founded on inaccuracy and misdirection noting that yelling is not the equivalent of a stern tone which in turn is not persistent anger and parental redirection is not degradation. 

    xii. Mr Weeks’s responses to X fall within a category of reasonable parenting and orienting X to the reality of the consequences of her behaviour. Ms Sherwin’s responses to X demonstrated a lack of insight as to the extent she both interferes and withholds permission for Mr Weeks to parent the children and that she is unduly permissive.  More significantly is the lack of insight into the extent to which Ms Sherwin has used X to create emotional hurt for Mr Weeks and the extent to which this has damaged X’s capacity to respond with appropriate emotionality to her father. X has been subject to emotional harm perpetrated by her mother and X ought not to be the messenger for Ms Sherwin’s unresolved dissatisfaction

    xiii. A concern, unaddressed by Ms Sherwin is around the apparent ease with which she suggests the siblings be separated. Ms Sherwin has not focused on the broader issues of the sibling relationship nor specifically on Y’s needs, nor was any regard expressed around how Y might feel about these circumstances. 

    xiv. This report commenced with an assertion about normative behaviour and has noted that in the final analysis, given her age and lack of preparedness to support any interests other than her own, X “…just wants to spend more time with mum.”  In light of the complexity of issues raised this situation though cannot be approached in a cavalier fashion as it provides ballast for X’s confused sense of control and rewards the abusive behaviour directed at Mr Weeks by mother and daughter.

17. Unsurprisingly, the mother did not accept the assessment by Ms F.  She took issue with Ms F’s methodology and with Ms F’s opinion.  As I have already indicated, there has been no opportunity for Ms F to be cross-examined on the content of her report.  It is untested evidence. 

1. There were certain recommendations made by Ms F, which were not cooperated with by the mother.  Most likely, because the mother did not accept the premise of the recommendations.  Ms F broadly recommended that the children continue to spend the same time with the father, that is, equal shared care.  She recommended some family therapy with an experienced therapist, particularly in family law matters for the father and X over three or four sessions.  Ms F suggested two practitioners but the mother would not agree to go to either of those, and subsequently suggested a third practitioner, who the father was prepared to agree to.  The father and X are going to see Dr B on 27 April 2021.  

2. Both parents were recommended to go to the Parenting Training course.  The father undertook the course.  The mother did not undertake the course.  She said that COVID interrupted it, however, that particular parenting training course is available online, and the mother did not take it up online.  It was also recommended that:

   Ms Sherwin undertake counselling to assist her to be supportive of the children having a relationship with their father and to comprehend his role as a parent.

3. The mother did not participate in either the parenting training course or counselling.  On 30 March 2021, I asked Ms Dellidis, counsel for the mother, why the mother had not participated in either the parenting training course or counselling as recommended to which the following exchange took place:[2]

   [2] Transcript in Confidence, 30 March 2021, p.9, 1-41.

   MS DELLIDIS:   She hasn’t undertaken either of those courses – sorry, either of those recommendations, including counselling to be more supportive of the children having a relationship with their father.

   HER HONOUR:   And why is that?

   MS DELLIDIS:   Well, with respect to the PET course, she has filed an affidavit saying she was willing to undertake it.  COVID was in place for the entirety of the 2020 year.  The matter was in abeyance in terms of not getting a hearing.  She may not have even gotten over the Rice & Asplund argument, and the proceedings would have been concluded.  And to be frank, your Honour, it’s not a case where she considers herself to be the underminer of X’s relationship with her father, but as I indicated, she – if it was ordered, she would do it.

   HER HONOUR:   What impact did COVID have on her ability to attend an electronic course?

   MS DELLIDIS:   Well, that’s right, one would ask that.  It’s effective      

   HER HONOUR:   I am.  What is it?

   MS DELLIDIS:   She considered the effectiveness of it would be greater if it was in person.

   HER HONOUR:   So she decided not to do anything.  Is that seriously her response?

   MS DELLIDIS:   Well, she hasn’t done anything, and it’s obviously a result of a decision.

   HER HONOUR:   And where can it be undertaken personally, face-to-face?

   MS DELLIDIS:   I don’t know, but she tells me that she has made a number of investigations about it, and it is available around metropolitan Melbourne.  So it’s not an impracticable argument.

   HER HONOUR:   And she could do it electronically, in any event.  And whilst she might not perceive herself as being less than effective in terms of parenting, vis-à-vis recognising the father’s position and the lives of the children, and in the life of their daughter, it wouldn’t hurt her to do the course, would it?

   MS DELLIDIS:   I agree.

4. Very significantly, though, X continued to attend the father’s residence for 7 out of 14 days pursuant to the Order of 2018.  I accept the submission of Ms Dellidis that that X’s ongoing compliance is extremely significant given Ms F’s opinion that the mother was permissive of X’s poor attitude and was fostering X’s opposition to equal time with the father (and her brother).    

5. Before the matter came before Senior Registrar on 15 March 2021, there were a great deal of changes for X.  She has had a change of school from primary school to high school.  She has experienced puberty.  She has different interests to the father and to Y, and those interests continued to diverge more away from the sport that the father and Y were interested in.  When the matter came before the Senior Registrar, it was determined that X’s time should be altered to three out of 14 days in place of the seven out of 14 days.  In particular, that X would spend time with the father from Friday to Sunday each alternate week, and for one night in the off week.  That determination was in the absence of any up to date expert evidence as to how the children had coped with equal shared care for the previous 12 months since Ms F’ 11F assessment was published. 

6. The Senior Registrar’s decision represented a big change for the children because, whilst the order concerned only X, obviously any variation to her time impacts Y because he is without the companionship of his sister, and the children are in separate households. 

7. Sensibly, the parents have reworked the timelines for social science intervention.  The father and X start with Dr B still on 27 April, but instead of then going onto the family report preparation in May, they have changed the family report writer to Ms C who will commence her assessment on 15 July 2021.  Ms C should be able to prepare a report by August 2021.  Dr B and Ms C are in the same practice, so there should not be any difficulty in them communicating.  The therapy is not to be confidential, but it is also not to be interrupted by or under the direct scrutiny of the Court.  It is permissible for the family report writer to speak to the therapist, but not for the parties to require the therapist to attend Court and give evidence, unless the Court make orders otherwise.

8. The orders I make will operate between now and October 2021 and possibly thereafter.  The Order must have as its primary focus the best interests of the children.  The best interests of the children is to be determined, having regard to what is necessary to keep them safe from emotional and physical harm.  Secondly, I must have regard to the benefits to the children of having a meaningful relationship with both parents.  Meaningful doesn’t mean optimal, and in this case, even on the scenario of the father’s time being reduced, X will spend time with him that is still meaningful.

9. There are additional considerations that I can take into account if and as relevant in arriving at what is in the best interests of the children.  The first such additional consideration is the views of the children.  Before this legislation was amended in 2009, it referred to the children’s wishes.  The amendment to the legislation was quite purposeful, in as much as views were intended to capture the child’s perspective, but were not intended to make the children in any way responsible for the ultimate decision or to have a sense of responsibility for the outcome of proceedings and the disappointment of one or both parents.  

10. I accept the submission of Ms Byrnes that it is difficult to know where X sits at the moment in terms of her views.  The parties have filed extensive affidavit material, with the father’s being much more extensive than the mother’s, but the impression that I get from my very brief reading of both sets of affidavit material - and I make no secret of the fact that I have not read the affidavits thoroughly – is that the parents continue to give evidence from their own perspective rather than from what X’s perspective might be, or even Y’s perspective. 

11. X and Y need to be satisfied that their voices are heard, and that what they say is listened to.  However, it would not be developmentally sound for X to be put in a position where she thought her views were determinative.  The report of the assessment of Ms F indicates that I should be circumspect about X’s expressed wishes as at March 2020 because Ms F assessed that X’s words were not her own, her thoughts were not her own, and her attitudes were not necessarily her own.  She thought, as set out in the above evaluation, that much of the child’s “narrative [was] founded on inaccuracy and misdirection” for which she opined the mother must assume some responsibility.

12. The father’s most recently filed affidavit describes a different little girl than Ms F describes.  He refers, in his affidavit, to recent events where X has been affectionate and kind and considerate within his home.  According to the father, she particularly wants to spend more time with him the three out of fourteen nights ordered by the Senior Registrar and in place before school term holidays took effect and the children back to an equal shared care arrangement.

13. On the other hand, the mother says that X is more content with eleven nights in her home since mid-March 2021.

14. The assessment of Ms F describes X as a young girl who has been somewhat lured into spending less time with her father by receiving attractive activities and gifts and treats in the mother’s household.

15. I have not spoken to either of the children.  Unfortunately, the funding for Victoria Legal Aid means that the children cannot be independently represented at this stage because the family falls outside the restricted guidelines for allocation of resources.  This is a case which cries out for an Independent Children's Lawyer and the children’s views to be heard in some way other than through their parents.  I suspect that X has been quite confused in the last year, and that the therapy with Dr B will be a good precursor to an investigative report by Ms C. 

16. I take into account the change for X and for Y of an alteration of the orders that go from equal shared care from Friday to Wednesday in one week and Monday to Wednesday in the other week for X to each alternate weekend from Friday to Sunday and one night in the off week.  That’s a really drastic change, and it’s a drastic change for Y as well.  I am now asked to change the arrangements again.  The father seeks that time revert to the 2018 Order arrangement and the mother seeks that the current arrangement as per the Senior Registrar’s Order remain. 

17. I have regard to the attitudes to parenthood demonstrated by each of the parents.  The consensual resolution, for equal time, in 2018 probably wallpapered over a number of significant differences between the parties.  I do not accept that just because they agreed to equal shared care, that their attitudes were harmonious.  Many people have reasons for agreeing to orders. 

18. Notwithstanding that the assessment by Ms F is not particularly critical of the father, I think that it is both parents who need to work on their attitudes.  There are elements of the father’s case that give me disquiet about his ability to evolve and recognise that the children will develop and that all families develop in different directions and that he cannot continue, necessarily, to impose upon the children equal shared care if they, or one of them decide, that they do not want it.  However, there is merit in what Ms Byrnes submits that if one or both of the children do not want to spend seven out of fourteen nights with the father during school term, it is not sufficient for that to be the end of the matter.  There should be a reorganisation as part of a structured, respectful, considerate and empathetic involvement with a counsellor like Dr B so that a new structure is adopted not based on hurt feelings or conflict. 

19. On 30 March 2021, when the matter was mentioned before me, the parties were able, with quite a bit of pressure placed upon them, to come up with an arrangement whereby for two weeks X would spend four out of 14 nights in the father’s household and Y would spend his regular seven nights. 

20. Today it is no part of either party’s case is that the time that Y spends in the father’s household ought to be changed.  It is limited to time X should spend.  Neither parent seeks to alter holiday arrangements, which are equal time. 

21. Having regard to the evidence I have before me and with the benefit of submission from counsel, between now and October I am satisfied that it would be in the best interests of the children to trial five out of 14 nights for X.  That provides X with extra time with the mother but not too much time away from Y. 

    RECORDED  :  NOT TRANSCRIBED

22. So the scenario will be for X from Friday to Monday each alternate week and from Monday to Wednesday in the other week, which is five nights out of 14 nights.  This is the best that I can do without up to date expert evidence about the presentation of the children.  It is a great pity there is not Independent Children's Lawyer.   

23. As I said earlier in these reasons, the common goal of the parents is for therapeutic intervention by Dr B to explore the re-establishment of both children spending equal time between their parents’ households. 

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated: 26 April 2021