SLASKI & WAY

FEDERAL CIRCUIT COURT OF AUSTRALIA

SLASKI & WAY

[2017] FCCA 1632

Catchwords:
FAMILY LAW – Parenting orders – joint or sole parental responsibility – impact on children of witnessing domestic violence between their parents.

Legislation:

Family Law Act 1975 (as amended), ss.60B, 60CA, 60CC(2) & (3), 65DAA, 65DAC & 65DAE

Applicant:

MS SLASKI

Respondent:

MR WAY

File Number:

ADC 1598 of 2015

Judgment of:

Judge Mead

Hearing dates:

1, 2 and 3 June 2016

Date of Last Submission:

3 June 2016

Orders Pronounced:

15 June 2016

Delivered At:

Adelaide

Delivered on:

14 July 2017

REPRESENTATION

Counsel for the Applicant:

Self-represented

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

Ms Lee

Solicitors for the Respondent:

College Park Law

ORDERS

That all previous orders made herein be discharged.
That the parties have equal shared parental responsibility for [X] born (omitted) 2004 and [Y] born (omitted) 2007.
That the child [X] live with each of his parents as follows:
(a)With his mother during school term time:
(i)On each alternate weekend from the conclusion of school Friday to the commencement of school on the following Monday in accordance with the existing cycle; and
(ii)On each Wednesday from the conclusion of school to the commencement of school on Thursday morning.
(b)With his father during school term time at all other times.
That the child [Y] live with each of her parents as follows:
(a)With her mother during school term time:
(i)In each alternate week from the conclusion of school Wednesday to the commencement of school on the following Monday in accordance with the existing alternate weekend cycle; and
(ii)On each intervening Wednesday from the conclusion of school to the commencement of school Thursday.
That both children live with their parents during school holiday periods as follows:
(a)During the April, July and September/October school holidays in each year:
(i)With their mother from the conclusion of school on the last day of each relevant school term to 5:00pm on the middle Saturday of the holiday period; and
(ii)With their father from 5:00pm on the middle Saturday of the holiday period to the commencement of the next school term.
(b)During the Christmas school holiday period in each year:
(i)With their mother:
A.      For the first half of the said holiday period commencing in December 2016 and each alternate year thereafter commencing at the conclusion of school on the last day of the fourth school term and concluding at 1:00pm on the middle day of the holiday period; and
B.      For the second half of the said holiday period commencing in December 2017 and each alternate year thereafter commencing at 1:00pm on the middle day of the holiday period and concluding at the commencement of the next school term.
(ii)With their father:
A.      For the second half of the said holiday period commencing in December 2016 and each alternate year thereafter commencing at 1:00pm on the middle day of the holiday period and concluding at the commencement of the next school term; and
B.      For the first half of the said holiday period commencing in December 2017 and each alternate year thereafter commencing at the conclusion of school on the last day of the fourth school term and concluding at 1:00pm on the middle day of the holiday period.
That paragraphs 3, 4 and 5 hereof be suspended for the following periods and both children spend time with their parents for these special occasions as follows:
(a)Christmas Eve, Christmas Day and Boxing Day each year:
(i)With their mother from 3:00pm Christmas Eve to 3:00pm Christmas Day in 2016 and each alternate year thereafter;
(ii)With their father from 3:00pm Christmas Day to 3:00pm Boxing Day in 2016 and each alternate year thereafter;
(iii)With their mother from 3:00pm Christmas Day to 3:00pm Boxing Day in 2017 and each alternate year thereafter; and
(iv)With their father from 3:00pm Christmas Eve to 3:00pm Christmas Day in 2017 and each alternate year thereafter.
(b)Easter each year:
(i)With the mother from 5:00pm Maundy Thursday to 5:00pm Easter Monday in 2017 and each alternate year thereafter; and
(ii)With their father from 5:00pm Maundy Thursday to 5:00pm Easter Monday in 2018 and each alternate year thereafter.
(c)Mother’s Day each year with their mother from 9:00am to 5:00pm; and
(d)Father’s Day each year with their father from 9:00am to 5:00pm.
That the parent who does not have the care of the children on each of their birthday’s be at liberty to communicate with both children on each child’s birthday by way of telephone between 7:30am and 8:00am on the relevant birthday morning by way of telephoning the children on the other parent’s mobile telephone.
That the parent who is to receive the call referred to in paragraph 7 hereof ensure that the children are available to take the call and that the mobile telephone is charged and switched on, that the ring tone is on loud and that the children are able to take the call in privacy and not on loud speaker.
That both parents facilitate the children communicating with the other parent by telephone at all reasonable times and in any event on at least one occasion during any time the children are in their care for four or more consecutive days.
That the parties be restrained and injunctions are hereby granted restraining each of them from:
(a)Inflicting any physical discipline on the children or either of them or allowing anyone else to do so;
(b)Abusing or denigrating the other of them or any members of the family or household of the other of them to or in the presence of the children or allowing anyone else to do so;
(c)Discussing issues relating to these proceedings or arising from these proceedings including but not limited to the children’s living arrangements (except for the purpose of advising both [X] and [Y] of the terms of this Order as it applies to the time the children are to spend with each parent) with or in the presence of the children or either of them or allowing any other person to do so SAVE AND EXCEPT for any counsellor or therapist attended by the children or either of them; and
(d)Communicating with the other of them other than in a polite and respectful manner.
That the father be restrained and an injunction is hereby granted restraining him from bringing or permitting [X] and/or [Y] to be in the presence of his brother [Z] other than in his (the father’s) presence.
That both parties be at liberty to obtain copies of school reports, newsletters, photographs and the like at their own expense from any school or schools attended by [X] and [Y] from time to time and be at liberty to attend at any activities at the said school or schools to which parents are usually invited.
That the parties communication with each other in relation to matters that do not relate to an emergency concerning the children or either of them be by way of email and in respect to any emergency concerning the children by SMS text message with all communication to be conducted in a polite and respectful manner.
That neither parent enrol the children or either of them in extracurricular activities or arrange any medical or related appointments which requires attendance by the child during his or her time with the other parent without consent first having been obtained from that other parent SAVE AND EXCEPT in the case of a medical emergency.
That both parents do all things necessary to facilitate the attendance of [X] and/or [Y] at extracurricular activities in which they are currently enrolled until such time as the children may cease attending those activities.
That all handovers that do not occur at school take place inside the (omitted) Police Station.
That both parties facilitate the attendance of [X] and [Y] for the therapeutic intervention referred to in paragraph 7 of the Order of 25 September 2015 to the extent that same is recommended by the relevant therapists.
That within 14 days of today’s date the parties agree on a common medical practice for the children and thereafter ensure the children attend at that practice for all medical appointments SAVE AND EXCEPT in the case of an emergency.
That each party advise the other of them forthwith of any serious accident or illness suffered by the children whilst in their care with such advice to contain details of any medical practitioners treating the children and any hospital to which the children may have been admitted.
That all extant applications be otherwise dismissed.
That reasons for judgment remain pending.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1598 of 2015

MS SLASKI

Applicant

And

MR WAY

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons relate to an order made by me on 15 June 2016 following upon the trial in the matter heard over 1, 2 and 3 June 2016. I apologise to the parties for the delay in delivering these reasons.
Ms Slaski and Mr Way were unable to agree on parenting arrangements for their two children [X] aged 12 at the time of the hearing and [Y] aged 8 ½ years. The father was aged 37 years and the mother 38 years at the time of hearing.
The parenting order in place at the time of trial was that of 15 April 2016. This provided, inter alia, for [X] and [Y] to live with the father and spend time with the mother on alternate weekends during school term time from after school Friday until the commencement of school on Monday and from after school each Wednesday until the commencement of school on Thursday.
At the time of trial the mother sought the orders as set out on pages 25 and 26 of her trial affidavit filed 4 May 2016. The orders sought by the father were specified in paragraph 161 of his trail affidavit filed 17 May 2016.
The mother sought sole parental responsibility for the children, which was opposed by the father. He had originally proposed that he have sole parental responsibility for the children but in oral evidence in chief at trial said that he considered equal shared parental responsibility was more appropriate.
In addition to the oral evidence as to his change of position regarding parental responsibility he also gave evidence that he thought [Y] spending an extra night or so per fortnight with her mother over and above the existing order was an “excellent idea.” He proposed that the existing orders with respect to [X]’s time with the mother remain unchanged.
There were no substantive issues between the parties with respect to the children sharing their time equitably with their parents during school holiday periods and on special occasions such as Christmas, Easter, Mother’s Day and Father’s Day.
The mother sought that handovers that did not occur at the children’s school occur inside the (omitted) Police Station which was not opposed by the father.
The parties were substantially in agreement as to specific issues orders.

Background

The parties commenced cohabitation in 2003, married on (omitted) 2008 and separated in April (according to the mother) or May (according to the father) in 2012. At the time of separation the mother left the former matrimonial home and for the following three to five months the children lived with the father and the mother spent time with the children in accordance with her work commitments.
By somewhere between July 2012 (according to the mother) and September 2012 (according to the father) the parties reached agreement for the mother to move back into the former matrimonial home and assume the primary care of the children and for the father to leave the premises and move into nearby accommodation.
Thereafter until 29 April 2015 the children spent time with the father by agreement, usually on alternate weekends but with some accommodation for the father’s work commitments (according to the mother) and on almost every weekend (according to the father). The parties both deposed to complaints as to communication issues and the care provided by the other of them for the children during that time but no proceedings were issued until the current proceedings, instituted by the mother on 8 May 2015.
The mother’s initiating application sought orders for delivery up of the children [X] and [Y] to her, in the alternative a recovery order and an order that the children spend time with the father supervised at the (omitted) Children's Contact Service on alternate Saturdays and Sundays.
On a final basis she sought that the children live with her and spend time with the father on every alternate weekend from after school Friday until Sunday at 4:00pm and at other times as agreed between them. She sought an order for handovers at the (omitted) Police Station if they did not occur at school.
In 2013 the mother had decided to move residence from (town omitted), where the parties had lived with the children as a family, to (town omitted). The mother moved without notice to or consultation with the father and as a result of the move both children had to change schools. That did not prompt the father to institute proceedings.
In his response to the mother’s initiating application, the father opposed the mother’s interim application for delivery up of the children. He sought that the children live with him and spend time with the mother on alternate weekends at times to be supervised at the (omitted) Children's Contact Service, and that the mother be restrained from approaching within 200 meters of any school, place of residence or employment occupied by the children or the father.
He sought an order that the mother attend a registered child first education program or guidance from a child psychologist in matters pertaining to facilitating a meaningful relationship with both parents, that a Family Report be prepared and that the mother be restrained from both removing the children from the care of the father and using drugs of abuse.
The father sought drug analysis testing of the mother by way of urine analysis and hair follicle tests and that each party attend upon a psychiatrist for the purpose of a psychiatric report.
On a final basis the father sought that he have sole parental responsibility for the children, that they live with him and spend time with the mother by agreement or alternatively, on alternate weekends from after school Friday until the commencement of school on the following Monday. He proposed that the children spend time with each party for half of school holiday periods each year and specific 24 hour proposals in alternate years for the children to spend with each parent over the Christmas Eve, Christmas Day and Boxing Day period. He sought orders for the children to spend time with him on Father’s Day and with the mother on Mother’s Day and for the children to spend equal time with each parent on their birthdays and their parents birthdays.
By the time of trial he proposed that [X] continue to spend time with his mother during term time in accordance with existing orders and for [Y]’s time with her mother during school term time to increase by one to two nights per fortnight.
The father sought an order for handovers that did not occur at the children’s school to occur at a Children’s Contact Service, and standard specific issues orders in relation to obtaining school information, attending at school events, notification of residential address and telephone numbers, the use of a communication book, notification to the other of medical emergencies and the parties not being able to take the children out of the State of South Australia without the prior written consent of the other of them.
The genesis of the mother’s application was an incident that occurred at the mother’s home at (town omitted). The father had returned the children to the mother’s home apparently at her request. It was the father’s case that when he delivered the children to the home the mother was not present and he went inside the mother’s home, apparently at the request of one of the children, whereupon the mother arrived home and became very angry. This was no doubt quite understandable. Thereafter there was an extremely unpleasant argument in the presence of the children including a physical altercation, with each of the parties accusing the other of assaulting them.
The father alleged that the assault by the mother had caused him to fall onto the roadway, and that the mother had smashed a rock onto the father’s windscreen. He alleged that the children were traumatised.
The father took the children in his car to the police station and made a complaint. The mother was charged with aggravated assault and property damage, arrested and granted bail. The father alleged that the children were frightened of the mother after witnessing the fracas, which led to him retaining them in his care.
On the first return date, being 26 May 2015, the court ordered telephone communication during the period of the adjournment between the children and their mother, the father to have the telephone on loud speaker if he so wished and further that the parties and the children attend upon a Family Consultant for a Child Inclusive Conference.
The Child Inclusive Conference took place on 4 June 2015, with Family Consultants T and G preparing a memorandum to the court. The children were interviewed separately for the purposes of that memorandum, with the Family Consultants noting there were no indications of “inappropriate influence” in either [X] or [Y], [X] however apparently presented as slightly reserved and emotionally burdened, with [Y] being more forthright.
The children were clear in their discussions with the Family Consultants that their parents did not get on well, with [X] being very clear as to his knowledge of his mother not liking his father but apparently less aware of his father’s views about his mother.
It was clear from their reports to the Family Consultants that the incident had scared both of them and both expressed a preference to remain living with their father. The children clearly loved both parents but expressed feeling safe at all times with their father but less so with their mother.
The mother expressed a firm belief to the Family Consultants that the children had been coached by the father. At trial the mother was still firmly of the view that the children had been coached as to their views by the father.
The Family Consultants were not called as witnesses at trial and the contents of their memorandum were untested.
On 12 June 2015, following upon the Child Inclusive Conference, the court ordered that until further order the children live with the father and spend time with the mother on three consecutive Sundays from 9:00am until 4:00pm and thereafter from 9:00am Saturday to 4:00pm Sunday on alternate weekends. Further time was ordered to occur from 3:00pm or the conclusion of school Wednesday until 9:00am or the commencement of school the following Thursday in each alternate week. Telephone communication with their mother was ordered to occur at their reasonable request.
Mediation at the Legal Services Commission of South Australia was ordered but was unsuccessful, notwithstanding that the parties by then had the benefit of a Family Report prepared by Ms B dated 31 August 2015.
On 25 September 2015 following upon the family dispute resolution conference at the Legal Services Commission, a further order was made by the court by consent increasing the children’s time with the mother from two overnight periods every two weeks to four overnight periods.
Part of the consent order required the parties to attend at a Kids Are First Post Separation Parenting Program and to take all steps necessary and obtain a referral to engage with a separate therapist skilled in working with domestic violence, attend at all appointments as scheduled by their therapist, and obtain a report from the therapists at the conclusion of the therapy and provide a copy to the other party.

The parties were also ordered to take all steps as may be necessary to obtain a referral for the children to consult with a psychologist for therapeutic intervention. The parties were ordered to take the children to all appointments scheduled by the therapist when the children were in their care.
On 15 October 2015 the mother failed to return [Y] to the care of the father as required by order of 25 September 2015. On 21 October 2015 the father filed an application in a case seeking [Y]’s return together with a suspension of the consent order of 25 September 2015 as to the children’s time with the mother. He sought that the order be replaced by an order for the children to spend time with the mother on a supervised basis at a Children’s Contact Service or otherwise supervised by the paternal grandmother and that the mother be psychiatrically assessed.
At the hearing of that application in a case on 23 October 2015 the court noted that the mother would thereafter comply with the orders of 25 September 2015 and an order was made for the parties to facilitate the children’s attendance on Ms S child psychologist, with the application being otherwise dismissed.
On 24 February 2016, being the adjourned date from the hearing on 25 September 2015 the matter was listed for trial on 8 March 2017, with directions adjourned to 15 April 2016.
On 1 April 2016 the mother filed an application in a case seeking that the children live with their parents on a week about basis and that the father be restrained from allowing the children to come into contact with his brother [Z]. She sought that the parties inform the other of any serious accident or illness in relation to the children and that the parties be at liberty to attend the children’s school or any place of any extra-curricular activity in the week that the children were not living with the other parent.
At the hearing on 15 April 2016 the trial was able to be brought forward to 1 June 2016 as a result of unexpected court availability. On the same day the court ordered that the children’s ordered time with the mother on each intervening Wednesday overnight be extended such that it occurred on Wednesday of each week.
The criminal charges faced by the mother arising from the incident on 29 April 2015 had been finalised on 25 January 2016, when the charge of aggravated assault was withdrawn with a costs order in her favour of $3,600. The mother pleaded guilty to throwing a rock at the father’s windscreen and was put on a bond to be of good behaviour for a period of 18 months without a conviction being recorded.
Subsequent to that and prior to the hearing to which I have referred on 24 February 2016 the parties attended for further family dispute resolution at the Legal Services Commission on 17 February 2016, but again their efforts to resolve the matter were unsuccessful.
At the time of trial the children were spending five nights per fortnight with the mother and nine nights per fortnight with the father.

Relevant Legal Principles

Part VII of the Family Law Act 1975 (as amended) provides the legislative framework within which the court determines the parties competing parenting proposals. Section 60B(1) sets out the objects of the Act as regards to children’s orders, namely to ensure that the best interests of the children are met by:-
a)ensuring that the 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 children; 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 the children receive adequate and proper parenting to help them achieve their full potential;
d)ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the object are set out in Section 60B(2) and provide that, except when it is or would be contrary to the 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;
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).
The best interests of the child are the paramount consideration in determining whether to make a particular parenting order. [1] To determine the best interests of a child the court must consider the factors set out in section 60CC(2) and (3) of the Act.
[1] Section 60CA Family Law Act 1975 (as amended)
Section 61DA of the Family Law Act 1975 (as amended) provides that when making a parenting order in relation to a child the court must apply a presumption that it is in the best interests of the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or family violence, and may be rebutted if the court is satisfied that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility. [2]
[2] Section 65DA(1)(2)(4) (supra)
In the event that an order is made for equal shared parental responsibility the court must consider whether it is in the child’s best interests to spend equal time with each of his or her parents and whether it is reasonably practicable for this to occur. [3]
[3] Section 65DAA(1)(supra)
If the court determines that such an order is not in the child’s best interests, it must consider whether it would be in the child’s best interest to spend substantial and significant time with each parent and whether that is reasonably practicable. [4]
[4] Section 65DAA(2) (supra)
The Act defines what is meant by substantial and significant time, [5] and specifies that the court must have regard to certain issues when deciding whether orders are reasonably practicable. [6]
[5] Section 65DAA(3) (supra)
[6] Section 65DAA(5) (supra)
All of those issues must be considered against the backdrop of the requirement that the parenting order the court makes must be in [X] and [Y]’s best interests, as determined in accordance with the provisions of Section 60CC of the Act, being mindful of the objects of the Act and the principles underlying those objects.

Evidence and Findings

It is convenient to deal with the areas of dispute in this matter by way of considering the parties’ evidence as it applies to the relevant provisions of the legislation.

Section 60CC(2) – Primary Considerations

a) the benefit to the child of having a meaningful relationship with both of the child’s parents.

The court had the benefit of not only hearing from the parties and the mother’s partner in these proceedings, but also from Ms B the Regulation 7 Family Consultant who prepared the Family Report dated 31 August 2015.
The orders proposed by each of the parties contemplated the children having a meaningful relationship with the other of them.
The order proposed by the applicant mother would see the children living with her and spending three nights per fortnight with their father, as well as half of the school holiday periods, and with the children having an opportunity to spend time with each of their parents on special occasions.
The orders proposed by the father would see the children living with him, [X] continuing to spend time with the mother in terms of the existing order, being five nights per fortnight and [Y] spending time with her for a period of up to seven nights per fortnight. They would also spend half of the school holidays with each parent and equal time on special occasions.
Ms B, on pages 27 and 28 of her Family Report, referred to the positive interactions of both of the children with both of their parents, with such interaction being indicative of a close relationship with each parent.
The children had, between April/May of 2012 and the time of trial in June 2016, experienced being primarily cared for firstly by their father for a few months, then by their mother for two and a half to three years and then by their father for about a further twelve months. Other than for the twelve months or so immediately leading up to trial the children’s parenting arrangements had all been by agreement between the parties.
I find that a consideration of the children’s living arrangements since the parties separation, together with the parties current care proposals for the children, that they each acknowledge that it is to the benefit of the children to have a meaningful relationship with the other of them, although they disagree as to how that is best achieved.
I find that [X] and [Y] have a good relationship with each of their parents and that it is to their benefit to have a meaningful relationship with both parents.

b) the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse neglect or family violence.

At the time of trial the parties had been separated for about four years. It was the mother’s case that the marriage had broken down because of domestic violence. She did not depose to details of the alleged violence and although in cross-examination she said she had made complaints to the police about that issue during the parties relationship and after separation there was no further detail provided by her.
The father denied that he was violent to the mother, but rather deposed in paragraphs 69 to 91 of an affidavit filed on 22 May 2015[7] to her being violent towards him.
[7] Paragraph 8 – father’s trial affidavit filed 17 May 2016
In that evidence he deposed to the mother having alcohol and methylamphetamine issues from the time that they met, to the mother having severe mood swings, to her punching him in the head in mid-2006 resulting in him restraining her, to her throwing a glass at him hitting him in the elbow and chipping a bone and to her having king-hit him in the face whilst he was driving and in the presence of the children. He also deposed to being hit over the head by the mother using a door. He deposed to that causing him to be unable to work for a period of time.
There was no evidence that either party had ever sought intervention orders, but I am satisfied that the children were present and observed incidents of domestic violence in the family home prior to separation and certainly on 29 April 2015.
It was the incident on that occasion that led to the father removing the children from the care of the mother and to the mother being charged with aggravated assault and property damage. The aggravated assault charge was ultimately withdrawn with a costs order against police in the amount of $3,600. The mother was placed on a good behaviour bond for a period of 18 months with no conviction recorded in relation to the property damage charge.
The incident clearly frightened both children very much. It occurred at the home of the mother in circumstances where there was a dispute as to handover arrangements, the father allegedly entering the mother’s home in the absence of the mother at the invitation of [X], and a fight occurring resulting in the mother being charged with aggravated assault based on a statement from [X] to the police.
Each party alleged they had been assaulted by the other, but there was no doubt that the mother had thrown a rock on the windscreen of the father’s car. There were no charges laid against the father.
In their discussions with Family Consultants T and G on 4 June 2015, both children referred to being very sad about what had happened between their parents, with both children identifying their mother as the instigator of violence and the father trying to defend himself.
[X] described being scared that his “mum would get really angry” and [Y] said that she was scared one of her parents would be injured. Both children at that time told the Family Consultants that they were reluctant to see their mother but that they were becoming less scared and [Y] was ready to say “hi” to her mother.
Both children described feeling safe in the care of their father and not so safe in the care of their mother.
The children discussed the issues again with Family Consultant Ms B as reported on pages 22 and 23 of the Family Report. Notwithstanding a clear lack of ability to communicate effectively on the part of both of the parents, I am satisfied that the incident on 29 April 2015 could best be described as “situational violence”. That is not to say that the behaviours of either party was acceptable, particularly in the presence of the children. Not only were the children scared by the incident itself but it resulted in them having to speak with police about their parents behaviour.
Nevertheless, there was nothing in the evidence that suggested that there had been a repeat of any of the violent behaviour, save and except [Y]’s report to Family Consultant Ms B that her father smacked her on the back when she got into trouble at his home, which was why she didn’t want to live with him (Family Report page 24).
I am satisfied that orders requiring the parties to communicate respectfully generally but in particular in the presence of the children and restraining them from denigrating or criticising the other of them to the children or in their presence or allowing any other person to do so will be sufficient to protect [X] and [Y] from exposure to family violence.
I find an order restraining both parties from disciplining either of the children physically would also be sufficient to ensure that the children are not subjected to any form of abuse.
Notwithstanding their differences, these are two parents who love their children and although I take into account what [Y] said about being smacked by her father I am not satisfied that I could make a finding that he had subjected her to abuse.
Both of these children are well aware that they are the centre of conflict in a very conflicted parental relationship. In those circumstances I am satisfied that their comments should be treated with caution. That is not to say they should be ignored.

Section 60CC(3) – Additional Considerations

a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views.

At the time of trial [X] was aged 12 years and [Y] was aged 8 ½ years. They were described by Family Consultants T and G as engaging comfortably with them, to there being no indications of inappropriate influence in the children and to [Y] impressing as more forthright than [X].
Ms B described [X] as a lovely young man who managed the process well, to being nervous during discussions with her but responding to questions asked of him.
[Y] was described in paragraph 69 of the Family Report by Ms B as being a delightful young girl, engaging well in the assessment process, but to her demeanour changing during the general discussion such that she appeared unsure and worried, particularly in relation to the discussion about the violent incident between her parents in April 2015.
The extent of [Y]’s concerns was reflected in the comments of the Family Report writer in paragraph 74 of her report, where she recorded [Y] asking her (Ms B) if she had experienced something similar in her life to what [Y] had experienced in observing the violence between her parents.
The court is best assisted in considering views expressed by the children by looking at the only objective evidence as to those views, which is found in the report of the Family Consultant.
In paragraph 83 of Ms B report she described [X] as being clear in his view that the mother had been the aggressor in the violent incident between the parents in April 2015. [X] also reported to Ms B concerns about the mother’s use of alcohol and reported smelling alcohol on his mother’s breath at the time of the incident and in the past also. He described to Ms B the fact that he and [Y] were frightened at the time of the incident and that they were both too frightened at that time to remain with their mother.
[X] told Ms B that at the time of the interviews for the report he had no concerns with the time that he was spending with his mother, and would like to increase that time but remain living with his father.
Ms B considered that the way [X] provided information was reliable. She did not concur with the mother’s view that [X] had been coached in his views by the father. She did not waver from this view in cross-examiniation.
Ms B’s observations of interactions demonstrated a positive and loving relationship between [X] and each of his parents.
Ms B summed up views expressed by [Y] in paragraphs 84 and 85 of her report. She described [Y] telling her that she felt too frightened to remain with her mother at the time of the incident, and further reported [Y] being able to say that the mother had hurt the father during the incident but being reluctant, and indicating the father had advised her not to say anything about him hurting the mother.
Ms B described the information about [Y] being told by the father not to tell the truth as being worrying but not easily clarified. She said [Y] told her that she was unable to breathe when she attended at the police station after the incident, and expressed concern about both of her parents being in trouble.
Ms B described [Y] being sad when talking about her father smacking her on her back as a form of punishment and described her as apparently expressing concern about that issue to her mother. She confirmed that although she had felt scared of her mother at the time of the incident she no longer had any concerns in that regard and was clear in expressing to Ms B (paragraph 72 of the report) that she wanted to live with her mother and spend time with her father. She did not express any fear of her father.
Ms B expressed concern in her report (paragraph 88) as to the impact on the children of observing the violent incident in April 2015, and expressed the view that a more “shared approach” towards the children’s care might be appropriate after the parties had engaged with and demonstrated progress towards addressing the issues of concern (paragraph 87 of the report) identified by her under the heading “Issues in dispute” on page 5 of her report, being allegations of violence, drug and alcohol abuse and high conflict. It was obvious that there was still a high level of conflict between the parties at the time of trial.
I find that the mother’s attitude towards the father was overall scathing. Even when given the opportunity in cross-examination to give examples of positive parenting attributes she was unable to do so, in contrast to the father who gave evidence to the effect that in many respects the mother was a “good mum” but with whom he found it extremely difficult to communicate.
Neither party had a good or positive view of the other of them and the father’s admitted communications to the mother as to her partner were quite frankly appalling, and acknowledged to be so by the father.
Although the court is satisfied that [Y] expressed a wish to live with her mother and [X] expressed a wish to remain living with his father but was open to some additional time with his mother, I find that their views should be given weight but not form the basis of the courts decisions. These children have clearly been exposed to an extraordinarily high level of conflict and love both of their parents. In those circumstances they should to my mind be entitled to have the court make a decision for them, taking their expressed wishes into account in the context of the other relevant factors.

I find that the children had both to an extent been traumatised by the incident witnessed on 29 April 2015. The incident put into sharp focus the extent of the animosity between their parents, which was clearly very unsettling for them.

b) the nature of the relationship of the children with:

each of the child’s parents; and

any other persons (including any grandparent or other relative of the child).

I am satisfied, particularly from the observations of Ms B of the children with each of their parents and her discussions with the children as to their views and perceptions of their parents, that the parents and the children have mutually loving and caring relationships.
It was not in dispute that for some at least three months immediately post-separation in 2012 the mother was sufficiently satisfied as to the father’s parenting capacity that she elected to leave the former matrimonial home and leave the children in the care of the father.
On her own evidence she did not spend significant time with the children during that period, when according to her she was trying to put arrangements in place to resume the care of the children.
It was common ground that the mother moved back to the former matrimonial home somewhere between July and September of 2012 at the instigation of the father and resumed the full-time care of the children.
The children remained in the primary care of the mother for approximately the next two and a half years prior to the violent incident in April 2015 that resulted in the children going into the care of the father. They remained in his primary care at the time of trial.
I find that [X] and [Y] are children who have had significant experience living in the primary care of each of their parents. There was no evidence to suggest that the children had other than a secure relationship with each of their parents, save for a period of time after the April 2015 incident where, I am satisfied, both children had a level of fear of their mother and did not feel safe in her care.
I find that Ms B’s reports of her interviews with [X] and [Y] as described in pages 22 to 24 of her Family Report indicated that some four and a half months or so after the incident both children remembered what occurred quite vividly, although their level of fear of their mother had abated.
I find that at the time of trial that the children both had a close and loving relationship with each of their parents.
The Family Report was to include observations of interaction between not only the children and their parents but also their parents partners (paragraph 5 of the order of 12 June 2015). Neither of the partners attended for the assessment, as reported by Ms B on page 2 of her report, with the mother saying that her partner was unable to attend due to work purposes and the father telling Ms B that he believed his partner did not need to attend because they did not reside together.
The mother’s partner Mr T filed an affidavit on 4 May 2016 in respect of which he was briefly cross-examined. In his affidavit he set out evidence as to family life in the household of he and the mother which I find to be uncontroversial and supportive of the mother and the children. I am satisfied that the children have a good relationship with Mr T and that it is more than likely that both [X] and [Y] feel loved and supported by him.
There was no evidence from the father’s partner.

c) the extent to which each of the child’s parents has taken or failed to take the opportunities:

to participate in make decisions about major long term issues in relation to the children;

to spend time with the children; and

(iii) to communicate with the children.

The parties separated in 2012. The only significant long-term issue that occurred between the date of separation and the date of trial related to the children’s education.
In or about mid-2013 the mother relocated with the children from a rental property at (town omitted) where the parties had lived as a family to a property at (town omitted). At that time [X] was aged approximately 9 and [Y] approximately 5 ½ years of age.
There was no dispute that the mother made that move without any consultation with or notice to the father of her intention.
It was the mother’s evidence that she made the decision unilaterally because of fears of harassment and violence from the father. The mother was cross-examined in relation to the matter and said she had moved to be closer to her family and to move away from the father because he came to hers and the children’s house uninvited.
She also said in cross-examination that the father was not consistent with seeing the children when they lived nearby, which seemed inconsistent with her complaint as to the father visiting uninvited. She said that the children were not getting enough help at school, with [X] being about one year behind in his progress.
The mother’s evidence as to the reasons for her unilateral decision to move was unconvincing and, as to the allegations of fears of harassment and violence from the father, vague and unsubstantiated. It is not in dispute that this was not a decision in respect of which the father had an opportunity to participate.
Post-separation in 2012 I am satisfied that the mother took time with the children as regularly as possible taking into account the requirements of her work roster. Nevertheless, it appears on her evidence that that was approximately one weekend in every three as well as time after school and telephone communication.
Once the children moved back to the primary care of the mother from somewhere between July and September 2012 to April 2015, it is common ground that the children spent regular time with the father, with the mother saying they spent alternate weekends with him and with the father’s evidence being that it was far more regular.
In addition to spending time with the children on weekends I accept the father’s evidence that he frequently attended at the home of the mother and the children to assist with the children’s care whilst the mother was at work and to share meals. This is presumably what the mother meant by the father visiting regularly without invitation. I accept that the frequency of these arrangements diminished when the mother moved to (town omitted), with the father eventually moving to the (omitted) area, but nevertheless not as close to the residence of the mother and children as was the previous situation.
I am satisfied that post-separation the mother excluded the father from any chance to participate in decisions regarding school for [X] and [Y] when she unilaterally moved from (town omitted) to (town omitted). That was consistent with the position of the mother at trial when she sought an order for sole parental responsibility.
In cross-examination the mother said that she was worried that if there was an order for joint parental responsibility the father would be spiteful and “go against her” and that he had done so in the past, for example in relation to sport.
In cross-examination she said that she would definitely communicate with the father as to the children’s health and wellbeing if she had sole parental responsibility, and she denied that she wanted the father excluded from this important role in the children’s lives. She said “it doesn’t work” when they are jointly responsible for decisions and that the father had told her years ago that she was better at that sort of thing than him.
She conceded that both parties should be involved if, for example, decisions had to be made about the children having surgery.
I am satisfied that the father is vitally interested in his children’s wellbeing as is the mother, and that he would at least have participated in the decision making process with respect to the children’s school if he had been given an opportunity so to do. Whether the parties would have agreed is another matter.
I am also satisfied that post-separation, despite the children’s differing living circumstances from time to time, both parents have taken every opportunity to spend time with the children and communicate with the children, with the father moving to live closer to the children subsequent to the mother’s move to (town omitted).
Prior to the matter being brought to court by the mother in May 2015 the parties had always managed arrangements for the children’s time with each of them by negotiation, albeit that that was frequently an acrimonious process.
Following upon the orders of the court of 26 May 2015 and 25 September 2015 both parties complied with those orders until the mother failed to return the children to the father’s care on 15 October 2015 pursuant to the terms of the order of 25 September 2015. Following upon the father filing an urgent application in a case seeking the return of the children, which was listed for hearing on 23 October 2015 the mother returned the children to the father’s care and between then and the time of trial both parties had complied with the orders.
I am satisfied that both parties want to spend as much time as possible with each of the children.

ca) the extent to which each of the child’s parents has fulfilled or failed to fulfil the parents obligations to maintain the child.

There was no evidence to suggest that either party is not capable of maintaining the children, although the mother did have some complaint about the father’s reluctance to contribute to costs of extra-curricular activities and in particular health care costs for the children. Those issues were not however a matter of significant dispute in these proceedings.

d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any:

either of his or her parents; and

any other child, or other person (including any grandparent or other relative of the child) with whom she or he has been living.

As I have stated previously in these reasons, these children are both used to having their primary care provided by each of their parents. In the period between separation and trial the mother was the primary parent for some two and a half years and the father for somewhere between 15 and 18 months.
The father conceded in his evidence in chief given orally at trial that it would be in the interests of [Y] to spend additional time with her mother. It was his position that [X] should remain living with him and continue to spend time with his mother in accordance with the existing orders.
[X] had stated to Ms B during the interviews for the Family Report that he was happy with an increase in time spending with his mother. The interviews took place on 29 July 2015, prior to consent orders being made on 15 September 2015, increasing the children’s time with their mother from two nights to four nights per fortnight. On 15 April 2016 the time [X] was to spend with the mother pursuant to the order of 25 September 2015 was increased from four nights per fortnight to five nights per fortnight. That increase mirrored [X]’s comments to Ms B, as set out in paragraph 67 of her Family Report.
At the same time, namely 15 April 2016, [Y]’s time with her mother pursuant to the order of 25 September 2015 also extended to five nights per fortnight. This variation was achieved by providing for an order for overnight time during school term time on Wednesday night of each week rather than each alternate week.
The order proposed by the father with respect to [Y] envisaged the incorporation of an “extra night or so” each fortnight, which he considered to be an “excellent idea”. He was of the view that there should not be the further extension with respect to [X].
The mother’s proposals would have [X]’s living arrangements dramatically changed such that he would go from spending nine nights in his father’s care and five nights in his mother’s care each fortnight to three nights out of every fourteen nights with his father and the other eleven nights each fortnight with his mother during school term time. There was no dispute between the parties that the children would spend equal time with them during school holidays.
The mother acknowledged in cross-examination that the orders she was proposing were not respectful of [X]’s wishes but she said that she believed that it was in his best interests as he was not completing homework, he had a processing disorder, he was falling behind and she was concerned that if he continued to spend the majority of his time during school term time with the father he would lose confidence and struggle.
She acknowledged that [X] had had those same problems for years but when it was put to her that they may be nothing to do with the father or his parenting, she said it was her belief that they were because [X] was falling behind and the father was not helping him to move forward, for example by insisting on him completing his homework.
When it was put to her that both children were progressing very well at school she replied “on the surface” and when asked to elaborate said that when children are young it is hard to notice them falling behind. She further expressed the view that [Y] was also falling behind.
In answer to a question from the court the father expressed the view that he was not concerned about the children spending different times with their mother.
I commented earlier in these reasons about being concerned that these children, who have experienced a highly conflicted relationship between their parents, should have orders based solely on their wishes.
Each party gave evidence in their trial affidavits as to what the children had allegedly said to each of them about the other parent. In cross-examination the mother conceded that although it was her belief that [Y] expressed her genuine wishes to her because she knows her mother listens she also accepted that children tell their parents things that they think that parent wants to hear.
Overall however, I am satisfied that [X] in particular is of an age where the court should not lightly ignore his wishes. I am satisfied that he has clearly expressed a wish to primarily live with the father and that effectively that has been acknowledged by the mother, when she concedes that her proposal is not in accordance with [X]’s wishes.
By the same token I am satisfied that [Y] seems to be more closely aligned with her mother, which is acknowledged by the father.
I am concerned that the orders proposed by the mother do not provide a framework for effective support of the children’s relationship with their father. I am satisfied that [X] would have significant difficulties managing a reduction in the amount of time that he spends with his father as proposed by his mother, and that to reduce [Y]’s time with the father as proposed by the mother is likewise going to be a very significant change in her living circumstances. These are children who suffered significant trauma in April 2015 and to my mind need regular support from both of their parents.
I am also concerned about the amount of time both children are exposed to the mother’s view of the father’s parenting, namely that he is uninterested in and incapable of effective parenting. I am concerned this may have the effect of undermining the confidence the children hold in their father’s parenting.
I find that the orders proposed by the mother are not likely to support the best interests of the children as those proposed by the father.

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.

This factor is not relevant in these proceedings. The parties live reasonably proximate.

f) the capacity of:

each of the children’s parents; and

any other person (including any grandparent or other relative of the child) to provide for the needs of the child including emotional and intellectual needs.

It is the mother’s case that the father is not a competent parent when it comes to providing for the needs of the children, particularly their medical and educational needs.
She was questioned about this view in cross-examination and conceded that she left the children in the care of the father when she left the relationship. She denied that she did not have any concerns about leaving the children in the father’s care but said that she did not think that they would die or would be seriously harmed. She agreed, when it was put to her, that she was of the belief that the father is unable to take care of the children’s medical needs, their schooling and their educational needs. She agreed she thought his parenting was inferior to hers.
She deposed to always having taken primary responsibility for ensuring the children’s attendance at school, their involvement in extra-curricular activities and attending to their medical needs.
The father’s evidence was that when the children were in his primary care he ensured that they attended at school and in particular on a regular basis, that he assisted with homework, that the children were both progressing well at school, that he attended to all necessary medical needs of the children and that he made medical appointments for them and took them to the appointments when necessary.
He agreed that he had declined to pay for half of [Y]’s glasses on one occasion. He said that he had previously made an appointment for her in relation to that issue, the appointment had been cancelled by the mother who then made her own appointment with the child, and he took the view that whoever took the children to those appointments should pay any gap fees.
It was common ground that [X] had experienced some difficulties at school, but although the mother was of the view that he had not improved the father said that [X] had significantly improved, that he was attending to his homework, that the father was assisting him with his homework and that fairly proximate to trial he had received an award for his homework.
He agreed that on occasions he did not meet the mother’s expectations in terms of taking the children to all of their extra-curricular activities but in circumstances where he said the mother did not pay child support, it was necessary for him to work as much as possible to support the children. It was his evidence that sometimes attendances at extra-curricular activities, particularly on Friday evenings was not possible, but was clear in his evidence that if the mother wished to take the children or either of them for extra-curricular activities during their time with him he was happy for her to do so.
It was the father’s evidence that the mother made much complaint about his lack of attention to the children’s medical needs but said that in the main they did not have complex medical needs and they were properly attended to whilst in his care. There was no evidence to the contrary.
He conceded that he had taken longer than he should have to make an appointment for [Y] for therapeutic counselling pursuant to the recommendations of Ms B, but said that by the time of trial she had had three appointments and they were continuing. It was his evidence that [Y] was progressing well and further that he had made an appointment for [X], even though [X] was reluctant to attend for counselling.
There was no objective evidence before the court about either of the children having any particular unmet educational or medical needs. I am satisfied that both parents have the capacity to provide for the children’s educational and medical needs as well as to provide for the children’s day-to-day physical needs during the time the children are in their respective care. I do have some concern however about both parents, but particularly the mother, with regard to the question of capacity to provide for the children’s emotional needs.
I am satisfied that both of the parties have discussed issues before the court with the children. Both [Y] and [X] made comments suggestive of each of the parents having inappropriate discussions with the children, although I am certain that in circumstances where both of the children were traumatised by the incident in April 2015 they raised the issues themselves with each of their parents. Nevertheless, I am mindful that [Y] told Ms B that one of the reasons that she was worried about staying with her mother after the April 2015 incident was her belief that the mother would want to talk about the incident and that neither she nor [X] wanted to do so (page 23 of the Family Report).

The mother gave evidence both in chief and by way of cross-examination in relation to discussions that she had with [Y] about [Y]’s relationship with her father. The father clearly had discussions with the children particularly at the time of the incident of April 2015 and the time immediately following.
It is very important in a matter where there is such a high level of acrimony that the parties don’t either deliberately or unintentionally place further burdens on the children by facilitating their participation in the dispute.
I am concerned as to the mother’s inability to see any positive aspects to the father’s parenting capacity. I am satisfied that such an opinion is not borne out on the evidence. I accept that it is likely that the mother has had a greater role in attending to the children’s educational and medical needs over the years, in circumstances where the father acknowledged the mother’s capacity in that regard. Of more recent time he has had a level of restriction in his capacity to attend to some of these issues when he needs to generate sufficient income to support the children in the absence of child support at any reasonable level or at all.
I find however that where appointments for medical reasons are necessary and where it is necessary to place emphasis on [X] in particular on completing his homework, the father has attended properly to those matters.
The father, although critical of the mother’s approach to cooperative parenting, is certainly not critical of the mother’s capacity to care for the children and attend to all of their needs, save and except that he has some reservation about the mother’s diligence in ensuring that the children attend school on every relevant school day. I am mindful however that on his own evidence he allowed [X] to stay home from school on his birthday, which does not seem to be an approach beneficial to [X].
The mother was forthright in her views, and I have little doubt would not be reluctant to make those views plain to the father in the presence of the children if she was so inclined.
It is important that the mother be vigilant in not doing so as such expressions of disdain may well have the effect of undermining the children’s confidence in their father.
I would be particularly concerned that if [Y]’s day-to-day care arrangements were dramatically altered in accordance with the mother’s proposals that she, in particular, would be susceptible to exposure to the mother’s very firmly held negative views of the father and in particular of his parenting capacity, such that it may impact on the quality of [Y]’s relationship with her father.
I do not find that that would in her best interests.

g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.

[X] and [Y] have good relationships with each of their parents. They have had the opportunity to experience the primary care of each of their parents individually for significant periods of time since the parties separated in 2012. Each of their parents have different strengths and weaknesses, skills, interests and life experiences.
I find it is to the benefit of both of the children to be able to spend significant time with each of their parents so as to experiences as wide a variety as possible of influences and exposure to differing forms of problem solving. They are both children who want to spend time with their parents and share experiences with them, and I find that it is in their interests so to do.
It is perhaps not surprising, taking into account the ages and sex of the children that [X] is gravitating towards more time with his father and [Y] with her mother.

h) if the child is an Aboriginal child or a Torres Strait Islander child:

the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

the likely impact any proposed parenting order under this Part will have on that right.

This factor is not relevant in these proceedings.

i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

As I have said previously in these reasons both of the parties in this matter love their children. I am satisfied that they are both using their best endeavours to undertake and deliver on their responsibilities as the parents of [X] and [Y] and that to the most part they have been able to achieve that outcome.
I have expressed my concern about both parties exposing the children to their attitudes with respect to the other of them, although I am satisfied that it occurs less in the household of the father than in the household of the mother.
To my mind a particular responsibility of parenthood on the part of any parent is to ensure their children feel free to love the other parent without feeling any sense of disloyalty and to not undermine the confidence of a child in the other parent. To compromise children with respect to either of these issues leads them to feel insecure.
Although it is clear from the father’s evidence that he considers the mother to be very difficult and to be attempting to control his parenting of the children, I am satisfied that he is overall supportive of the mother’s parenting capacity, as evidenced in particular by him voluntarily facilitating the mother taking on the primary parenting role in the latter part of 2012, post-separation, and in not taking any steps to interfere in that role until the incident in April 2015.
Overall the tenor of the father’s evidence, particularly in cross-examination, was less critical of the mother’s parenting than the tenor of the mother’s evidence towards the father’s parenting, particularly in cross-examination.
It was clear from her response to questions in cross-examination that she considered that the father’s parenting capacities were far inferior to hers and she clearly had no confidence that they would improve in the future.
I do not share the mother’s view. I am satisfied that the father is appropriately dealing with the children’s health and educational needs in particular, even though I accept historically post-separation that was primarily the role of the mother.
I do not accept that he is neglecting aspects of the children’s education nor their medical needs, nor do I accept that the children have serious educational difficulties or medical concerns.
There is no doubt that the father was somewhat tardy in obtaining the psychological assistance ordered for [Y] but I am satisfied that by the time of trial he had attended to that and was commencing to attend to [X]’s needs in that regard. I am satisfied that [X], overall, was less confused by the events of April 2015 than [Y]. That is not to say that both of the children were not very frightened indeed of the events of the day.

j) any family violence involving the child or a member of the child’s family.

I have already referred at length to the incident on 29 April 2015 and the serious impact witnessing the fight between their parents, and in particular their mother’s role in that fight, had on the children at the time and for some time following.
It is clear from [X]’s views as expressed to the Family Consultant that although he witnessed both of his parents fighting, his perception was that his mother had a greater role to play in the aggression on the day. [Y] told the Family Consultant that she certainly saw her mother being violent to her father but she was resistant, for some unknown reasons, to discussing the issue of her father being violent to her mother.
Nevertheless, both children were reluctant to spend time with their mother for a period of time after the incident. [Y] still seemed confused about those matters at the time of the preparation of the Family Report. [X] at that time still remained cautious about spending any significant additional time with his mother.

k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

the nature of the order;

the circumstances in which the order was made;

(iii)any evidence admitted in proceedings for the order;

any findings made by the Court in, or in proceedings for, the order; and
any other relevant matter.

This factor is not relevant in these proceedings. The parties live reasonably proximate.

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.

In this matter as in any other matter that comes before the court it is hoped that the orders made on 15 June 2016 have been and will continue to be complied with by the parties. It is of course extremely disruptive for children to be the subject of long-term litigation between their parents.

m) any other fact or circumstance the Court thinks is relevant.

The court does not consider there are any other relevant circumstances in this matter.

Parental Responsibility

The mother sought sole parental responsibility in circumstances where it was her view that she was the one who was most suited to attending to the children’s educational and medical needs and also that the parties level of communication was such that it was, to her mind, unworkable to operate under an order for equal shared parental responsibility that may require negotiation about significant long-term issues.
Nevertheless, the mother’s evidence was that she was prepared to keep the father informed about all of those issues and to consult with him about matters such as, for example, surgery.
Her unilateral actions in moving the children’s residence and making new arrangements for their education in 2013 were not reflective of someone who was interested in conferring about significant issues with the other parent. I do not accept the evidence of the mother as to wanting to relocate away from the father at that time because of fear of harassment and violence.
I am satisfied that the mother wanted to move to (town omitted) to be closer to her family.
I am mindful that subsequent to the mother’s move the father made significant changes to his own domestic arrangements and moved firstly to (omitted) and then to (omitted).
I accept his evidence that he did so to remain close to the children and to be able to participate as much as possible with their day-to-day lives taking into account his work commitments.
The father sought an order for equal shared parental responsibility. Overall I found the father’s attitude to the mother and to the children’s needs to be significantly more conciliatory than the mother’s attitude towards him. There is no doubt however that the text messages that the father sent to the mother particularly about her relationship with her partner were appalling.
Nevertheless, I find that the father had reflected on the nature of that communication and by the time of trial had acknowledged that his behaviour was entirely inappropriate and in respect of which he had a level of remorse. Overall I found the father to be more capable of reflection on his actions than was the mother.
The parties do not communicate at all well. Nevertheless, parental responsibility of course relates not to “every day” issues relating to care of the children[8] but rather requires that decisions should be made jointly by parents who share parental responsibility with respect to major long-term issues relating to a child.[9]
[8] s.65DAE (supra)
[9] s.65DAC (supra)
The parents in this matter, as I have said previously, love their children. I am satisfied that they are both interested in their children’s education and in ensuring that both of the children progress in that regard to the best of their ability.
I also find that both of the parties have a responsible attitude to [X] and [Y]’s health needs, and ensure that they receive such health treatment as is necessary whilst in their care.
I find that the father is amenable to the mother assisting in taking the children to various appointments or extra-curricular activities whilst they are in his care in the event that he is unable to do so because of his work commitments, although he does not require her to do so.
I also find that the mother is anxious to attend to as many of the children’s educational and health needs as possible, but that the court should be cautious in making orders that would facilitate the mother having the ability to assume total control in that regard to the exclusion of the father.
There did not seem to be any evidence called by either party as to likely disputes about which school the children should continue to attend, with the father having deferred to the mother in that regard when she unilaterally changed their school. She deposed to being unhappy about the children’s school prior to moving the children from that school in 2013, with the father having been satisfied with the children’s progress at the original school.
I find that the parties may be assisted in relation to ensuring a regular and consistent approach to the children’s health by choosing one general practitioner for the children to attend, noting that both parents live reasonably proximate to the other. This would provide a level of continuity in the children’s health care.
The continued use of a communication book, although it has its difficulties, would also assist the parties in facilitating the exchange of appropriate information.

Conclusion

Taking into account the matters to which I have referred with respect to an order for parental responsibility, I am satisfied that an order for joint parental responsibility would best meet the needs of [X] and [Y].
If the court makes an order for equal shared parental responsibility, it must also of course consider the matters set out in section 65DAA of the Family Law Act 1975 (as amended) namely, whether the children should spend equal time with each of their parents or whether they should spend substantial and significant time with each parent.
In considering those matters the court takes into account the factors referred to in section 65CC(2) and (3) but it must also consider whether equal time spending or substantial and significant time spending with each parent is reasonably practicable.[10]
[10] s.65DAA(1)(b) and (2)(d)
I do not consider that the children’s best interests would be met in this matter for an order for equal shared parenting time. I find that the children’s best interests would be met by remaining in the primary care of the father but spending substantial and significant time with their mother, albeit that the time each child spends with their mother will not be identical.
The mother’s proposal would result in a significant reduction in the time that the children spend with the father. I am not satisfied that such an order is in their best interests for the reasons set out herein, in particular my concern as to the mothers scathing view of the father’s parenting capacity and my concern that the children would not be protected from that view in her care.
I find for the reasons given that excessive exposure to the mother’s view may well negatively impact on the children’s relationship with their father, in particular [Y]’s relationship with her father.
I find that even with an order for joint parental responsibility I am not confident in the mother communicating with the father about any significant educational or health matters unless she was in a position where she had no option but to do so.
I find that I am less concerned as to the father exposing the children to his personal views of the mother in circumstances where I am satisfied that he does consider the mother to be a competent and capable parent and he is genuinely interested and wants to be a part of the children’s day-to-day life and development for the remainder of their childhood.
The father acknowledges that [Y] has expressed a view to the Family Consultant that she would like to live with the mother. He was certainly amendable to an extension of [Y]’s time with her mother.
I find that neither [X] nor [Y] are yet of an age where they would comprehend to any appreciable level the likely impact on them of a long period of exposure by one parent of their views as to the failing of the other parent.
I find that the mother’s proposals with respect to orders for [X]’s time with his father being significantly reduced fail to acknowledge in any way the very positive relationship [X] has with his father and his view at the age of 12 years that he loves both of his parents but would prefer his parenting arrangements not to significantly change.
It is for these reasons that I made the order as sealed on 15 June 2016.

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date: 14 July 2017

[2017] FCCA 1632

14 July 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies