Sloan and Sloan

[2017] FamCA 186

FAMILY COURT OF AUSTRALIA

SLOAN & SLOAN [2017] FamCA 186

FAMILY LAW – CHILDREN – Substantial and significant time – Where the parties agree they should have equal shared parental responsibility for the children and the children should live with the mother for not less than equal time – Where the father proposed an “equal time” arrangement – Where the interim arrangement, under which the children live with the mother and spend substantial and significant time with the father, has applied for nearly three years  –  Where the children feel emotionally closer to the mother and the Family Consultant concluded the mother is more child focussed – Where the children’s expressed views were to maintain their primary residence with the mother – Where the children were against an “equal time” arrangement and would most likely resent its implementation – Where an equal time arrangement is not in the children’s best interests – Ordered the children spend “substantial and significant time” with the father

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 61DA, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 69ZN, 69ZP, 69ZQ, 69ZX

Beckham & Desprez [2015] FamCAFC 247
SCVG & KLD (2014) FLC 93-582

APPLICANT: Mr Sloan

RESPONDENT: Ms Sloan

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Bankstown

FILE NUMBER: SYC 1444 of 2014

DATE DELIVERED: 27 March 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 6, 7, 8 & 9 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Delaney Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Bankstown

Orders

1. All former orders in respect of the following children are discharged:

   (a)B, born … 2001; and

   (b)C, born … 2006.

2. The parties shall have equal shared parental responsibility for the children.

3. The children shall live with the mother.

4. Each party shall take all reasonable steps to ensure the children spend time with the father as follows, or as otherwise agreed:

   (a)During school terms:

   (i)Each Tuesday from the conclusion of school until 8.00 pm;

   (ii)Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, commencing on the first Friday of each term; and

   (iii)Each alternate weekend from the conclusion of school on Friday until 9.00 am on Saturday, commencing on the second Friday of each term.

   (b)During the Autumn, Winter, and Spring school holidays, for the first half of such holidays in every odd numbered year and for the second half of such holidays in every even numbered year.

   (c)During the Summer school holidays, for the first half of such holidays when the holidays commence in an odd numbered year and for the second half of such holidays when the holidays commence in an even numbered year.

5. For the purposes of implementation of Order 4 hereof, the school holidays are deemed to commence at the conclusion of school on the last day of school term, the holidays are deemed to end at 7.00 pm on the last day preceding the day upon which the children are due to return to school in the new term, and the mid-point is noon on the day halfway between those first and last days.

6. Order 4 hereof is suspended during the following periods:

   (a)From 3.00 pm Christmas Eve until 12.00 noon Christmas Day each year, during which period the children will spend time with the mother.

   (b)From 12.00 noon until 8.00 pm each Christmas Day, during which period the children will spend time with the father.

   (c)Between 9.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

7. For the purposes of implementing Orders 4 and 6 hereof, the parties shall respectively ensure the children’s:

   (a)Collection from school, whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

   (b)Return to school, whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

   (c)Collection from and return to the mother’s residence.

8. Each party shall share with the other parent any information regarding the health, emotional well-being or schooling received by them during the time the children or either of them are in their respective care, including medication prescribed and/or taken, changes in behaviour, school newsletters and reports.

9. Each party shall each inform the other promptly of any illness or injury suffered by the children or either of them requiring hospitalisation or prescription medication and, in the event of the latter, each parent shall ensure that the children or either of them are provided with such medication and that it is administered to them or either of them in accordance with the directions of the treating medical practitioner.

10. Each party shall notify the other in writing of any change in address and/or telephone number within three (3) days of such change.

11. Each party is hereby restrained from denigrating the other parent within the hearing of the children or either of them, or discussing these proceedings and/or the parties’ respective financial circumstances, or from allowing any other person to do so within the hearing of the children or either of them.

12. Each party shall do all such things as may be necessary to ensure that the children or either of them may communicate with the other party at all such reasonable times as the children may reasonably request when they are spending time with the other party and in order to facilitate this, each party shall ensure the children or either of them have available to them a working telephone service and are instructed in the use of such service should the need arise.

13. Each party shall authorise any treating general practitioner and/or medical specialist to provide any information which the other party may reasonably require concerning the welfare of the children or either of them.

14. The parties shall forthwith do all acts and things necessary to remove the children’s names from the Airport Watch List.

15. The parties are restrained from causing or permitting the removal of the children from the Commonwealth of Australia without the written consent of the other.

16. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

17. The father shall pay part of the Independent Children’s Lawyer’s costs of these proceedings, assessed in the sum of $6,490.20, within four months of the date of these orders.

18. The mother shall pay part of the Independent Children’s Lawyer’s costs of these proceedings, assessed in the sum of $4,840.25, within four months of the date of these orders.

19. The parties’ costs are reserved for 28 days.

20. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

21. Any and all other outstanding applications for orders pursuant to Part VII of the Family Law Act are dismissed.

Notations

(A)Australia is a State party to:

(a)The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”), and

(b)The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”).

(B)The children are habitually resident in Australia, in the State of NSW.

(C)The parties have “rights of custody” in respect of the children within the meaning of the 1980 Convention.

(D)These orders provide limited permission for the parties to remove the children from their State of habitual residence to other countries for the purpose of holidays.

(E)Retention of the children away from Australia without the written consent of both parties will constitute a wrongful retention of the children within the meaning of the 1980 Convention.

(F)These orders constitute “measures of protection directed to the protection of the person of the children” within the meaning of the 1996 Convention.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1444 of 2014

Mr Sloan

Applicant

And

Ms Sloan

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern orders that should be made in respect of the two sons of the applicant father and respondent mother pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The parties agreed they should have equal shared parental responsibility for both boys, but they disagreed over the amount of time each child should spend in their respective care and the extent to which it should be regulated.

3. The father contended both children should be the subject of an “equal time” residential regime, which the mother opposed. She advocated for different regimes in respect of each child. She contended no orders at all should be made in respect of the eldest child, who is now 15 years of age, stipulating with whom he should live and how much time he should spend with the other parent. She contended the youngest child, who is now 11 years of age, should live with her and spend “substantial and significant time” with the father, as presently occurs under long-standing interim orders.

4. The Independent Children’s Lawyer generally supported the mother’s proposal.

Short history

1. The parties married in 1998. There was some unexplored uncertainty in the evidence about when they finally separated, but it seems the relationship finally broke down in about April 2013, though they remained living in the same home until about June 2014. The children were born in 2001 and 2006.

2. Both parties have older children to earlier relationships, all of whom are now adults. The mother’s older children (Mr D and Ms E) lived with the parties and the children, but the father’s three older children did not.

3. The father commenced the proceedings in March 2014, while the parties still lived in the same home. In May 2014, the parties consented to interim parenting orders being made which provided for them to have equal shared parental responsibility for the children, for the children to live predominantly with the mother, and for them to live with the father for substantial amounts of time. The regime of interaction between the children and the father amounted to a complicated fragmentation of time within fortnightly cycles during school terms (being several hours each Wednesday afternoon/evening, two nights each alternate weekend, and one night on the intervening weekend), approximately half of school holidays, and other special occasions.[1]

   [1] Orders made on 30 May 2014

4. Those orders were never changed and applied until the time of final trial, though the evidence established the parties often voluntarily changed arrangements to suit themselves and the children.

5. In August 2014, the parties conferred with the Family Consultant and advised her they agreed on final orders, which essentially replicated the interim orders,[2] but the father subsequently recanted and indicated his desire for the children to spend more time with him.[3]

   [2] Memorandum dated 4 August 2014

   [3] Addendum Memorandum dated 19 August 2014, paras 1, 7, 13

6. The proceedings were listed for final trial in March 2017. The Court was informed during the preceding week that the dispute was settled and terms of settlement would be proffered to the Court on the first day of trial, but they were not. The Court was informed the settlement had collapsed and so the trial proceeded.

Proposals and evidence

1. Both parties and the Independent Children’s Lawyer tendered minutes of the parenting orders they proposed.[4]

   [4] Exhibits F1, M1, and ICL1

2. The father relied upon his affidavit filed on 6 March 2017.

3. The mother relied upon:

   (a)Her affidavit filed on 6 February 2017; and

   (b)The affidavit of Ms F filed on 6 February 2017.

4. The mother was denied leave, pursuant to provisions of the Act (ss 69ZN(4), 69ZP, 69ZQ(1)(a), 69ZX(1), and 69ZX(2)), to rely upon numerous other witnesses whose evidence, by reference to the mother’s counsel’s description of it, could not have materially influenced the determination of the relatively narrow issues between the parties.[5]

   [5] Order 3 made on 6 March 2017

5. The parties and Independent Children’s Lawyer also relied upon numerous reports prepared by the Family Consultant, being:

   (a)The Child Responsive Program Memorandum dated 4 August 2014;

   (b)The Addendum to Child Responsive Program Memorandum dated 19 August 2014; and

   (c)The Family Report dated 11 November 2016.

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

4. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests

Primary considerations (s 60CC(2))

1. Despite some prevarication in the mother’s evidence, her counsel conceded in final submissions that the children enjoy meaningful relationships with the father from which they do, and should continue to, derive benefit. Similarly, there was no contest about the quality of the children’s relationships with her. Consequently, the factor prescribed by s 60CC(2)(a) of the Act had no bearing upon the outcome of the proceedings.

2. The mother’s evidence-in-chief was highly critical of the father and implied she regarded the children as being at risk of physical or psychological harm by reason of their subjection to abuse or exposure to family violence committed by him, which was somewhat surprising since she told the Family Consultant she had “no concerns” for the children in the father’s care.[6] Her criticism of him was less strident during cross-examination and, when ultimately challenged in final submissions about what risks of harm (if any) were actually alleged, the mother’s counsel confessed none. The mother resiled from any imputation about the risk of the father’s commission of abuse or family violence. Accordingly, the factor prescribed by s 60CC(2)(b) of the Act had no bearing upon the outcome of the proceedings either.

   [6] Family Report, para 21

Additional considerations (s 60CC(3))

1. Although the children enjoy valuable relationships with both parties, they feel emotionally closer to the mother, who has been their primary carer. So much is not in doubt, because the father admitted it to the Family Consultant in August 2014.[7] More recently, in October 2016, both children told the Family Consultant they feel the mother is more flexible and understanding than the father.[8] The Family Consultant concluded that, although both parents were capable, the mother was “more child focussed”.[9]

   [7] Memo 19/8/14, para 13

   [8] Family Report, paras 39, 41, 42

   [9] Family Report, para 54

2. Given the children sensed closer affinity with the mother, it was unsurprising they expressed views about maintaining their primary residence with her. The eldest child told the Family Consultant he wanted no changes made to the current parenting arrangement but, if changes were made, he would deal with them.[10] The youngest child confidently rejected the idea of an “equal time” regime, but struggled to articulate his preference for the level of his interaction with the father, most probably because he knew the father wanted to see more of him and he did not want to disappoint.[11] The Family Consultant imputed the youngest child did not want any changes made to current arrangements.[12]

   [10] Family Report, para 40

   [11] Family Report, para 43

   [12] Family Report, para 53

3. The Family Consultant considered significant weight should be attributed to the eldest child’s views because of his age and maturity,[13] and some lesser weight should be attributed to the views of the youngest child.[14] That is undoubtedly true, but the actual amount of weight attributed to their views is discretionary and the Family Consultant expressed her opinions in ignorance of more recent developments: the mother’s criticisms of the father at trial, the eldest child’s unfortunate involvement in the parties’ financial dispute, and the eldest child having declined to visit the father for some two weeks prior to trial. Those aspects of the evidence are yet to be addressed in more detail.

   [13] Family Report, para 51

   [14] Family Report, para 53

4. Little weight is attributed to the parties’ evidence about representations made to them by the children, as the children are attuned to the parental conflict and are probably inclined to privately make statements to the parties to demonstrate their loyalty. For example, the mother gave evidence of statements made to her by the eldest child that were critical of the father,[15] but the eldest child wrote a letter to the father replete with glowing compliments.[16] The mother knows the eldest child is “sensitive” to the “scratchiness” of both parties and saw him “burst into tears” under the pressure of not being able to please them both, because she informed the father of it in an email,[17] so it behoves the parties to evaluate the children’s representations carefully before accepting them as being literally true and correct in all respects.

   [15] Mother’s affidavit, para 187

   [16] Father’s affidavit, para 40, Annex B

   [17] Mother’s affidavit, para 158

1. It can be usefully acknowledged at this point that both parties are competent parents. Regrettably, they each gave the impression of scrambling to identify and vindicate criticisms of the other in the hope of establishing forensic supremacy and ultimate success in the litigation, which hardly bodes well for their future parental collaboration. Perhaps the most telling aspect of the evidence that differentiated their parenting capacities was the father’s comparative lack of insight. The mother made that complaint about him to the Family Consultant back in August 2014,[18] so it was not recently invented, and the evidence validated her concern in some respects. The following portions of the evidence exemplify the fact.

   [18] Memo 19/8/14, para 16

2. The father told the Family Consultant in October 2016 that the current parenting arrangement “does not work”, notwithstanding that the interim orders made in May 2014 have been implemented uneventfully for nearly three years. He was either unwilling or unable to elaborate in what manner the orders were failing.[19] In cross-examination his evidence was diametrically opposed. He admitted the orders had been working well.

   [19] Family Report, para 17

3. The father had to concede his proposal for an “equal time” regime entailed more than double the amount of time the children presently spend with him, which he knew was contrary to the views expressed by the children to the Family Consultant. In light of those facts, he was asked whether he foresaw any difficulties in forcing his proposal on the children, who are now of sufficient age and maturity to rebel. If he did perceive difficulties, he did not admit it. He asserted the arrangement would be in their best interests but, under courteous pressure, admitted he wanted more time with the children. He said the current arrangement “doesn’t work for me”. Indeed, it may not, but it obviously works for the children. The father’s evidence exposed either his inability to distinguish his and the children’s interests or, if he can distinguish, prioritisation of his own desire ahead of the children’s.

4. The father’s anguish upon the children’s return to the mother is readily apparent to the children. They know he is “sad” because he sometimes “cries”, which makes at least the youngest child “sad”.[20] The father said he once cried in the children’s presence over the death of a friend, but that was not the context in which the youngest child reported the father’s distress to the Family Consultant. In cross-examination, the father admitted he “gets emotional” when he takes the children “home”, which concession was instructive on two levels. First, it was corroboration of his distress when the children leave him, which is likely to make them feel awkward, and secondly, it was evidence of his recognition the mother’s household is the children’s primary home. As the Family Consultant correctly observed, it is not unusual for a parent to experience a sense of loss when children are with the other parent, but that is no reason in itself to equalise the time the children spend with each parent.[21]

   [20] Family Report, para 43

   [21] Family Report, para 54

5. The ability of the father to financially provide for the children deserves some attention. The parties live comfortably in valuable homes in Sydney’s eastern suburbs, where the children attend private school. In almost all respects, the mother financially supports the children and she still lends financial support to the father. The father lives in an apartment owned by the mother, for which occupation he pays no rent, and the mother pays the utilities for him.[22] The father said in cross-examination his net income from employment is about $1,000 per week, but only $464 after deduction of expenses. He pays no child support for the children, but does pay about one-third of their school fees from a superannuation interest to which he apparently has access. He conceded he is only able to survive because of the financial support given him by his adult children, which he expects will continue. It is difficult to see how the father could take on a much greater share of the children’s care, given the expense that would entail, without enlargement of the generous support he already enjoys from the mother and his adult children.

   [22] Orders 15-19 made on 30 May 2014

6. The father’s work commitments also present an impediment to significant expansion of the time spent by the children with him. Although he deposed to “flexible working hours”,[23] he conceded he had occasionally taken the children to his work premises. He agreed he did not do so because the children liked it or because he thought they would benefit from it, which, by process of elimination, means he had no alternative. From time to time his work commitments clashed with his child-care commitments. Nor has he used all of the school holiday time with the children available to him under the interim orders. On one occasion he took a European holiday, but the other occasions must be explained by his clashing work commitments, because it is unlikely he relinquished any time with the children due to lack of interest.

   [23] Father’s affidavit, para 7

7. The father deposed he “always attended each of the children’s school functions”,[24] but that was not true. He often did not, as he was impelled to admit in cross-examination. He could not name a single class teacher of either child. The father told the Family Consultant, and gave similar evidence, that he could only be assured of remaining connected to the children’s lives, particularly through their academic and sporting pursuits, if they spend more time with him,[25] but that was not correct either. The interim orders made in May 2014 enable his liberal communication with the children about their activities and do not impose any embargo on his attendance at their sport and extra-curricular activities. In fact, the interim orders were crafted around his participation in such activities.[26]

   [24] Father’s affidavit, para 23

   [25] Family Report, para 15; Father’s affidavit, para 30

   [26] Orders 1.3 and 10 made on 30 May 2014

8. The father conceded to both the Family Consultant and in cross-examination that he was not as competent as the mother to assist the children with their homework and studies,[27] as the mother deposed,[28] so he is not as well equipped as her to meet their intellectual needs.

   [27] Family Report, para 18

   [28] Mother’s affidavit, para 213

9. The parties both live in Sydney’s eastern suburbs. Their homes are only a couple of kilometres apart and the children’s school is located close by.[29] Even though the mother may now want or need the father to vacate the apartment he occupies, it is likely he will remain living in the eastern suburbs, either because the mother purchases another home for him or because he finds alternate rental accommodation. It is plainly reasonably practicable for both parties to remain substantially involved in the children’s lives. Neither contended otherwise.

   [29] Family Report, para 5; Father’s affidavit, paras 65-67

10. They were the evidentiary issues addressed by the parties under s 60CC(3) of the Act. It is unnecessary to slavishly advert to each and every immaterial factor prescribed under s 60CC(3). Only the contentious factual and legal issues germane to the outcome of the litigation need be addressed (see SCVG & KLD (2014) FLC 93-582).

Conclusions and orders

1. The parties and Independent Children’s Lawyer all proposed, consistently with the Family Consultant’s recommendation, that the parties be allocated equal shared parental responsibility for the children. It was not contended the presumption of equal shared parental responsibility was either rendered inapplicable (s 61DA(2)) or rebutted (s 61DA(4)), so such order is made.

2. As a consequence, the Court is obliged to consider both the advisability and practicability of the children living for equal time with the parties, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

3. The father proposed an “equal time” regime but, while it might be reasonably practicable to implement such a regime, due to the close proximity of the parties’ households and the children’s school, such a regime would not be in the children’s best interests. That adverse conclusion in respect of s 65DAA(1)(a) is enough to renounce an “equal time” regime (see Beckham & Desprez [2015] FamCAFC 247 at [21]-[25]).

4. An “equal time” regime would not be in the children’s best interests for several reasons. Significantly, the children were both strongly against it and, despite the father’s professed confidence that such a change could be seamlessly imposed, it is doubtful. The children would both likely resent it and, even if they did not steadfastly refuse to comply, their resentment of the father for forcing the arrangement upon them knowing it was contrary to their strongly expressed views would likely fester and probably impair the valuable relationships they currently enjoy with him. Their perception of the father’s inflexibility and authoritarianism would only likely be enhanced.[30]

   [30] Family Report, paras 39, 41, 42

5. The Family Consultant’s opinion that an “equal time” arrangement was unwise was not impugned,[31] and I accept it as correct. The parties’ parenting styles appear to be quite different and their parental cooperation has been under strain, which is not ideal for the children’s harmonious transitions between households. The children plainly regard the father’s home as a place they visit, not live. Although the father disavowed harbouring any doubt about “equal time” being the optimum arrangement, the Family Consultant perceived some uncertainty on his part.[32] If he did entertain such uncertainty, he was wise to do so.

   [31] Family Report, paras 50, 58, 59

   [32] Family Report, para 10

6. Having dismissed from consideration an “equal time” regime, it is then obligatory to consider the alternative of the children living primarily with one party and spending substantial and significant time with the other. There was no contest that the children should remain living with the mother, who was and is their primary carer. The contest was only ever whether the children should live with the father for an equal amount of time. Given the finding they should not, it follows they should remain in the primary care of the mother and the question devolved to how much time they should spend with the father.

7. Even the mother considered the children should spend substantial and significant time with the father, though the orders she proposed in respect of the youngest child only barely meet the definition of “substantial and significant time” (s 65DAA(3)) and, although she proposed no orders at all in respect of the eldest child, she still expected he would voluntarily spend substantial amounts of time with the father.

8. Since the parties and Independent Children’s Lawyer agreed that at least the youngest child should spend no less time with the father than already occurs (which amounts to one afternoon/evening each week and three overnight visits each fortnight on weekends), the dispute was narrowed to whether the time should be expanded to four, five, or six nights per fortnight. In truth, very little evidence rationally bore upon that determination.

9. Some minor expansion of the time spent with the father was warranted. Most importantly, the mother reported to the Family Consultant that at least the eldest child “often” spends extra time with the father. She said she was supportive of both children spending extra time with the father “at any time he wishes” and that he would continue to have “open access” to them.[33] Although the mother’s comments were conditional upon the extra time not clashing with planned activities, the father is probably just as able to ensure the children attend any such activities. The mother told the Family Consultant she expected the children to spend about half of their school vacations with the father,[34] which she formally proposed at trial.[35] That would entail the children visiting the father for weeks at a time, so she could hardly argue for significant containment of the children’s time with him during school terms. If he is capable of caring for them for weeks at a time in holidays, modest expansion of the time they spend with him during the weeks of school term is unlikely to exhaust his parenting capacity.

   [33] Family Report, paras 7, 22, 26

   [34] Family Report, para 11

   [35] Exhibit M1, Orders 3.4, 3.5, 3.7.3, 3.8.1

10. The mother tended to resile from such concessions at trial. She refused to agree to expansion of weekend visits, by having them end on Monday mornings instead of Sunday nights. She wondered whether the children’s relationships with the father were now as sound as she formerly believed. She asserted she worried about the children if they stayed with the father for more than a few days at a time, even though she did not amend her proposal about school holiday visits. She professed her persistent encouragement of the children to visit the father, but also asserted it was up to them to decide whether or not they did. She said in cross-examination words to the effect:

    [The eldest child] now wants something different [from the current arrangement] and he can make his own choices.

    Whatever the children want is what I want.

    I don’t have a problem with it if the children want it.

11. In the face of such evidence the mother was asked whether she exercised any parental control at all over the children. She asserted she did, but a responsible parent does not subordinate his or her own views about a child’s best interests to the child’s views. That would invert the parenting dynamic. Children’s views, particularly those of the eldest child’s age, should have their views polled, but final decisions are ultimately the domain of parents. The mother should lead the children, not follow them.

12. The mother’s apparent recent deference to the children’s expressed views worried the father, particularly because of its implications for his continuing relationship with the eldest child. The mother conceded the eldest child was recently informed by Ms E that the father had commenced property settlement proceedings which might entail sale of the family home in which the children live with the mother, as the father alleged.[36] When asked directly by the eldest child whether it was true, the mother confirmed it was. Whether that was wise and whether that constituted a breach of an interim injunction[37] is beside the point. It happened and, inferentially, it hardened the eldest child’s views against the father. It was common ground the eldest child had not seen the father for two weeks prior to trial, in circumstances where he ordinarily would have done so numerous times. Upon being informed of those developments in cross-examination, the Family Consultant said there was “absolutely” a “danger” the eldest child was now ill-disposed towards the father. She agreed children tend to align with the parent with whom they live in the event of conflict and she “[couldn’t] possibly predict” what might happen to the relationship between the eldest child and father if entirely unregulated.

    [36] Father’s affidavit, para 48

    [37] Order 8 made on 30 May 2014

13. The mother’s evidence about why the eldest child had not seen the father for a fortnight was less than satisfactory. She said it was because the eldest child had conflicting commitments on each of those designated occasions, which included hosting a school friend, doing homework, and attending rowing practice, but they are his regular commitments and have not commonly precluded his visits with the father in the past. The mother also contended she encouraged the eldest child to visit the father, notwithstanding such commitments, but he resisted. If she encouraged him to visit the father anyway, the commitments must not have been any real excuse for not visiting him at all, and furthermore, if he resisted the mother’s entreaties then she must have lost some control over him. If, as the mother proposed, no orders are made to regulate the future interaction between the eldest child and father, there is a real risk he will refuse to visit the father, regardless of the mother’s encouragement. Of course, the inference is also available the mother did not encourage the eldest child to visit the father as strongly as she suggested. The parties have recently suffered a heavy litigious defeat in the NSW Supreme Court, for which the mother admitted she held the father responsible. It is easy to imagine how she cannot muster much enthusiasm to encourage the children to see the father if she perceives he has caused her economic ruin.

14. The father was gravely concerned that if the orders only cover the youngest child and omit the eldest child, as the mother and Independent Children’s Lawyer both proposed, two consequences may follow: first, the eldest child’s relationship with him will erode, and second, the youngest child will become reluctant to spend time with him if he is obliged to visit the father alone and there is no good reason for the eldest child not to accompany him. The father’s apprehension was not unreasonable and the mother was impelled to admit in cross-examination she understood it. The Family Consultant also said any rift between the eldest child and father would “impact” on the youngest child.

15. The basis upon which the mother and Independent Children’s Lawyer sought that no orders be made in respect of the eldest child was not clearly articulated. The eldest child did not tell the Family Consultant he did not wish to be bound by any orders at all. He only said he was against an “equal time” regime. He was unable to spend time regularly with the father during some school terms in 2016, while he was billeted at some distant school campus, and it was only Wednesday evening visits from which he said he wanted relief.[38] He said the parenting arrangement that “works best” for the youngest child also “works best” for him.[39] He was adamant he wanted no change to the current arrangement,[40] but the proposals of the mother and Independent Children’s Lawyer would certainly be a change to the current arrangement for him. Ms E also reported to the Family Consultant that the eldest child told her he was “happy with the current arrangements and [does] not want any changes”.[41] Even the mother told the father in an email, albeit a year ago, the children wanted no changes to the current arrangements.[42]

    [38] Family Report, para 37

    [39] Family Report, para 38

    [40] Family Report, para 40

    [41] Family Report, para 31

    [42] Mother’s affidavit, para 157

16. Any evidentiary support the mother and Independent Children’s Lawyer sought for their proposals in respect of the eldest child from the Family Consultant’s evidence was illusory. She simply said it “might” be appropriate to omit the eldest child from the orders and that “consideration” should be given to allowing him to make his own decisions.[43] The expression of an opinion that some eventuality might be a good idea falls far short of proof that it would be a good idea. Even if the Family Consultant’s view could be fairly construed as a firm opinion, it was offered on a different factual platform from that which now exists. The mother is now seemingly not so supportive of the children seeing so much of the father and the eldest child is now somewhat resistant to visits with him. The Family Consultant was unaware of that. In fact, she witnessed the parties’ conviviality with one another in the children’s presence.[44]

    [43] Family Report, paras 51, 59

    [44] Family Report, para 44

17. Finally, the absence of any orders at all in respect of the eldest child, save for the parties’ allocation of equal shared parental responsibility for him, would likely result in deadlock over the exercise of parental power. Vested with equal shared parental responsibility, the parties would have an equal say over all “major long-term issues” in the eldest child’s life, which would include such fundamental decisions as with whom he primarily lives and how much time he spends with each of them. In respect of such decisions, the parties would be obliged to consult one another civilly, genuinely attempt to compromise, and eventually reach a joint decision (s 65DAC). In the event of an impasse between them, the only solution would be more litigation to break the deadlock. Such an eventuality is easy to envisage, given the current irritation, which would not be in the interests of the children or the parties.

1. It remains plausible that, if governed by orders, the eldest child may feel liberated to visit and enjoy his time with the father in the knowledge he is merely being compliant. Even if not intended by the mother, he may feel pressure, in the absence of such orders, to demonstrate allegiance to the mother by choosing to restrict his time with the father.

2. For those reasons, the orders will cover both children. The orders will also largely perpetuate the existing parenting regime, but make two relatively modest alterations. Visits on Wednesday afternoons/evenings will be changed to Tuesdays and alternate weekend visits will end on Monday mornings instead of Sunday evenings. Accordingly, in school terms, the children will spend four nights per fortnight and one extra afternoon/evening each week with the father.

3. The first change is warranted by the mother’s concession in cross-examination that visits on Tuesday nights would be more convenient than on Wednesday nights, because the eldest child is committed to rowing practice on Wednesday afternoons. That might explain why the eldest child told the Family Consultant he had “other commitments on Wednesday[s]”.[45]

   [45] Family Report, para 37

4. The second change is warranted by the mother’s concessions that the children have stayed overnight with the father on some Sunday nights in the past, that she would be content for it to happen (though she also said the opposite at one point during cross-examination), and that the father could deliver the children to school.[46] She said in cross-examination the children did not want to be delivered to school by the father on Monday mornings, but she previously allowed it to happen nevertheless, so the children’s opposition to the idea must not have been so compelling. The mother conceded in cross-examination there was no practical impediment to the father collecting the children from school on Friday afternoons and returning them to school on Monday mornings on the alternate weekends they visit him. The father deposed to his ability to do so and was not contradicted.[47]

   [46] Mother’s affidavit, para 69

   [47] Father’s affidavit, para 7

5. Other than in those two respects, the father advanced no logical or persuasive reason for why the existing regime, which has worked well for the children and the parties for about three years, should be changed.

6. Orders 8-13 inclusive are made, subject to some minor grammatical changes, with the consent of the parties and Independent Children’s Lawyer. They jointly tendered a minute of the orders upon which they agreed.[48]

   [48] Exhibit A

7. The parties ultimately agreed that the children’s names should be removed from the airport watch list and that they may be taken overseas by each of them for holidays. They acknowledged Australia was the children’s home and would remain so. The mother is aware of the father’s opposition to her taking the children to Africa. She agreed not to do so, unless he changes his mind and consents. The orders reflect the parties’ final positions. Some notations are made to the orders to help guard against the children’s abduction or retention overseas. No orders are made about the children’s passports. The parties wanted equal shared parental responsibility for the children, so they can decide who holds the passports from time to time. The issue was not the subject of any evidence or submission.

8. Some of the orders proposed individually by the parties and Independent Children’s Lawyer are not made.

9. The order under which the children spend time with the father on Friday nights on intervening weekends is not made conditional upon the existence of school sport commitments on Saturday or the estimated travel times to sports venues, as was proposed.[49] Such conditions lack prescription and are apt to lead to dispute. If the parties can make consensual arrangements, it proves such conditional orders are unnecessary. If they cannot, it proves why the orders need to be prescriptive and not susceptible to argument about whether the sport is on and how long it takes to get there.

   [49] Exhibits M1 (Order 3.3), ICL1 (Order 3.3)

10. The parties and Independent Children’s Lawyer all proposed elaborate orders about expenditure of time by one or both children with the father during the Summer school holidays,[50] but no such order is made. If they could agree on the terms of such an order it would have been included within the minute of agreed orders,[51] but it was not. The issue was not addressed at all, either in the evidence or in submissions, so it cannot have been so important. The Summer holidays are treated in the orders like all other school holiday periods. Provision is made for the Christmas Eve/Christmas Day period in accordance with the parties’ joint wishes.[52]

    [50] Exhibits F1 (Orders 2.3, 2.4), M1 (Orders 3.5, 3.6, 3.7.3, 3.8), ICL1 (Order 3.5)

    [51] Exhibit A

    [52] Exhibits F1 (Orders 4.5, 5.4), M1 (Orders 3.7.1, 3.7.2, 3.9), ICL1 (Orders 4.5, 5.4)

11. The orders do not provide for the children to spend time with both parties on all birthdays, contrary to the proposals of the parties and Independent Children’s Lawyer.[53] The children will see both parties frequently enough without the need for further fragmentation of their weekly routine. Their schedules are busy enough with the multitude of sporting, academic, and musical activities to which they are already committed. Again, the proposed orders on that issue were not among those in the minute of agreed orders[54] and the issue was not the subject of any discrete evidence or submission.

    [53] Exhibits F1 (Orders 4.2-4.4, 5.2-5.3, 5.5), M1 (Orders 3.11, 3.12), ICL1 (Orders 4.2-4.4, 5.2-5.3, 5.5)

    [54] Exhibit A

12. The mother and Independent Children’s Lawyer jointly proposed an order compelling the parties to consult a counselling service “at their discretion” in relation to “matters of concern” to assist in the resolution of such concern if either party considers the orders are “not working as effectively as they should”.[55] No such order is made because it is pointless. If the orders fail the family’s needs, the parties will presumably agree upon alternative arrangements or start fresh litigation. There is no utility in an order that directs the parties to do what they want whenever they want, because the order is then meaningless and unenforceable.

    [55] Exhibits M1 (Order 11), ICL1 (Order 12)

13. The Independent Children’s Lawyer tendered an assessment of her costs[56] and sought costs orders against the parties.[57] The father consented to the order sought against him, provided he was given four months within which to pay. The mother did not consent to the order sought against her, but did not wish to be heard against it. The Independent Children’s Lawyer was willing to allow both parties four months within which to pay their share of the costs. Orders to that effect are made.

    [56] Exhibit ICL2

    [57] Exhibit ICL1 (Orders 15, 16)

14. The parties both sought costs orders against each other,[58] but both acknowledged these reasons should be published and considered before the costs applications were pressed. Their costs are reserved for 28 days.

    [58] Exhibits F1 (Order 13), M1 (Order 18)

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 27 March 2017

Associate: 

Date:  27 March 2017