Sproat & Brimm - [2013] FCCA 1823

FEDERAL CIRCUIT COURT OF AUSTRALIA

SPROAT & BRIMM

[2013] FCCA 1823

Catchwords:
FAMILY LAW – Children – parenting orders – best interests of the children – parental responsibility – equal shared parental responsibility – sole parental responsibility – whether equal shared parental responsibility rebutted by evidence that it would not be in the children’s best interests – whether a graduated approach towards children spending equal time with each parent is in children’s best interest – Court not bound to follow recommendations in Court Expert report.

Legislation:

Family Law Act 1975 (Cth), ss. 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Hall & Hall (1979) 5 Fam LR 609; FLC 90-713
Sproat & Brimm [2012] FMCAfam 105

Applicant:

MR SPROAT

Respondent:

MS BRIMM

File Number:

SYC 7819 of 2011

Judgment of:

Judge Scarlett

Hearing dates:

8 – 10 & 31 October 2013

Date of Last Submission:

31 October 2013

Delivered at:

Sydney

Delivered on:

12 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr Millar

Solicitors for the Applicant:

Robyn Sexton & Associates

Counsel for the Respondents:

Ms McMahon

Solicitors for the Respondents:

Blake Lawyers

Independent Children's Lawyer:

Ms Smith

Solicitors for the Independent Children's Lawyer:

Legal Aid New South Wales

ORDERS

All earlier parenting Orders are discharged.
The Applicant Father is to have sole parental responsibility for all decisions of a major long-term nature affecting the care, welfare and development of the children of the relationship [X] born [in] 2003, [Y] born [in] 2004 and [Z] born [in] 2008 including which school the children are to attend PROVIDED THAT the Father consults the mother prior to making any decisions about which High School the children are to attend.
The children [X], [Y] and [Z] are to live with the Father.
The children [X], [Y] and [Z] are to spend time with the Respondent Mother as follows:
(a)During the school term:
(i)each alternate weekend from immediately after school on Friday until the commencement of school on Monday unless the Monday is a public holiday in which case the time will conclude at the commencement of school on the Tuesday; and
(ii)each Wednesday from immediately after school until 7:00pm and for the purposes of this time the Mother is to collect the children from school at the commencement of the time and will return them to the Father’s residence at the conclusion of the time;
(b)from 10:00am on Mother’s Day until the commencement of school on the Monday;
(c)on each of the children’s birthdays and the Mother’s birthday from immediately after school if the day falls on a school day or 3:00pm if the day does not fall on a school day until 7:00pm;
(d)for half of each school holiday period at the end of Terms 1, 2 and 3 as agreed but failing agreement:
(i)for the first half in 2014 and each even numbered year thereafter; and
(ii)for the second half in 2015 and each odd numbered year thereafter;
(e)if Easter does not coincide with a school holiday period, then the children [X], [Y] and [Z] are to spend the following time with the Mother:
(i)in 2014 and each even numbered year thereafter from 9:00am on Good Friday to 7:00pm on Easter Saturday; and
(ii)in 2015 and each odd numbered year thereafter from 7:00pm on Easter Saturday to 6:00pm on Easter Monday;
(f)during the Christmas/January school holidays as follows:
(i)in 2013 and each odd numbered year thereafter, from immediately after school on the last day of the school term to midday on Christmas Day and from 6:00pm on 4 January to 6:00pm on 18 January; and
(ii)in 2014 and each even numbered year thereafter from midday on Christmas Day to 6:00pm on 17 January; and
(g)at such other times as the parties shall agree.
The Mother’s time with the children is to be suspended as follows:
(a)from 10:00am on Father’s Day, if it occurs on a day that the children would otherwise spend with the Mother according to these Orders and for this purpose the Father will collect the children from the Mother’s residence; and
(b)on each of the children’s birthdays and the Father’s birthday from immediately after school if the day falls on a school day or 3:00pm if the day does not fall on a school day until 7:00pm if any of the birthdays fall on a day that the children would otherwise spend with the Mother according to these Orders.
For the purpose of implementing these Orders:
(a)Except as otherwise agreed or when changeover occurs through school, the mother is to collect the children from the Father’s residence at the commencement of their time with her and the Father is to collect the children from the Mother’s residence at the conclusion of their time with her;
(b)School holidays are deemed to commence immediately after school on the day that the children last attend school at the end of the school term (and if there is a difference between the children, on the day the last of the children attends school) and will conclude immediately before school on the day the children resume attendance at school at the commencement of the school term (and if there is a difference between the children, on the day the first of the children resumes attendance at school at the commencement of the school term); and
(c)The alternate weekend arrangement during school terms stated in Order (4)(a) above will begin on the:
(i)First weekend of the school term if the children spend the first half of the preceding holiday period with the Mother; and
(ii)The second weekend of the school term if the children spend the second half of the preceding school holiday period with the Mother.
Each parent is to cause the children to attend all scheduled extra-curricular activities and social activities during periods that the children are with that parent.
Each parent must do all such things as may be necessary to ensure that the children may communicate with the other parent or member of that parent’s household by telephone, SMS text message, “Skype’, “Facetime’ or like form of communication at all reasonable times:
(a)on at least one occasion when the children are living with the other parent during each holiday period; and
(b)as the children request when they are spending time with the other parent.
Each party must notify the other party promptly of any illness or injury suffered by the children or any of them requiring hospitalisation.
Each party must promptly notify the other of any change to his or her residential address, contact telephone number or email address.
Each party must keep the other informed of all medical, dental and other health-related treatments being undertaken by the children and the identity and contact details of the treating health professional.
Each parent is restrained from:
(a)criticising or denigrating the other parent or any member of that parent’s household within the presence or hearing of the children or from causing or permitting any other person to do so;
(b)conveying or attempting to convey messages to the other parent or to coordinate the implementation of these orders via any of the children;
(c)enrolling or re-enrolling the children in an extra-curricular activity which would ordinarily interfere with the time the children are to spend with the other parent, other than with that parent’s prior consent. For the avoidance of doubt, nothing in this restraint is intended to prohibit a parent from enrolling the children in an extra-curricular activity that ordinarily occurs on days and times when the children are spending time with or living with that parent according to these Orders; and
(d)administering to himself or herself any illicit drug at any time when the children or any of them are in their care or for twelve (12) hours beforehand.
Each parent must do all acts and things, execute all documents and provide all authorities reasonably necessary required to ensure that:
(a)each party is at liberty to communicate directly with the children’s school teachers and other school authorities as to the children’s progress at school, whether of an academic or psychosocial nature and to enable the children’s school records to:
(i)show each parent as a person to be contacted in case of emergency; and
(ii)ensure that each parent’s name is on the mailing list for copies of school reports, newsletters, circulars and other documents ordinarily provided to parents of children attending that school;
(b)each parent is at liberty to communicate with any treating health professional as to any health-related treatment being undertaken by the children without necessarily first referring to the other parent; and
(c)each parent is at liberty to communicate directly with the coordinators or directors of any extra-curricular activity in which children participate as to the children’s participation and progress in the activity and any issues being experienced by the children during the activity and to enable the children’s enrolment records to:
(i)show each parent as a person to be contacted in case of emergency; and
(ii)ensure that each parent’s name is on the mailing list for copies of newsletters, circulars and other documents ordinarily provided to parents of children enrolled in the activity.
The Father is to retain the children’s passports other than at times when the children are travelling overseas with the Mother and for the purposes of ensuring that the children have current passports each parent must, within seven (7) days of a request being made of them by the other parent, sign all documents and do all acts and things to enable a completed passport application to be submitted to the issuing authority and, if necessary, provide the other parent with the children’s birth certificates and associated documents required to enable the passport application to be processed.
Each parent may cause the children or any of them to travel outside New South Wales but within the Commonwealth of Australia during school holiday periods and at such other times as agreed provided that the travelling parent provides the other parent with not less than seven (7) days’ written notice in advance specifying the time of departure and return, reasonable particulars of transport (including flight details), accommodation details and contact details whilst travelling.
Each parent may cause the children or any of them to travel overseas during school holiday periods and at such other times as agreed provided that the travelling parent gives the other parent at least four (4) weeks’ written notice in advance specifying the time of departure and return, reasonable particulars of transport (including flight details), accommodation details and contact details whilst travelling.
In the event that either party fails to execute any document necessary to give effect to these Orders, the Registrar of the Federal Circuit Court of Australia at Sydney is appointed under section 106A of the Family Law Act 1975 to execute the document on behalf of the party who refuses or neglects or otherwise fails to execute it and do all acts and do all acts and things necessary to give force and effect to these Orders AND FURTHER the party refusing or neglecting or otherwise failing to execute the document or documents is to pay the costs of the other party in relation to obtaining the signature of the Registrar.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7819 of 2011

MR SPROAT

Applicant

And

MS BRIMM

Respondent

REASONS FOR JUDGMENT

Application

This is an Application by the Father for final parenting orders covering the parties’ three children, [X], [Y] and [Z]. The children are currently living with the Father and spending time with the Mother in accordance with interim parenting Orders made on 18^th January 2012 and varied by consent on 12^th March 2012.
[X] is ten years old. He was born [in] 2003.
[Y] is almost nine years old. He was born [in] 2004.
[Z] is five years and seven months old. She was born [in] 2008.
The Mother seeks parenting Orders as set out in her Amended Response, filed on 8^th October 2013, the first day of the hearing.
There is an Independent Children’s Lawyer, who has handed up a Minute of Proposed Orders. These Proposed Orders vary slightly from the Orders proposed by the Father and vary significantly from the Orders proposed by the Mother.

Background

The Father was born [in] 1971 and the Mother was born [in] 1972.
The parties commenced living together early in 2002. They separated on a final basis in June 2009 and they commenced living at separate addresses in August 2009. The children remained living with the Mother.
Early in 2010 the Father commenced a relationship with one Ms M. They commenced living together in August 2011.
The proceedings were commenced by the Father on 22^nd December 2011, when the Father filed an Application for orders that the Mother be restrained from unilaterally relocating the children’s residence from Sydney to [O]. He sought orders that:
a)the children should return to live in Sydney;
b)[X] and [Y] should return to their school and [Z] should go back to the preschool she had been attending; and
c)The children should live with him, at least until the final hearing.
The Mother sought an order permitting her to relocate the children’s residence to [O].
After an interim hearing on 18^th January 2012, I made Orders providing that:
a)The parties were to have equal shared parental responsibility for the children;
b)The Mother was restrained from removing the residence of the children to [O];
c)The parties were to do all things necessary to ensure that [X] and [Y] commenced at [school omitted] at [M] at the beginning of Term 1 and [Z] should continue to attend her previous preschool;
d)The Mother was required to return the children to live at an address within the Sydney Metropolitan Area by 28^th January 2012;
e)If the Mother were to continue to reside in [O] or otherwise outside the Sydney Metropolitan Area after 28^th January 2012 the children would live with the Father and spend time with the Mother on weekends during the school term and in the school holidays;
f)In the alternative, if the Mother returned to live in the Sydney Metropolitan Area the children would continue to live with her and spend time with the Father;
g)The interests of the children were to be represented by an Independent Children’s Lawyer;
h)Dr B, a clinical psychologist, was appointed as Court Expert to prepare a report.[1]
[1] Sproat & Brimm [2012] FMCAfam 105
On 13^th March 2012, the parties and the Independent Children’s Lawyer entered into Interim Consent Orders making minor variations to some of the arrangements in the Orders of 18^th January.
The Mother made an application on 2^nd April 2012 to vary the Orders made by consent on 12^th March 2012. That application was dismissed. The proceedings were listed for final hearing on 5^th and 6^th September 2012.
The Report by Dr B was released to the parties on 5^th April 2012.
The hearing did not proceed on 5^th September, as it transpired that the Mother had not disclosed that she had been charged by the Police with a criminal offence. The proceedings were adjourned for hearing on 18^th to 20^th June 2013 and an updated report was sought from Dr B. The parties were to share the cost of the report equally.
On 19^th April 2013 the request for an updated report from Dr B was rescinded and instead he was asked to review the material for the purpose of giving evidence at the hearing. The Father was to pay

Dr B’s costs of reviewing the material and attending the hearing in the first instance.
The hearing did not proceed in June but did proceed in October 2013.

Evidence

The Father relied on the following affidavits:
a)his affidavit of 22^nd August 2012;
b)his affidavit of 16^th September 2013;
c)the affidavit of Ms M of 22^nd August 2012;
d)the affidavit of Ms M of 16^th September 2013; and
e)the affidavit of Ms C of 26^th September 2013.
Ms C was not required for cross-examination.
The Father and Ms M gave oral evidence and were cross-examined.
The Mother relied on her affidavits of:
a)17^th January 2012;
b)12^th March 2012;
c)24^th August 2012; and
d)27^th September 2013.
The Mother gave oral evidence and was cross-examined by counsel for the Father and by the Independent Children’s Lawyer.

Court Expert Report

Dr B, a clinical psychologist, prepared a report for the Court. He gave oral evidence and was cross-examined by counsel for both parties and by counsel for the Independent Children’s Lawyer.
Dr B completed his report on 5^th April 2012. The report was released to the parties the same day. He interviewed the parties and the children on 2^nd March 2012. It is, of course, a limitation on his report that it was not updated prior to the hearing, but the reasons for that have already been explained. Dr B did have the opportunity to read through updating materials and he gave oral evidence on 8^th and 10^th October.
For the purpose of his report, Dr B interviewed the Mother, the Father and Ms M. He also interviewed the two boys, [X] and [Y]. He did not interview [Z], because of her young age. [Z] had not yet reached the age of four at the time of the interviews.
Dr B recorded that the Mother readily acknowledged her past mistakes, especially in regard to episodes of dishonesty. She stated that she had seen a psychologist for anxiety attacks and had been diagnosed with depression by her general practitioner. She also claimed to be abstinent from alcohol or drugs and had not consumed alcohol since Christmas 2011.
The Mother told Dr B that she planned to obtain part-time employment because she could not work full-time and be able to take care of the children.
Dr B assessed the mother’s psychological profile, which included these findings:
24)Ms Brimm was also administered an inventory designed to assess current clinical symptoms and underlying deeper and pervasive personality characteristics based on the DSM-IV classification system.[2] Ms Brimm’s responses suggested the presence of an indifference to the welfare of others, with a tendency to charm and exploit others without assuming reciprocal responsibility. Acts of defiance may also be exhibited.
25)Ms Brimm’s response profile suggested she may at times engage in potentially deceptive behaviour, and accompanying evidence from [L][3] would lend apparent support for this. Possibly untroubled by her conscience and seeking to nourish her needs, she acknowledged a tendency to fabricate stories to induce others to support her excesses.[4]
[2] Footnote omitted
[3] The mother’s former employer
[4] Report page 8 paragraphs [24] and [25]
Dr B noted the father’s issues with the Mother:
Mr Sproat expressed concerns about Ms Brimm’s ability to make sound judgments and to provide the children with a structured environment. He reported that Ms Brimm had moved residence several times including [O] with the children without reference to him, stolen money from friends, been dismissed from her employment due to her personal use of her Corporate credit card, and been evicted from her [M] property. Mr Sproat stated that he did not want to exclude the mother from parenting of the children but was no longer able to trust the mother’s stability.[5]
[5] Report page 10 at [35]
Dr B described Ms M as expressing her total support for the Father and stating that she would not play a mother role to the children. She had told [Y] that she was not his stepmother but was there to be his friend.

As to Ms M’s psychological profile, Dr B stated:
Ms M’s self-concept appears to involve a generally stable and positive self-evaluation. She is normally a confident and optimistic person who approaches life with a clear sense of purpose and distinct convictions. Ms M’s interpersonal style seems characterised as warm, friendly and sympathetic, valuing harmonious relationships and deriving much of her satisfaction from those relationships.[6]
[6] Ibid at [50]
[X], the older boy, when asked about his wishes, stated that he wanted to spend the same amount of time with each parent:
[X] stated that when he stays with his father he communicates with his mother by phone or Skype, or sometimes his mother visits. He said that his father encourages him to talk with his mother, telling him ‘to Skype her iPad’. [X] stated that when he stays with his mother, he said that the mother was living in [omitted], they ring, Skype, or go to an Internet café to call his father.
56)When asked about Ms M, [X] stated that she took the children to all sorts of places such as a playground and a pool. He said that he likes Ms M and that Ms M makes food for him such as pancakes, pumpkin soup, and chocolate milk. [X] stated that Ms M tells off the children, ‘except when [Y] doesn’t listen’.[7]
[7] Report pages 13 and 14 at [56] and [57]
In his formal psychological assessment of [X], Dr B stated that:
In comparison to a large age and gender-matched population, [X]’s scores placed him in the Moderately Elevated range for depression, anxiety, and anger, reporting hopelessness, loneliness, somatic anxiety symptoms, feeling of exploding and disruptive behaviour such as arguing with adults and liking to bully others…
…Overall, [X]’s score placed him in the Much above Average range on his total anxiety scale.[8]
[8] Ibid page 14 at [57] and [58]
Dr B recommended that the parents considered enrolling [X] in the ‘Cool Kids’ program at [omitted] University.
[Y] told Dr B that he liked to see his mother and father more often and said that “he wished to see his mother and father ‘half time for each’.[9] He did not state a preference for one parent over the other.
[9] Ibid page 15 at [62]
In his formal psychological assessment of [Y], Dr B reported that:
65)[Y]’s profile placed him in the Mildly Elevated range for anxiety and disruptive behaviour, reporting concerns about physical and psychological integrity…
66)Overall on the anxiety measure, [Y]’ score placed him in the Slightly above Average range on his total anxiety scale…[10]
[10] Ibid page 15 at [65] and [66]
Dr B stated that all three of the children showed strong attachments to both parents. [Z], despite the fact that she was primarily raised by her mother, looked happy with both parents. However, Dr B was of the view that a significant disturbance to her current care arrangements[11] “would likely result in emotional distress and would need to be carefully implemented”.[12]
[11] The children were residing with their father during the week and spending time with their mother on alternate weekends at the time of the interviews
[12] Report page 19 at [78]
Dr B reported that the relationships between the children and Ms M appeared warm and the children, especially [Z], appeared comfortable in her presence.
Dr B recommended that:
The current order that the children are to live with the mother all week plus each alternate weekend in the event that the mother moves back to Sydney metropolitan area does not seem to be in the best interests of the children, considering the mother’s current stress and likely impact that another such abrupt change would have on the children’s relationship with their father. It appears that if at all possible, an arrangement involving equal shared parenting in terms of responsibility and time would be in the best interests of the children, presuming the issue of geographic distance and reasonable practicability of travel is resolved.[13]
[13] Ibid at [81]

Orders Sought

The orders sought by the Father are set out in his Case Outline. Essentially, he seeks orders that:
a)He should have sole parental responsibility for the three children;
b)The children should live with him;
c)The children should spend time with their mother during the school term:
i)Every alternate weekend from after school Friday to 6:00pm on Sunday (or Monday, if it is a public holiday);
ii)Each Monday from after school until 7:00pm;
d)For the first half of the Term 2 and Term 3 school holidays;
e)During the 2013/2014 Christmas school holidays and each alternate year thereafter:
i)From after school on 18 December until 12 noon Christmas Day; and
ii)From 6:00pm on 4 January until 6:00pm on 18 January;
f)In the 2014/2015 Christmas school holidays and each alternate year thereafter from 12 noon on Christmas Day until 6:00pm on 17 January;
g)During the Term 1 school holidays for the first half of the holiday period from the last day of school, provided that:
i)In 2014 and each alternate year thereafter, the children will spend from 9:00am on good Friday until 6:00 on Easter Monday with the father; and
ii)In 2015 and each alternate year thereafter, the children will spend from 9:00am on Good Friday until 6:00 on Easter Monday with the Mother;
h)On Mother’s Day from 10:00am to 6:00pm;
i)For 4 hour days on each of the children’s birthdays;
j)On the Mother’s birthday:
i)If it falls on a school day, from after school until 9:00am the following morning; and
ii)If on a weekend or holiday, from 10:00am to 6:00pm; and
iii)At other times by agreement.
k)If Father’s Day or the Father’s birthday should fall on a day when the children would otherwise be with their mother, they would spend time with him instead.
There are also other orders sought about such matters as keeping each other informed of various events, telephone communication, passports and interstate and overseas travel.
The final orders sought by the Mother are set out in her Amended Response filed on 8^th October, the first day of the final hearing.
The Mother’s proposed orders differ from those proposed by the Father in that she seeks an order that the parties should have equal shared parental responsibility for the children, although she concedes that the children should live with the Father.
The Mother seeks orders about her spending time with the children that involve more time than the Father proposes. They set out a regime of time that steadily increases over the coming year, school term by school term, until the commencement of the fourth school term in 2014.
The first stage is intended to last until the commencement of Term 4 this year. As the school term will have commenced by the time this decision is handed down this stage need not be considered further.
The Mother’s graduated proposal for spending time with the children during the school term is:
a)From the commencement of Term 4 in 2013, each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday;
b)From the commencement of Term 1 in 2014, each alternate weekend from the conclusion of school on Friday until the commencement of school on Tuesday;
c)From the commencement of Term 2 in 2014, each alternate weekend from the conclusion of school on Friday until the commencement of school on Wednesday;
d)From the commencement of Term 3 in 2014, each alternate weekend from the conclusion of school on Friday until the commencement of school on Thursday; and
e)From the commencement of Term 4 in 2014, each alternate weekend from the conclusion of school on Friday until the commencement of school the following Friday, which would then be an equal time arrangement.
The Mother proposes that this arrangement would continue through the school holidays, being a year round pattern.
I am dubious as to whether implementing a program where the children spend an extra day each week with their mother from the beginning of each school term would be in the children’s best interests, as it would appear to be disruptive and confusing to the children with arrangements changing every term.
The Independent Children’s Lawyer submitted an Amended Minute of Order on the last hearing day, with a proposed arrangement which was a lot more like the arrangement proposed by the Father than that proposed by the Mother.
The Independent Children’s Lawyer proposes that the parents should have equal shared parental responsibility for the children, but sets out a specific arrangement in regard to making a decision about what schools the children will attend in the future. The proposed arrangement involves the Father nominating three schools, with the Mother selecting one of them within 28 days of receiving the Father’s list. If the Mother does not nominate a school from that list within 28 days, the Father would then be at liberty to choose a school.
The Independent Children’s Lawyer is of the view that the children should live with their father and spend time with their mother during the school term in this way:
a)Each alternate weekend from after school on Friday until the commencement of school on Monday, unless the Monday is a public holiday, when the time would conclude at 6:00pm on the Tuesday; and
b)From after school until 7:00pm each Wednesday.
Otherwise, the parties would share the school holidays and arrangements would be made for special days such as birthdays, Mother’s Day and Father’s Day.

The law to be applied in applications for parenting orders

Part VII of the Family Law Act 1975 (Cth) deals with matters relating to children. The objects of Part VII are set out in s.60B(1) of the Act, providing for children’s best interests to be met by:
a)Ensuring that children have the benefit of both parents having a meaningful involvement in their lives;
b)Protecting children from physical or psychological harm;
c)Ensuring that they receive adequate and proper parenting; and
d)Ensuring that parents fulfil their duties and meet their responsibilities.
The principles underlying those objects are set out in s.60B(2) and include:
a)children’s right to know and be cared for by both of their parents;
b)children’s 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; and
c)parents jointly share duties and responsibilities concerning their children’s care, welfare and development.
All of the principles in s.60B(2) are subject to their not being contrary to the children’s best interests.
Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, by having regard to the primary and additional considerations set out in subsections (2) and (3) respectively.
The Court is required by s.61DA of the Act to apply the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his or her parents to have equal shared parental responsibility.
Where the Court does make an order providing for children’s parents to have equal shared parental responsibility for them, the Court is then required by s.65DAA(1) to consider whether it is both in the children’s best interests and reasonably practicable for the children to spend equal time with each parent. If the Court does not make an order to that effect, it must then consider (under s.65DAA(2)) whether it is both in the children’s best interests and reasonably practicable for the children to spend substantial and significant time with each parent.
The term “substantial and significant time” is defined in s.65DAA(3) of the Act. Of course, it may be the case that the Court decides that, whilst it should make an order providing for a child’s parents to have equal shared parental responsibility, something other than substantial and significant time with a parent is the proper order to be made.
All of these matters have been considered, insofar as they are relevant.

Conclusions

In this case, there is no issue between the parties that in the immediate future, at least, the children should continue to live with their father and spend time with their mother, although the Mother proposes a graduated program over a period of a year leading up to the children spending equal time with each parent.

Parental Responsibility

The Mother seeks an order that the parties should have equal shared parental responsibility for the children. The Independent Children’s Lawyer recommends that they have equal shared parental responsibility, albeit with the proviso that there should be a process where the parties should negotiate about what schools the children are to attend in the future, with the Father having the final say if the Mother does not choose one out of a list of three schools.
The Father submits that he should have sole parental responsibility for the children, as he does not have any trust or confidence in the Mother’s truthfulness or stability. Indeed, he submits that an order that the parties should have equal shared parental responsibility would be more likely to see this matter back in court, which is undesirable. The Court is required to consider 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 children (see s.60CC(3)(m)).
When making a parenting order, the Court is required by s.61DA(1) to apply the presumption that it is in the children’s best interests, unless it does not apply because of abuse or family violence or the presumption is rebutted by evidence that it would not be in the children’s best interests to apply the presumption (s.61DA(4)).
This is not a case where it is submitted that the presumption does not apply because of abuse or family violence.
There is an evidentiary onus on the Father to satisfy the Court that equal shared parental responsibility would not be in the children’s best interests and that, therefore, he should have sole parental responsibility for the children.
The Father cannot trust the Mother’s word. There is evidence that she has been dishonest and untruthful, not just in the admittedly difficult period of the Mother’s life from 2009 to 2011, but more recently.
The circumstances of the Mother’s dismissal from her employment at [L] are relevant, as the Mother had lost her job because of irregularities in her use of a corporate credit card.
There is unchallenged evidence from Ms C, in her affidavit sworn on 26^th September 2013, about the Mother’s dishonesty in stealing a cheque from her cheque book, writing the cheque and presenting it to a real estate agent to pay her rent.[14]
[14] Affidavit of Ms C 26.9.2013 at paragraph [7]
Ms C also deposed that the Mother made some transactions on her debit card that she did not authorise, as she had been made aware of the PIN number for the card. Ms C reported the matters to the Police who charged the Mother with an offence in relation to the cheque in May 2012.[15]
[15] Affidavit of Ms C 26.9.2013 at [9] and [111]
The Mother promised to repay Ms C the sum of approximately $3,000.00 at the rate of $100.00 per month for unauthorised transactions on the debit card, but two of the four cheques for $100.00 the Mother gave her were dishonoured.
The Mother has arranged for an organisation called Christians Against Poverty to attend to the repayments to Ms C. At the time of swearing her affidavit on 26^th September 2013 Ms C had received a total of $161.00 from Christians Against Poverty and an amount of approximately $2,639.00 was still owing to her.[16]
[16] Ibid at [[18]-[19]
These proceedings were originally scheduled to be heard on a final basis in September 2012, as set out in paragraph [16] above, but the matter did not proceed as it was discovered that the Mother had not disclosed that she had been charged by the Police with a criminal offence relating to the theft and unauthorised use of the cheque.
The Mother annexed to her affidavit of 27^th September 2013 a copy of a report dated 5^th November 2012 from one Mr P, a psychologist, whom she had consulted for the purpose of her court proceedings in the Local Court at [omitted] relating to the offences. Whilst the report stated that the Mother had taken steps to recover from the Major Depressive Disorder with which she was diagnosed, it is apparent that she is not in any way being monitored as to her abstinence from illicit drugs or alcohol or her compliance with her medical advice. She has taken herself off her medication and has not seen her general practitioner since late last year.
The circumstances of the Mother’s unilateral decision to remove herself and the children to [O], which precipitated these proceedings, are themselves an explanation of the Father’s deep distrust of the Mother.
The Father is also critical of the Mother’s instability, especially in her various changes of accommodation since she returned from [O]. The Mother has been living at an address in [R], but it did not come out until the hearing that the premises had been sold and the Mother will be required to vacate by the end of November. The Mother has given evidence that she is seeking to obtain other accommodation in the [R] area but she did not produce a copy of any lease to show that she has other accommodation for herself and the children from the end of November onwards.
The Father has produced evidence going to the Mother’s untruthfulness, including untrue statements to Centrelink, her production of false emails to an estate agent purporting to be from an employer called Ms L, and her use of the name of a friend called Ms G as a reference to the same agent.
The email from Ms G to the Mother dated 24^th December 2011which forms Exhibit 7 contains a devastating indictment of the Mother’s behaviour towards her. The email refers to “the path of destruction you have left in your wake” and contains a list of all the bad things Ms G claims the Mother did to her or said about her.
Ms G stated:
With this in light I have to say I believe you need a lot of help. Not because you hurt me and I want revenge but because the extent of your lies are far beyond anything I could have imagined. They were blatant, manipulative and self-serving all the while you were pretending to be my friend and comforting me when I couldn’t understand why my world was falling apart.
I have lost a lot through this ,a happiness I have never had before and will never have again…Your deceit will affect us for the rest of our lives.
You should be ashamed of yourself.
How dare you!
The Father is deeply distrustful of the mother due to:
a)the instability of her accommodation and work arrangements;
b)her proven untruthfulness in the past, some of which involved the children, such as her statement to him that the children would not be spending time with him because she was taking them on a completely fictitious trip to Brisbane; and
c)her failure to disclose relevant details, such as her living arrangements.
In my view, the evidence produced by the Father is sufficient to satisfy the Court that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for them. The presumption is rebutted. If the Father cannot trust the Mother, how can he rely on her in any situation where they have to exercise joint parental responsibility for one or more of the children? It would not work.

The conclusion is that the Father should have sole parental responsibility for the children.

The best interests of the children

As I said at paragraph [62] above, there is no issue between the parties and the Independent Children’s Lawyer that, for the immediate future at least, the children should live with the Father. It is the Mother who proposes a phased change in the arrangements for her to spend time with the children until the beginning of the fourth school term in 2014 leading up to the children living with each parent for equal time, week and about.
This proposal is opposed by the Father and not supported by the Independent Children’s Lawyer, as not being in the children’s best interests.
In my view, there is a benefit to the children of having a meaningful relationship with each of their parents. Despite the criticisms of the Mother, it is apparent from the report of Dr B that the children love their mother and she, in turn, loves them. It is also clear that the children love their father and he loves them.
Although the Mother has criticised the father for using abusive language to her, this is not a case where the children are at any risk of physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.
[Z] was too young for her views to be sought by Dr B and he did not seek to interview her at all, for that very reason. The two boys were interviewed and, whilst they both expressed a wish to spend the same amount of time with their father and their mother, Dr B cautioned against giving these expressed views too much weight, saying in his report:
Given their ages, I do not recommend the Court place too much weight on this expressed view, other than being mindful that it is an age-appropriate desire to seek a ‘fair share’ arrangement.[17]
[17] Report page 20 at [83]
In my view, those expressed views of the two boys are indicative of the fact that the boys love both parents but I do not propose giving any other weight to those views, for the reasons expressed by Dr B.
The children clearly have a strong and loving relationship with each parent, although they are not unmindful of the Mother’s tendency towards untruthfulness. Dr B described the children as having strong attachments with both parents. The children appear to have a warm relationship with the Father’s fiancée, Ms M, who was described by

Dr B as having an “interpersonal style …characterised as warm, friendly and sympathetic, valuing harmonious relationships and deriving much of her satisfaction from these relationships”.[18] He stated that the children, especially [Z], appeared comfortable in Ms M’s presence.
[18] Ibid page 13 at [51]
Dr B’s view of Ms M was confirmed by her evidence in the witness box. She presented as a pleasant young woman with a strong commitment to the Father and a realistic approach to the three children.
Each parent has acted to communicate with the children and spend time with them. The Father was critical of the Mother’s failure to reply to a letter dated 21^st October 2013 from his solicitors to hers about making arrangements for the children over the Christmas school holidays in the event that judgment in this matter may not be delivered before the Christmas school holidays (Exhibit 10). Whilst the Father need not have worried, as it is proposed to hand this decision down in early November, the failure by the Mother to engage with this proposal is illustrative of a failure to make decisions about the children.
The Mother’s actions in removing the children from the school and day care where they were and taking them to [O] does not indicate the Mother was considering the children’s long-term educational needs.
The Father is fully supporting the children financially. He was paying child support. The Mother has given no evidence of paying for the maintenance for the children other than when they are in her care.
In my view, the likely effect of any changes in the children’s circumstances is that their lives would be subject to some disruption if the Mother’s proposal were implemented. It appears, with respect, to be inherently destabilising to introduce an arrangement each school term in which the children would spend one more day each fortnight with their mother and one less day a fortnight with their father. It is clear from the parties’ evidence and Dr B’s report, even though it is over a year old, that the Father is the parent more able to offer the children a stable living environment, as he has done since early last year. No major change is warranted, in my view.
There does not appear to be any practical difficulty or expense in the children spending time with either parent or communicating with them. There is ample evidence that the children see each parent regularly and communicate with each parent regularly.
The Court must consider the capacity of each of the children’s parents and other people to provide for the children’s needs, including their emotional and intellectual needs. The father disputes Dr B’s view that he showed “a concerning degree of rigidity in dealing with the children’s negative emotions”.[19]He clearly has the capacity to meet the children’s physical and educational or intellectual needs. I consider that Ms M has a capacity to meet the children’s needs.
[19] Report page 18 at [73]
The Mother clearly loves the children, but her previous erratic behaviour has, to my mind, shown a tendency for her to put her own wishes before the needs of the children.
The three children are still young. [X] is ten year old boy, still in primary school. [Y] is about to turn nine. He too is still in primary school. [Z] is a little girl somewhat younger than her brothers, not yet 6 years old. She has started school. It is concerning that the boys were assessed as having above average levels of separation anxiety, but it should be noted that they were assessed in early March 2012, not long after the Mother had abruptly relocated them to [O] and they had, some time later, gone into the majority care of their father.
The Court need not consider the matters set out in s.60CC(3)(h) as the children are neither Aboriginal nor Torres Strait Islander children.
The Father’s attitude to the children and the responsibilities of parenthood appears to be that he takes these matters seriously. The evidence is that he is aware of the children’s need for stability and structure in their lives. Whilst his communication with the Mother is not good, he acknowledges the children’s attachment to her and their need to communicate regularly and maintain a strong relationship with her.
Dr B was critical of the Mother at paragraph [74] of his Report, saying:
Ms Brimm withheld the children’s contact with the father over a month or so, accusing him of verbal abuse towards her. Furthermore, she relocated to [O] with the children without the father’s consent. It would be reasonable to conclude that these events would not have promoted the children’s relationship with their father, and were clearly more focused on her needs rather than the children’s.[20]
[20] Report page 18 at [74]
This, of course, does not show the Mother’s attitude to the responsibilities of parenthood in a good light.
Whilst the Mother accused the Father of verbal abuse towards her, this is not a case where family violence is an issue. There is no family violence order in force, nor is there any evidence that such an order has applied to either of the parties or the children.
It would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to these children. For the reasons I have mentioned above, this is a case where there is evidence to rebut the presumption that equal shared parental responsibility is in the children’s best interests. I have considered the oral evidence of Dr B that equal shared parental responsibility would be preferable to an order for sole parental responsibility to the father, because it is important to the boys [X] and [Y] to know that (both) of their parents are involved as decision makers in their life. However, on considering the evidence as a whole, I remain convinced that equal shared parental responsibility would not be in the children’s best interests, as the levels of communication and trust between the parents would not allow such an arrangement to work.
Dr B said in evidence that the children should be having substantially more time with the mother. He was not specifically opposed to the Mother’s proposal in her Response to move towards shared care over a period of 15 months (it is more like 12 months) as the children all have very well established relationships.
However, this is another area where I am not prepared to follow Dr B’s views to the letter. There is no magic in a Family Report or a Court Expert Report, but such a report is usually a most useful resource for a Court making parenting orders. It is the judge who must decide, having considered all the evidence (Hall & Hall[21]).
[21] (1979) 5 Fam LR 609; FLC 90-713
There is, to my mind, scope for the children to spend some more time with their mother, notwithstanding concerns about her future accommodation arrangements. The Father proposes that the children should spend the time with their mother during the school term on alternate weekends from after school on Friday until 6:00pm on Sunday (or 6:00pm on Monday if it is a public holiday) and does not support an arrangement where the Mother would take the children to school on the Monday morning. The reason given is that the Mother lacks the ability to maintain a calm, orderly household and arrangements in her home can be somewhat chaotic.
The Independent Children’s Lawyer proposes that the children should remain with their mother until the commencement of school on the Monday morning, but, curiously, proposes that if the Monday is a public holiday the children would remain in their mother’s care until 6:00pm on the Tuesday. This was not explained and may be a clerical error.
The fact is that the Mother will have to organise her household to get the children to school on Monday morning once a fortnight. If she is serious in proposing that the children should move towards an equal time arrangement, then organising the children to get to school on time every other Monday should be well within her capacity. If the Monday when the children are with her is indeed a public holiday, then she will have to make arrangements to get the children to school on time on the Tuesday morning.
This arrangement will allow the children to spend three nights a fortnight with their mother as well as the Wednesday afternoon each week from after school until 7:00 pm. They may spend a public holiday Monday with their mother.

Mother’s Day and Father’s Day

I have considered the proposed arrangements for Mother’s Day and Father’s Day and, with respect, I am not in agreement with any of them. In my view, these days are important for children as well as for their parents. They are both of particular significance to children and of special significance to their parents.
Mother’s Day falls on the second Sunday in May every year. In New South Wales, it will always fall during school term time. Similarly, Father’s Day will always fall during school term time, as it takes place on the first Sunday in September.
This means that if the children are not otherwise spending time with their mother on Mother’s Day, they will need to do so. It will fall on the second Sunday in May, which means that the following day will be a school day. They may just as well remain with their mother overnight and she can take them to school on Monday.
Similarly, if the children would otherwise be spending the weekend with their mother on the weekend that includes Father’s Day, then arrangements must be made for their father to collect them on the morning of Father’s Day so that they may spend time with him. There would seem to be little point in the children being returned to their mother that evening just so that she can take them to school the following morning, so they should remain with their father that night and go to school from their father’s home the following morning.
Of course, the parties may decide between themselves to swap weekends when Mother’s Day and Father’s Day arrive to avoid any difficulty.

Equal time

On present indications, I am not of the view that an equal time arrangement will be in the children’s best interests, now or in the near future.

Application to Re-open Evidence

The matter was listed for decision on the morning of 12^th November 2013. The day before, the Mother filed an Application in a Case seeking leave to re-open in order to file and have the Court consider a further affidavit sworn by the Mother that day.
The Mother was granted leave and was permitted to read her affidavit.
The Mother deposed that she had on 3^rd November 2013 signed a 12 month lease on a property situated about 600 metres from her current residence. The house is a 3-bedroom single storey house with off-street parking, a carport, a separate study and a gas operated kitchen. The Mother also stated that the house had an external laundry and separate storage room and had a small garden and a large backyard.
The Father’s solicitor and the Independent Children’s Lawyer each made submissions to the effect that the material in the fresh affidavit changed very little and the availability of secure housing was but of the issues that were relevant in the Court’s consideration of the best interests of the children.
Counsel for the Mother submitted that the material in the affidavit was important to the Court’s consideration of the matters under s.65DAA of the Family Law Act.
I have considered the further material in the Mother’s affidavit. It is relevant but not sufficient to change my view that an equal time arrangement is presently in the children’s best interests or will be in the near future.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date: 13 November 2013