T & N
[2001] FMCAfam 222
•30 November 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| T & N | [2001] FMCAfam 222 |
| FAMILY LAW, CHILDREN – Application for shared and equal residence – factual elements that indicate equal sharing of time may promote best interests of child considered – hostile relationship between the parents – parents unable to communicate – hostile parental relationship – unified approach to religion and place for school – application for equal sharing of time refused – children to live primarily with one parent and spend significant time with other parent – residence/residence order made – application for authority that child travel to Lebanon refused – no pressing reason for travel – mother’s anxiety regarding climate of international uncertainty following terrorist attack on 11 September 2001 taken into account – Family Law Act 1975 (Cth) ss 60B, 65DA(2), 65E, 68F(2) – Hague Convention on the Civil Aspects of International Child Abduction. |
B and B: Family Law Reform Act (1997) FLC 92-755 followed
R and R: Children's Wishes (2000) FLC 93-000 cited
Bartholomew v Kelly [2001] (Unreported, Full Court of the Family Court
of Australia, Finn, Coleman and O’Ryan JJ, 14 August 2001) discussed
A and A: Relocation Approach (2000) FLC 93-035 cited
Forck and Thomas (1993) 16 Fam LR 516 discussed
H and H (1995) FLC 92-599 discussed
Halfiger and Halfiger-Knoll (1990) 13 Fam LR 786 discussed
Pagden and Pagden (1991) FLC 92-231 discussed
A v A (Minors) (Shared Residence Order) [1994] 1 FLR discussed
B (Minors) [1997] EWCA Civ 2418 (6th October 1997) discussed
Re: H (Child) [1999] EWCA Civ 1376 (10th May, 1999) discussed
D v D (Shared Residence Order) [2001] 1 FLR 495 discussed
Hamlyn v. Hamlyn (1999), 50 R.F.L. (4th) 398 (Nfld. U.F.C.) discussed
Smith v. Gale (1999), 49 R.F.L. (4th) 400 (Nfld. U.F.C.) discussed
Puddicombe v. Puddicombe 2000 A.C.W.S.J. LEXIS 54138 cited
Penner v. Penner (1999), 44 R.F.L. (4th) 294 (Man. Q.B.) discussed
Ness v. Ness (1999), 43 R.F.L. (4th) 363 (B.C. C.A.) discussed
Tacit v. Drost (1998), 43 R.F.L. (4th) 242 (Ont. Gen. Div.) discussed
MacDonald v. MacDonald 2001 A.C.W.S.J. LEXIS 1164 discussed
Robinson v. Filyk (1996), 28 B.C.L.R. (3d) 21 (C.A.) cited
Larden v. Larden 2001 A.C.W.S.J LEXIS 2896 cited
Gordon v. Goertz, [1996] 2 S.C.R. 27 cited
Reimer v. Appa 2001 Ont. Sup. C.J. LEXIS 664 discussed
Young v. Young [1993] 4 S.C.R. 3 cited
Line and Line (1997) FLC 92-729 cited
| Applicant: | J T |
| Respondent: | F N |
| File No: | ZP3421 of 2001 |
| Delivered on: | 30 November 2001 |
| Delivered at: | Parramatta |
| Hearing Date: | 4 & 8 October 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Ms W. Langley |
| The Applicant: | The Applicant instructed counsel directly [address] |
| Counsel for the Respondent: | Mr G. Foster |
| Solicitors for the Respondent: | McDonell Milne Toltz Solicitors |
ORDERS
That all existing parenting orders are discharged.
That other than as provided in these orders the children H T born
2 November 1989 and A T born 13 April 1992 (“the children”) live with the father.That the mother be responsible for the day to day care, welfare and development of the children when they are in her care.
That the father be responsible for the day to day care, welfare and development of the children when they are in his care.
That the father and mother be jointly responsible for the long term care, welfare and development of the children.
That the children live with the mother:
(a)From 5.30pm Friday until the commencement of school Monday each alternate weekend commencing 7 December 2001.
(b)From 5.30pm Monday until the commencement of school Tuesday each alternate week, commencing 17 December 2001.
(c)For the first half of the Easter, Winter & Spring school holiday period in each year ending with an odd number commencing at 9.00am on the first day of the school holiday period and concluding at 2.00pm on the middle day of the holiday period.
(d)For the second half of the Easter, Winter & Spring school holiday period in each year ending with an even number commencing at 9.00am on the middle day of the school holiday period and concluding at 2.00pm on the last day of the holiday period.
(e)For one half of each Christmas school holiday period, the first half in 2001/2002 and the second half in 2002/2003 alternating each year thereafter.
(f)On the weekend including Mother’s Day from 3.00PM on the Saturday until 5.00PM Sunday.
(g)On public holidays, adjacent to any day the children are in the mother's care. If the public holiday is a Friday the residence period shall start at the usual time on the Thursday and if it is a Monday shall conclude at the usual time on the Monday.
(h)For one half of the Islamic festival Eid Fater.
(i)For one half of the Islamic festival Eid Adhar.
(j)At other times as agreed between the parties.
SCHOOL HOLIDAY RESIDENCE:
1.SHALL commence at 9.00AM
2.SHALL conclude at 2.00PM
3.WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.
4.Pupil free days are deemed to be school holidays.
Alternate weekend and alternate Monday residence is suspended during school holidays.
On the weekend that includes father’s day the children shall live with the father.
That for the purpose of changeover, the mother shall collect or cause a family member to collect the children from the father’s home at the commencement of her residence periods. On those occasions when the children are to attend school immediately from the mother’s care, the mother shall be responsible for ensuring that the children are delivered to school.
Excluding those occasions when the children go to school directly at the end of residence periods with the mother, the father shall collect or cause someone to collect the children from the mother’s home at its end.
That each of the parties be entitled to obtain directly from any school attended by any of the children or from any health or welfare professional or other professional attended by any of the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
That the father and the mother, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the children H T born 2 November 1989 and A T born 13 April 1992 from the Commonwealth of Australia. It is requested that the Marshal of the Court and all agents of the Australian Federal Police and all police forces and services of various states and territories of Australia are required and empowered to give effect to these orders to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
THAT pursuant to Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
That all outstanding applications are otherwise dismissed.
That all exhibits are to be returned at the expiration of one calendar month unless an appeal is lodged.
That the person who caused any subpoena to issue uplift any documents produced under subpoena and return them to their owner within 14 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP3421 of 2001
| J T |
Applicant Father
And
| F N |
Respondent Mother
REASONS FOR JUDGMENT
The proceedings
These proceedings are for parenting orders, residence and contact and also an order that the father have authority to allow one of the children to travel to Lebanon for a holiday. The proceedings concern the parties’ two children H T born 2 November 1989 and A T born
13 April 1992 ("the children").
The application
J T (“the father”) filed an application for final orders on 13 October 2000. The application was filed in the Family Court at Parramatta. He sought an order that the parties’ elder son be permitted to travel to Lebanon for a period of three (3) months during the 2000/2001 Christmas school holidays. That trip did not take place and the father sought orders so that it can occur during the next school holidays. In his reply filed 7 June 2001 the father identified the additional orders sought by him. The further orders sought were:
1. That the response of the respondent mother filed on 24 November 2000 be dismissed.
2. That order 7 of the orders made by the Family Court on 20 October 1997 be vacated.
3. That the respondent mother have contact with the children
(a) Each alternate weekend from 5.00pm Friday until 5.00pm Sunday.
(b) For two periods of one week block contact each year, commencing at a time as may be agreed between the parties.
(c) For such other times as the parties may agree.
4. The mother pay the father’s costs.
F N ("the mother") on 24 November 2000 filed her response to the father’s initiating application. She sought orders that the children live with her, that they have reasonable contact with their father and injunctions to restrain the removal of the children from Australia. At the commencement of the proceedings there were tendered minutes of the orders sought by her at trial[1]. They are as follows:
[1] Exhibit A
1. That the application of the applicant father filed herein on 13 October 2000 be dismissed.
2. That the consent orders of the court dated 24 November 1997 be vacated.
3. That the father and the wife be granted joint long term responsibility for the care, welfare and development, including but not limited to, issues of health, education and religion of the two children of the marriage namely H T born2 November 1989 and A T born 13 April 1992.
4. That the father and wife have the day to day responsibility for the said children during such periods of residence as the children may be with each of them.
5. That the said children reside with the wife as follows:
(a) During each school term commencing on the first Friday of term and then every alternate week thereafter from after school Friday until before school the following Friday.
(b) During each summer school vacation in December/ January commencing in an even numbered year for the first half of the days of such holiday period commencing on the day school term concludes and ending at 5.00pm on the day being the midpoint of such holidays, and during each such summer school vacation commencing an odd numbered year for the second half of such holiday period commencing at 5.00pm on the day being the midpoint of such holidays and ending before school on the day school resumes.
(c) During the Easter, June/July and September/October school holiday periods as follows:
(i)in each even numbered year for the first half of such holiday periods commencing from after school on the day term concludes to 5.00pm on the Saturday of the middle weekend of the holiday period.
(ii)In each odd numbered year for the second half of such holiday periods commencing at 5.00pm on the Saturday of the middle weekend of the holiday period and ending before school on the day school resumes.
(d) Where Mother’s Day does not fall upon a weekend on which the children are otherwise to reside with the Wife the children shall reside with the Wife on such weekend from after school Friday to before school Monday.
6. That the said children otherwise reside with the Father.
7. That the applicant father be restrained until further order of this court from removing or attempting to remove the said two children or either of them from the Commonwealth of Australia.
On 4 October 2001 the proceedings were transferred to the Federal Magistrates Court for hearing.
Chronology of events
The father was born on 10 September 1963 and is aged 37 years. He was born in Lebanon. Together with his family he migrated to Australia in 1977. He was granted Australian citizenship in 1982.
The mother was born on 26 January 1971 and is aged 30 years. The mother was born in Sydney, Australia. The parties share Lebanese heritage. They are first cousins.
On 8 August 1988 the parties married in Sydney. Their parents arranged the marriage. At the time of marriage the mother was 17 years old and the father was 25 years old.
When they married the father was a qualified motor mechanic. He owned and ran his own service station and trucking business. From the start of the marriage he worked long hours. The mother had just finished school when she married. Quickly, the parties were under significant financial pressure and struggled to survive financially.
Twelve months after their marriage H, the parties’ eldest son, was born. He was born on 2 November 1989 and is 12 years old. Their youngest son, A T, was born on 13 April 1992. He is 9 years old. When H was about 4 years old the mother started paid part-time employment. She realised that she could be financially independent of the father and ended the marriage.
Hence the parties separated on 10 March 1996. At separation the children remained with the mother. They exercised almost daily contact to the father. He would visit the mother's unit, spending time with them there or at his mother’s home. Her parents, particularly her father reacted poorly to her decision to separate. He father forbade the family to have any contact with her and they gave her no support. She lived in rented accommodation at Sans Souci, stayed occasionally with her sister S and for a time in a unit owned by her parents. They evicted her.
On 8 August 1997 a Decree Nisi dissolving the marriage was ordered.
The father paid a bond on a rented unit at Greenacre for her, leasing the property in his name. When H started school he also paid the child's school fees. This conflicts with the mother's evidence that she "received no financial support from J either for the children or myself"[2]. The father alleges that he paid the rent on a continuing basis, a factual dispute I am unable to adjudicate. It is clear even on the mother’s oral testimony, however, that he did give some if only limited financial support. She was unable to work and care for the children on her own.
[2] Affidavit sworn 12 June 2001 para 6
Although in her oral testimony the mother alleged that she allowed the children to live with the father partly because he was stalking her, her affidavit does not give this as part of her rationale.[3] I am satisfied that the mother was in a parlous financial position and undoubtedly under great emotional pressure as a consequence alienation from her family. I am not satisfied that the father was stalking her. Her decision to hand over the children was taken with a heavy heart and is one she deeply resents taking.
[3] Affidavit sworn 12 June 2001 para 7
Because she had great faith in the paternal grandmother’s commitment to the children and her capacity to care for them, she arranged that the children go to live with the father. This was on the basis that he would live with his mother. She expected that she would have extensive and liberal contact to the children. The specifics of her expectation were not discussed with the father.
The father retained solicitors to prepare consent orders that reflected the parties’ agreement. The mother attended his solicitors and was told that she should get independent legal advice. The father then took her to see another solicitor in Lakemba who gave her advice before she signed the orders. The orders reflected the agreement reached between the parties. I am satisfied that the mother understood the ramifications of the orders before she signed them.
The parties gave effect to their agreement before the orders were made. The children came into the father’s care in about August or September 1997. The mother makes no complaint about the contact she exercised until the father became aware of her relationship with Mr A. When he found out, having seen Mr A leaving her unit, the father abused and attacked the mother. Her evidence when tested on this issue was credible. By comparison the father was evasive. He hit her and ripped a bracelet off her arm. This was in about December 1997.
On 5 November 1997 an apprehended violence order was entered for the protection of the mother’s parents from the father. The order was entered by consent. It has expired.
For the next two and a half years the mother’s contact was exercised daily when she attended at the father's home. She made all arrangements with the children. She would drive over after school and ask to see the children. They would tell her if they could. Often contact was limited to time at the front of the house. Overnight contact took place about once a month on the weekend.
In about December 1997 the mother reconciled with her family and returned home to live with her parents. She lived there for about 6 months, conforming to their expectations of her. When she left they rejected her again. She was excluded from her family until June or July 1999. Her mother was very ill at this time and the mother went home to care for her.
In January 1998 the mother started full time work with One Tel. At the father's request she would sometimes collect the children from school and take them to their tutor. The manner in which she gave this evidence strongly indicated that the mother believes the father did this for his own convenience.
In April 1998 the father was arrested and charged with assaulting the mother. Simultaneously the police took out an apprehended violence order to protect her from him. Ultimately the charge was dismissed. There is a significant factual dispute about how this happened. The mother alleges she was blackmailed in that the father said he would be more co-operative about contact if she declined to give evidence. He denies this and says that he appealed his conviction to the District Court, which appeal was allowed. Contrary to the mother's evidence he says she attended court and gave evidence against him. This is a matter that could have readily been addressed by providing to this court matters of public record. Neither party presented it. I am not satisfied that the evidence is sufficiently reliable to enable the court to make findings of fact with any degree of comfort concerning this factual dispute.
During Ramadan in 1999 the children went to the mother and ate their evening meal with her. Ramadan continues for 4 weeks. The mother was working shift work at the time. Any weekend overnight contact came to an end at about this time. The children saw their mother on some weekends, sometimes Friday, Saturday and Sunday on the one weekend. Inexplicably the father would not allow them to stay overnight.
In June 2000 the children's paternal grandfather died. The mother visited the father's home on a number of occasions during the mourning period. Either shortly before his death or in the weeks immediately following it, contact broke down. Both parties overstate its significance. The mother travelled to Perth in September 2000 for some weeks, which disrupted contacted. I do not accept that this means she had little interest in the children. She alleges that the contact was interrupted after the grandfather's death. I do not accept that this was unreasonable. If the father's family was in mourning, short term disruption was not unreasonable.
On 29 June 2000 the mother married B A. Initially when she asked the father for his consent that the children attend her marriage he agreed. At the last moment he withdrew his consent and the marriage proceeded without the children's participation. He gave no adequate explanation and this behaviour reflects poorly on him. He did not suggest that his decision related to his father's death. The mother and children were upset that this special day could not be shared.
In early 2000 the mother sought information from the children's school concerning their academic progress. Her request was refused. She only receives information from the children's reports and her cousin. Whilst the father has orders that give him responsibility for the children's education, there was no basis for failing to give the mother information and authority to receive information from the schools. Clearly she has a deep interest in her sons education.
When the father filed his application that started these proceedings the mother decided that her circumstances were appropriate to challenge his continued full time care of the children. In response the father's approach to contact improved and the children started regular overnight contact on weekends. Her requests for midweek evening contact were routinely agreed to. This meant that she was seeing them 2 or 3 times in the evening after school. While the father was in Lebanon between April 2001 and 22 May 2001, the children spent greater amounts of time with the mother. Upon his return, the children were still able to spend part of 13 out of the 17 weekends prior to the hearing with the mother. She alleges that this is an inadequate response to the father's obligation to facilitate contact. This is not a valid criticism. Similarly she complains that he has refused some of her requests, made to the children not the father, for mid week contact. The father explained that he takes the children shopping and likes to have them with him two evenings a week during the week. His desire is understandable and not unreasonable. Mostly these evenings are Monday and Wednesdays.
On 13 May 2001 the father married R D.
On about 19 July 2001 the father’s wife migrated to Australia.
Current orders
On 24 November 1997 the parties entered consent orders in the Family Court at Parramatta. Those orders comprise annexure A to the mother’s affidavit filed 13 June 2001 and hence are registered in this court. The consent orders provided as follows:
1. That the children H T born 2 November 1989 and A T born 13 April 1991 reside with the father.
2. That the father be responsible for the day to day care, welfare and development of the said children.
3. That the father and mother be jointly responsible for the decisions regarding the long term care, welfare and development of the said children.
4. That the father have sole responsibility for decisions about the schooling of the said children.
5. That the father have sole responsibility for liaising with schooling authorities, school teachers and receiving school reports in relation to the said children.
6. That the father have sole responsibility for decisions about the education of the said children.
7. That the mother have free and liberal telephone and personal contact with the said children at such times as the parties may mutually agree.
The father relied on the following evidence at the hearing:
·His affidavit sworn and filed 6 December 2000 and his oral testimony.
·His affidavit sworn and filed 3 October 2001.
·Oral testimony of R T, which evidence was given with the assistance of an interpreter.
The mother relied on the following evidence at the hearing:
·Her affidavit sworn 14 December 2000 and filed 18 December 2000 and her oral testimony.
·Her affidavit sworn 27 September 2001 and filed 28 September 2001.
·Her affidavit sworn 12 June 2001 and filed 13 June 2001.
·Affidavit of B A sworn 12 June 2001 and filed 13 June 2001, together with his oral testimony.
Documents were tendered in the mother’s case that became exhibits in the proceedings.
On 14 March 2001 the Family Court ordered pursuant to section 62G(2) that a Family Report be prepared. Court Counsellor Bruce Hawthorne issued a report on 31 May 2001[4]. He conferred with the mother on 18 May 2001 and the parties and children on 28 May 2001. The court counsellor was cross-examined. He “strongly recommended that an order for residence include a clear order for the children’s contact with their non-resident parent”[5]. He did not make specific recommendations as to the competing applications for residence. He raised the possibility of a shared residence arrangement reporting, “shared residence could well be an option because the parents live reasonably close to each other, and a third party transports the children to school”[6]. Although an option he expressed misgivings about shared residence for children in a situation such as H and A found themselves viz parents who are significantly hostile to each other.
[4] Exhibit D
[5] Page 16
[6] Page 15
The father’s proposal and current circumstances
The father lives at [address] South Hurstville. This is his mother’s home. His father died in June 2000. He moved into the home shortly after the parties separated. The home is a three bedroom house with a granny flat at the rear. In about August 1997 the children left the care of the mother and came to live with the father at this home. They have lived there since that time. The children share a bedroom. The father’s mother, Y T who is 70 years, his wife R and nephew M live with him.
The father works casually as a construction worker. His work is primarily driving, digging and labouring. His brother, M owns some equipment that the father uses. M provides the money that the father can use, for example, hiring trucks when he tenders successfully for work. M is employed as a steward with United Emirates Airline, based in Dubai. In addition to managing funds for M, the father can also source funds he manages for another brother, T, which funds are with the Commonwealth Bank in South Hurstville. Ultimately, if he is required to provide security to ensure H’s return to Australia the father will use funds partially provided by his brothers.
When the children came into the father's care, he gave up full time employment. He plans to return to full time work shortly. At present, when he works he works between about 7.00am and 3.30pm. If he is working full time he expects that he will work between about 7.30am and 3.30pm. He does not and will not work on the weekends. His work has been spasmodic and he worked six days during September. He receives social security benefits. The mother pays child support in the amount of $170.00 per month.
R is expecting a child by the father in January 2002. She will celebrate her twentieth birthday at about that time. She and the father's mother are primarily responsible for the housework. They share it together. R speaks Arabic and is starting to learn some English. She and the children speak to each other in Arabic and she helps them with their reading and writing in Arabic. In turn they help her with English. After the birth of her child, R may undertake a TAFE course studying English. Otherwise, she has no plans to work outside the home.
When the father returns to full time employment he proposes that his mother and wife will care for the children when he is at work when necessary. Provided he is working construction sites near to the home, he will be available to help care for the children when they are not at school. There will only be short time frames when he may leave earlier or arrive home later than the children will.
Although the paternal grandmother did not give evidence I am not satisfied that I should draw the inference pressed by the mother's counsel. The father prepared the proceedings himself, retaining counsel to draft an affidavit and to appear as his advocate. He lives in his mother's home and she has welcomed his wife into the home. I am satisfied having regard to this later fact in particular that she supports his continuing care of the children and is likely be available to continue to assist in the care if needed.
These proceedings were initiated when the father sought orders that would ultimately enable H to travel to Lebanon for a holiday. Originally, the father had proposed that H travel to Lebanon for three months during the 2000/2001 Christmas school holidays. Because H is due to start high school in 2002, the father proposes that the child leave Australia on about the 23rd or 24th of December 2001 and return in late January 2002. He plans that H travel with United Emirates, travelling from Sydney to Singapore, Singapore to Dubai and from Dubai to Beirut. The child may have to break his journey in Singapore and also Dubai. The airline will accept H travelling as an unaccompanied minor. The father plans that H would travel, to the extent possible accompanied by his brother M. This would be achieved by making travel arrangements that coincided with a flight or flights that M was working. Because of mid journey crew changes M would not work an entire flight between Sydney and Beirut. In the event he is unable to obtain a ticket for a flight worked by M, the father would try to ensure that the child travels in the company of other family or friends. If M can utilise staff travel entitlements, the father can obtain a ticket for $300.00 return. Otherwise a ticket purchased commercially will cost $1,350.00. If necessary, his family will help him with the cost of purchasing the ticket. The father will stay in Australia.
In Lebanon, H would be collected by T who would take him to a small village about 1.5 hour's drive from Beirut. The village comprises about 800 people. It is a small community that has many members of the father’s and the mother’s family. H would stay with T. T is married and has eight children ranging in age from 12 years to 3 years. Since his return to Lebanon in 1991, he has visited Australia on two occasions, the most recent being March 2001. Both children have a comfortable relationship with their uncle. H would also stay with the father’s sister M. M is married and has two children, aged 7 and 4 years. She returned to Lebanon in 1996 and most recently travelled to Australia in mid 2000. The respondent’s grandmother, S also lives in Lebanon. H would spend some time with his maternal great grandmother and members of the respondent’s family. The father agrees that he could lodge five thousand dollars ($5,000) as security to ensure the child’s return to Australia.
Both parties agree that the current orders, which lack specificity for contact times, are not working. The father agrees that the times should be defined as between the parents. He proposes that the children reside primarily with him and exercise alternate weekend contact and have some school holiday time with the mother. Although not reflected in his application, he indicates that he would be flexible and facilitate the children enjoying special times with their mother should they wish to do so.
The mother’s proposal and current circumstances
The mother lives at [address] Penshurst. Her home is about a five - ten minute drive from the father’s. Until June 2001 and for about two and a half years beforehand she was employed by One Tel. With the collapse of One Tel her employment finished. She was unemployed for only four weeks. On 16 July 2001 she started work with TNT Express in their courier and logistics department as an internal sales executive. Her salary is $40,000 per annum. Unlike her former position, this position does not require interstate travel. Her hours of employment are regular, and she works between 8.30am and 5.00pm five days per week. She leaves home at about 7.30am and returns home at about 5.30pm. Her business premises are located at Mascot and she travels to and from them by private car.
The mother is entitled to take four weeks annual leave. Leave has been approved for three weeks during the forthcoming school holidays. Any leave she is entitled to take will be taken during school holidays.
Both parties share the Islamic faith and Lebanese heritage. Thus the mother agrees that the children should continue to attend the Malek Fahad Islamic School at Chullora. This is the school both boys have attended since they were in preschool. H is in year 6 and has been attending the school for seven years. A is in year 4 and has thus attended the school for five years. The parties’ cousin, B T is a teacher at the school. She collects the children in the morning at about 8.00am and returns them home between 3.30 and 3.45pm. B agrees that she will continue to collect and return the children irrespective of whose care they are in.
Like the father the mother has also remarried. Her husband is B A. Shortly after meeting in August or September 1997 they started dating. At the time their relationship started the children were already living with their father. Although their relationship started slowly, Mr A and the mother were seeing each other about 3 or 4 times a week. Until they had established a committed relationship, Mr A did not participate in the mother's contact with the children.
Upon their marriage Mr A moved into the mother’s home. This is an appropriately furnished two bedroom house. Until recently, he worked as a storeman for Woolworths. At present he is unemployed. I accept that he will resume full-time employment shortly. He is undertaking tertiary studies, studying at the University of Sydney for a Diploma in Law. He strongly supports his wife's application for shared residence. Indeed the decision to bring this action was made jointly. Whilst he actively participates in contact he does not devote all of his time to the boys. He pursues his own interests, including his studies. Such is his loyalty to his wife that he cannot see himself forming a friendship with the father.
The mother lives nearby to her parents. Her mother is 49 years old and her father is 59 years old. The mother's brothers, their families and her sisters all live in the Hurstville - St George region. The former living in Oatley and Allawah. She proposes that the children share their time equally between the parties. Thus they would live one week with the father and then one week with her. School holidays will be exercised in block halves. B will collect and return the children for school. She plans that B collect the children from her home at 7.00am and return them to her parents’ home at about 3.45pm. Her parents will then care for the children until either she or Mr A has finished work for the day. Mostly this will be at about 5.30pm. Her parents agree to help her care for the children. During school holidays, should either she or Mr A be unavailable the children will stay with their maternal grandparents. Her relationship with her family has healed.
The law
Australian case law
Analysis of the decisions decided subsequent to B and B: Family Law Reform Act (1997) FLC 92-755 reveals little in the way of guidance identifying those factual matters that tend to indicate a shared or equal splitting of time between parents is likely to promote the best interests of the child. The task involved in weighing and evaluating children's wishes,[7] for example, has been decided. So too there is guidance for the adjudication of residence applications determined within the context a parent's planned change in place of residence.[8] In Bartholomew v Kelly (2001), an unreported decision[9] of the Full Court of the Family Court of Australia, Finn, Coleman and O’Ryan JJ dismissed an appeal against orders providing that the parties’ children reside with each of the parents on a fortnightly basis. Here there were serious communication problems between the parents arising primarily because the mother found it impossible to communicate with the father. The trial judge found the father had "abused her most viscously" and that the mother had ”lost confidence and trust in [the father] and she would find it very difficult … to communicate about the children with [the father]." On appeal, the appellant took the Full Court to a series of cases decided before the introduction of the Family Law Reform Act1995 (Cth). The Full Court said (at paras 42 and 43):
"[I]n relation to matters of law and principle, it has to be said that the principles enunciated in the first instance decisions of Forck v Thomas (1993) FLC 92-372 and H and H (1995) FLC 92-599 concerning – to use the language of Counsel for the appellant wife – “the key elements in a successful shared residency arrangement”, did not constitute binding authority on his Honour, such that it might be asserted that he erred in principle in not applying or following them. But in any event, as we read his Honour’s reasons, he was very well aware of the difficulties for a shared residency arrangement (canvassed in those earlier decisions of this Court) where the parties cannot agree, and/or the parties cannot communicate, and/or there is tension or mistrust between them."
[7] R and R: Children's Wishes (2000) FLC 93-000.
[8] A and A: Relocation Approach (2000) FLC 93-035.
[9] Delivered on 14 August 2001.
Thus the Full Court was satisfied that the trial judge had considered the factors that would militate against a shared residence order that split the children's time equally between their parents. The children’s relationship with their father and the success of the shared arrangement to date tipped the balance in favour of such an arrangement being ordered to continue.
Although it is clear that the pre-Family Law Reform Act authorities are not binding authority, in the absence of specific indication of factors that might guide a decision maker, I considered that it might be useful to analyse the earlier cases. Did the earlier authorities identify useful factual considerations to which regard could be had when adjudicating a shared residence application in the context of the current legislation?
In the pre-Family Law Reform Act matters of Forck and Thomas (1993) 16 Fam LR 516 and H and H (1995) FLC 92-599 referred to by the Full Court in Bartholomew v Kelly (supra), Nicholson CJ refused to make orders for joint custody. In Forck and Thomas, the existing shared parenting arrangements were that each parent had the care of the child for alternating periods of seven days. At the date of the hearing, both parties agreed that these arrangements were “unsettling for [the child] and [caused] her a great deal of stress and anxiety” and that the child’s emotional, psychological, intellectual and educational development could be affected. Nicholson CJ considered research literature concerning factors relevant to the success of shared parenting arrangements and emphasised the following matters (at 520-521):
·that increased hostility between the parties in this case had placed a greater pressure on the joint custody arrangement than it had in the past;
·that the geographical proximity of the parents is an obvious practical consideration;
·that the “re-partnering of one or both of the parents can de-stabilise joint arrangements by giving rise to powerful emotions and new obligations”;
·the parents’ communication skills; and
·the parents’ “ability to cooperate and the compatibility of their parenting values and styles”.
His Honour (at 522) stated that the following quotation from an article by Schepis and Formica[10] was “particularly apt” in the circumstances of the case before him: "If parenting values are not compatible it may result in mounting tension and mistrust to the point where the arrangement becomes detrimental and unworkable. Views with a respect to medical preference, the emphasis on homework, selection of television programs, treats and discipline need to be reasonably compatible."
[10] Australian Family Lawyer Vol. 6 No. 2.
He held (at 522) that “it [was] common ground that in this case the shared parenting arrangement … [had] broken down, and it [had] broken down to the point where it [fell to his Honour] to decide upon a new regime”. Both parties thought that access on alternate weekends would be appropriate and his Honour made orders to that effect. In refusing to make an order for joint custody he stated that: "[A] custody order is only an order relating to the daily care and control of the child, not an order that deals with the major decisions that have to be made in relation to the child, and I think that it might be unduly restrictive if I were to leave a joint custody order in place in circumstances where the parties are having difficulties in communicating and agreeing upon various matters."[11]
[11] It is important to note that the concept of “residence” under the Family Law Reform Act only stipulates where a child is to live – not who has responsibility for the day-to-day and/or long-term care, welfare and development of the children.
In H and H, Nicholson CJ (at 81,973) retained his approach in Forck and Thomas, citing the part of the Schepis and Formica article that stated that “[i]f parenting values are not compatible it may result in mounting tension and mistrust to the point where the arrangement becomes detrimental and unworkable” and determining that because the relationship between the parents in the case before him was much worse than that in Forck and Thomas, “it would seem that the concept of shared parenting would be doomed” in this case.
In the pre-Family Law Reform Act matter of Halfiger and Halfiger-Knoll (1990) 13 Fam LR 786, Kay J made shared parenting orders providing for the child to spend alternate weeks with each parent. These orders reinforced the existing shared parenting arrangements to the extent that they provided that the child stay with the mother seven nights a fortnight and with the father seven nights a fortnight. His Honour simply changed the arrangements from a “very patchwork, two-days-on and two-days-off type of arrangement” to an alternating weeks arrangement. Kay J also ordered that the parties have alternate halves of each school holidays and joint guardianship of the child. He found (at 790) that this case presented “one of those rare occasions when a shared parenting order is more appropriate than a sole custody order”. He said:
"It presents it because of the tender age of the child. It presents it because of the geographic proximity of the homes of each of the parties. It presents it because of the wife’s mother being a focal point for both parties, particularly being friendly with the father, and it presents it because the child has already learnt in her tender years to accept such an arrangement and to function adequately under such an arrangement. In my view, at least for the next two or three years, providing that the geographic proximity remains the same, there is no reason to conclude other than the child will continue to prosper in such an arrangement. Of course, as the child’s education progresses and her needs to go into a more regimented regime of home-work and continual supervision, such an arrangement may become inappropriate, but at least in my view, in the foreseeable future of this child’s life, given that she has just turned four, this is one of the rare occasions where a sharing arrangement is appropriate.”
His Honour (at 791) had a significant degree of confidence in the parties’ capability to communicate with each other about matters concerning the child:
"[I] hope that the parties have sufficient nous about them and sufficient flexibility to make arrangements between themselves that would meet the needs of each of the parties and the child from time to time, rather then a rigid insistence on 168 hours a fortnight each. If there is some task that the child needs to perform with one rather than the other, if it becomes too burdensome on the child, the parties can have sufficient flexibility to make their own arrangements that will more than meet the needs of that child. That may pan out to mid-week for the child with one parent and weekends with the other or, extended weekends. It is a matter which, hopefully, the parties can be sensible and flexible about."
However, Kay J’s decision (at 791) that “because of the unusual nature of the order”, the order be supervised pursuant to the provisions of s 64(5)[12] of the Family Law Act for a period of 24 months, suggests that his confidence in the parties’ communication skills was less than complete. One the roles of the supervising counsellor would be to act as a conduit between the parties if they failed to communicate effectively about matters concerning the child.
[12] Section 65L is the corresponding provision of the Family Law Act 1975 (Cth) as amended by the Family Law Reform Act 1995 (Cth).
In Pagden and Pagden (1991) FLC 92-231, Rowlands J (at 78,585) suggested that factors discussed in the Schepis and Formica article were “a useful starting point in a trial where joint custody falls for consideration”. However, he noted (at 78,585) that “the outcome always depends upon the facts of the particular case and the helpful criteria cannot overshadow the factors recited in the legislation in the search for where the welfare of the child lies”. In this matter, the parties lived close to one another, were able to supervise and guide the child properly and possessed compatible parenting values. Despite the existence of various indications that a shared parenting arrangement might be suitable, Rowlands J (at 78,585) held that “there remains the deficit in mutual trust, co-operation and good communications which appear to be desirable elements in a shared custody scheme” and refused to make orders for joint custody. His Honour suggested that the “mutual rift of trust, co-operation and good communications” was, in part, demonstrated by the Family Court proceedings. He went on to cite Kay J in the unreported judgment of Hall v. Fordyce: "I think it is fair to say that the Judges of this Court have not generally embraced the concept of shared parenting in cases where there is any degree of conflict between the parties."
This view coincides with the conclusion reached by Rhodes, Greycar and Harrison in The Family Law Reform Act 1995: The First Three Years:[13]
"Before the introduction of the Reform Act, the most common form of order (both court-ordered and by consent) provided for sole custody to be vested in one parent (usually the mother), with the non-custodial parent having regular access to the child. The Family Court rarely made joint custody orders in contested proceedings. Cases such as Pagden, H and H-K, and Forck and Thomas [footnotes omitted] established that such orders were not appropriate unless the parties’ approaches to parenting were compatible, and there was a relationship of cooperation, good communication and mutual trust between the parents, factors that are generally absent in contested proceedings (pp.37-38)."
[13] A Report by Helen Rhodes, Reg Graycar and Margaret Harrison, published in December 2000 by the University of Sydney and the Family Court of Australia.
English case law
Does this approach reflect the approach taken in comparable jurisdictions? Both the Children Act (UK) 1989 s 11(4) and the Family Law Act 1975 (Cth) (as amended by the Family Law Reform Act1995 (Cth)) ss 64B(2)(a),(3) and (7)), make provision for residence orders determining the person or persons with whom a child will live. Both acts appear to envisage two broad categories of shared residence orders: “symbolic” and “substantial”. Caroline Bridge[14] has explained that the Children Act 1989 Guidelines and Regulations (UK), “although not binding on the court, provide two illustrations of the kinds of arrangements which could be formalised by a shared residence order” (p.20):
"The first example is of weekdays with one parent and weekends with the other or term time with one parent and holidays with the other. This is essentially a residence and liberal contact situation where the parties will benefit from having the arrangement dubbed ‘shared residence’. The semantic distinction is all important and creates a form of symbolic appeasement between the parties. The second example envisages large amounts of time with each parent, [such as] alternate weeks. This situation is characterised by actual equality of time with the child – where the child is much more likely to move between the parents on a weekly or almost weekly basis (p.20).”
[14] Caroline Bridge, “Shared Residence in England and New Zealand – a Comparative Analysis” Child and Family Law Quarterly, Vol 8, No 1, 1996, pp.12-27 at p20.
As Bridge suggests (at p.21), the leading UK case on shared parenting, A v A (Minors) (Shared Residence Order) [1994] 1 FLR clearly falls into the first category of shared residence arrangements envisaged by s 11(4). In this matter, the parties agreed that the children should live with the mother and have access to the father on alternate weekends and for half of the school holidays. The extent of the parties’ access to the children was not at issue. The issue was “[whether] the children [should] continue to see the father for the same period of time under the auspices of a contact order or under the auspices of a shared residence order” (per Connell J at p.671). The father sought a shared residence order as envisaged by s 11(4) of the Children Act 1989.
Butler-Sloss LJ and Connell J agreed in all major respects, finding that the trial judge had exercised his discretion properly in the best interests of the child. They agreed that:
·Riley v Riley [1986] 2 FLR 429 – in which May LJ stated that “to keep a child of nearly 9, not far off from puberty going backwards and forwards each week between mother and father, with no single settled home, is prima facie wrong” – was no longer good law (per Connell J at pp.673-674);
·the usual order remains one of residence to one parent and contact to the other and consequently “a shared residence order is an unusual order to be made in unusual circumstances”; and
·“[i]t must be demonstrated that there is positive benefit to the child concerned for a s 11(4) order to be made, and such positive benefit must be demonstrated in the light of the s 1 checklist” (per Butler-Sloss LJ at pp.677-678).
Butler-Sloss LJ did not agree with May LJ’s use of a test in Re H (A Minor) (Shared Residence) [1994] 12 FLR 717 that suggested that “exceptional circumstances” are a prerequisite for shared residence orders under s 11(4) of the Children Act 1989.
The following passages in Butler-Sloss LJ’s judgment (at pp.677-678) are often cited for the clarity with which they set out issues to be considered in shared residence cases:
"Although we can no longer rely upon the view of a joint custody order in Riley v Riley, the wisdom expressed by May LJ, and reported and cited by Purchas LJ in Re H (A Minor) (Shared Residence) [1994] 12 FLR 717 at p.728, that a child should have one home and the other place of spending time, including overnight, is not the home but a place where visits may regularly and frequently be made, and that competing homes lead to confusion and stress, is likely to be the case in many of the situations which arise in the courts. … [A] shared residence order would, in my view, be unlikely to be made if there were concrete issues still arising between the parties which had not been resolved, such as the amount of contact, whether it should be staying or visiting contact or another issue such as education, which were muddying the waters and which were creating difficulties between the parties which reflected the way in which the children were moving from one parent to the other in the contact period. … If a child, on the other hand, has a settled home with one parent and substantial staying contact with the other parent, which has been settled, long-standing and working well, or if there are future plans for sharing the time of the children between two parents where all the parties agree and where there is no possibility of confusion in the mind of the child as to where the child will be and the circumstances of the child at any time, this may be bearing in mind all the other circumstances, a possible basis for a shared residence order, if it can be demonstrated that there is a positive benefit to the child. It does not mean it will be; it may be."
Although A v A (Minors) (Shared Residence Order) (supra) concerned the making of a “symbolic” shared residence order, it has been applied in cases concerning “substantial” shared residence issues. For example, in B (Minors) [1997] EWCA Civ 2418 (6th October 1997) the Court of Appeal approved of the trial judge’s consideration of Butler-Sloss LJ’s judgment in his decision to refuse to make a joint residence order (split approximately 50/50). The trial judge refused to make the order largely on the basis that the father was responsible for the hostility between the parties and would use a shared residence order “as a peg to interfere at times when the mother had care of the children” (per Cazalet J at para. [28]).
Similarly, in Re: H (Child) [1999] EWCA Civ 1376 (10th May, 1999), the Court of Appeal, which determined that shared residence involving a fairly equal split of the child’s time between the parents would be inappropriate in the circumstances of that case, considered several factors articulated in A v A. The factors considered (at para. [7]) included:
·the wishes and feelings of the children;
·the status quo of shared parenting with the children moving between two homes which had existed for some years;
·“the potential for either parent causing disruption if unhappy with the outcome” of the case;
·the effect of splitting the siblings if the recommendation of the court welfare officer were accepted;
·the difference in the age and needs of the two children;
·the extent to which shared parenting had and would continue to meet the children’s needs;
·each parent’s encouragement of the children’s excellent academic progress;
·each parent’s love of the children and capacity to provide the appropriate level of care;
·the unsatisfactory nature of the mother’s accommodation;
·the unwillingness of the father to alleviate the children’s poverty and environment by seeking the better paid employment which he was capable of obtaining;
·the “level of perception and sensitivity to the children’s needs”; and
·“the degree of cooperation between the parties”.
In the recent matter of D v D (Shared Residence Order) [2001] 1 FLR 495, Butler-Sloss LJ (at para. [39]) clarified the approach that she had taken in A v A:
"Now 9 years [after A v A] with far greater experience of the workings of the Children Act 1989 it is necessary to underline the importance of the flexibility of the Children Act 1989 in s 8 [ie. residence] orders and, consequentially, that the Court of Appeal should not impose restrictions upon the wording of the statute not actually found within the words of the section."
She went on (at para. [41]) to clarify statements that she made on pp.677 and 678 of A v A which referred to a decision about whether to make a shared residence order always being a matter of judicial discretion on the ‘special’ facts of the individual case. She had meant to say on the ‘particular’ facts of the individual case (as the other judge hearing this matter, Hale LJ, suggested Butler-Sloss LJ might have meant when citing her judgment in A v A at para. [29]). Furthermore, Butler-Sloss LJ appeared to have modified her point of view on the significance of finding that a shared residence arrangement would be a “positive benefit” to the child concerned:
"I am not certain that one does have to demonstrate a positive benefit to make a shared residence order. One does have to demonstrate that a shared residence order is in the interest of a child in accordance with s 1 of the Children Act 1989."
Canadian case law
In the Canadian case of Hamlyn v. Hamlyn (1999), 50 R.F.L. (4th) 398 (Nfld. U.F.C.), Cook J ordered that each parent have the care, custody and control of the children on an alternating weekly basis in addition to up to four consecutive weeks during their summer vacation and time with each parent on special occasions. Cook J (at p.401) examined the factors relevant to determining the best interests of the child as delineated in s 31 of the Children’s Law Act R.S.N. 1990, c.C-13. The following factors weighed in favour of ordering shared custody:
"There is strong love and affection between both parents and their two younger daughters. It is also uncontradicted that they are both able to properly parent both children and each is able to provide the children with guidance and education in the necessaries of life. Their plans for the children’s care and upbringing are also more or less equal in that both parents have suitable accommodations and there is no disagreement that both children should be educated in the school which is relatively close to both parents’ homes and accessible via a school bus from both homes (p.401)."
Other factors taken into account by Cook J included:
·the similarity of the accommodations of both parties (p.402);
·the mother’s “marginal advantage at best, insofar as caring for the girls after school [was] concerned” (p.402);
·the likelihood that the children would be able to “maintain their friends in their mother’s neighbourhood as well as forming new friendships in their father’s neighbourhood” (pp.402-403);
·both parents were able to help the children with their homework and had the interest and desire to do so (p.403);
·“by sharing the homework the children [would] have the benefit of input from both parents as well as avoiding the possibility of [the mother] becoming over burdened” (p.403); and
·the two younger children would be able to spend more time with their older sister who lived with the father and whose custody was not in dispute (p.404).
Some corroborative weight was also given to the children’s wish for a shared custody arrangement and the “independent assessment” which recommended shared custody (p.403).
Cook J approved of Green J’s comments in Brushett v. Brushett (1993), 109 Nfld & P.E.I.R. 129 (Nfld. T.D.), in which it was held that, though there is no presumption for or against sole or joint custody,
"[I]f it is in the best interests of the child that he or she continue to receive direction and input from both parents by an arrangement that should be denominated as joint custody, that should be ordered even though one parent opposes the arrangement (Brushett v. Brushett as cited by Cook J in Hamlyn v. Hamlyn at p.402)."
Cook J took similar considerations into account in Smith v. Gale (1999), 49 R.F.L. (4th) 400 (Nfld. U.F.C.) and Puddicombe v. Puddicombe 2000 A.C.W.S.J. LEXIS 54138. In Smith v. Gale he ordered phased-in shared parenting (including shared residence) of an 18 month old child. Significantly, however, there was a “moderate”, but decreasing, degree of conflict between the parents which did not deter Cook J from making the order.
Penner v. Penner (1999), 44 R.F.L. (4th) 294 (Man. Q.B.) was an application by the father to increase care and control of the children from “alternate weekends, alternate Wednesdays and Mondays overnight, with equally shared Christmas and Spring breaks and a number of other “special days”” to a situation in which he would have “considerably more than 50% of the children’s non-school time (p.297).” Little J found that the best interests of the children, including the consideration that contact with each parent should be maximised to the extent that it is consistent with the best interests of the children,[15] would not be served by substantially increasing the father’s care and control of the children (p.299). In reaching this view, Little J emphasised the need to modify periods of care and control in order “to reduce impediments to the parents’ communication” (p.299). The parties had demonstrated “an inability to cooperate or communicate” (p.298). Each parent had claimed that the other had economic motivations (the reduction or increase of child support payments) for seeking time with their children, was “scoring the children’s time” and was “suspicious of the other’s reasons for refusing or requesting time” (p.299).
[15] A consideration necessitated by legislation.
Little J sought to ensure that “changes or refinements [were] as unintrusive as possible, so that by nature or degree neither the children nor the parents [could] interpret [the modified arrangements] as a marked change in either of their roles” (p.299). Accordingly, Little J rejected the father’s application to impose a fixed regime and made orders to reflect the existing arrangement which was flexible and generous to both parties (p.301).
In the recent case of Ness v. Ness (1999), 43 R.F.L. (4th) 363 (B.C. C.A.), the British Columbia Court of Appeal (per Lambert J.A.) refused an application to overturn an order refusing joint custody and joint access in a matter in which the trial judge had held that “there remain[ed] much animosity and unhappiness [between the parties] which impact[ed] on their capacity to communicate, an essential ingredient to an order for joint custody” and on the related ground of the mother’s continued fear of the father against whom she had a restraining order (p.367). Another factor taken into account by the trial judge in refusing the application for joint access was the father’s unilateral action in having “expanded his access without the agreement of the mother” (p.367). Lambert J.A. refrained from interfering with the trial judge’s decision on the basis that the parties did not “have the degree of mutual deference and respect that is necessary for joint custody to create a harmonious situation for the children” (p.369).
In an annotation to Ness v. Ness, James G. McLeod attempts to situate the case in the history of joint custody cases in Canada. He is critical of the approach in Ness v. Ness, identifying it with an approach to shared residence that he thought (and hoped) had become less popular:
"In Ness v. Ness the British Columbia Court of Appeal confirms that courts are unlikely to award joint custody in the absence of clear proof that the parties are able to co-operate at least with respect to their children’s needs. Lambert J.A. noted that both parents loved the children and were committed to the children. That both parents had the children’s best interests at heart was insufficient to justify an order for custody … Lambert J.A. stated that the parents did not have the degree of mutual deference and respect that is necessary for joint custody to create a harmonious situation for the children.
The British Columbia Court of Appeal appears to have adopted a restrictive view of when a court should award custody. Increasingly, lower courts have awarded joint custody if both parents had the children’s interests at heart and could, if ordered, co-operate to promote the children’s best interests. With respect, the court’s attitude towards joint custody seems regressive and a resurrection of the position adopted by the Ontario Court of Appeal in Kruger v. Kruger (1979), 25 O.R. (2d) 673, 11 R.F.L. (2d) 52, 2 Fam. L. Rev. 197, 104 D.L.R. (3d) 481 and Baker v. Baker (1979), 23 O.R. (2d) 391, 2 Fam L. Rev., 69, 8 R.F.L. (2d) 236, 95 D.L.R. (3d) 529 that joint custody is an exceptional order that should be awarded only where it is practically unnecessary. That people stop being spouses does not mean that they stop being parents. A parent should be allowed to continue to participate in parenting decisions as long as he or she has the child’s best interests at heart and is willing to try to co-operate with the other parent in promoting the best interests of the child.[16]
[16] McLeod, James G., “Annotation” in (1999), 43 R.F.L. (4th) at p.366.
One of the lower court cases that distinguished Kruger v. Kruger prior to the Ness v. Ness decision was Tacit v. Drost (1998), 43 R.F.L. (4th) 242 (Ont. Gen. Div.). Manton J distinguished Kruger v. Kruger on the basis that the parties in this case had always enjoyed a good relationship with the children and, though the mother’s actions had created acrimony between the parties, the father would cooperate with the mother and the parents’ relationships with the children did not seem to be affected by the acrimony (p.248). Manton J added that “the Kruger decision is more than 20 years old and … has not been followed by lower courts in several decisions” (p.248). He cited Teigler v. Santiago (1984), 7 F.L.R.R. 86 (Ont. C.A.) (upheld by the Court of Appeal of Ontario) in which joint custody was ordered in a situation in which the child was “doing well in every way” despite her quarrelling parents (pp.248-249).
Factors that Manton J considered when making orders upholding the status quo whereby the children lived each parent for a substantial amount of time, included:
·the children were raised by both parents in the Protestant faith;
·the children were healthy and did not have problems at school;
·both parents loved and were loved by their children;
·both parents were available for and treasured their time with the children;
·both parents were actively involved in the health and education of the children;
·both parents “cooperate[d] in the school activities by being in contact with the teachers and attending field trips, helping the children with their homework”; and
·both parents were caring and involved (p.249).
In the recent British Columbia Supreme Court case of MacDonald v. MacDonald 2001 A.C.W.S.J. LEXIS 1164, Macaulay J noted that Ness v. Ness did not refer to the earlier decision of the British Columbia Court of Appeal in Robinson v. Filyk (1996), 28 B.C.L.R. (3d) 21 (C.A.) in which the significance of good communication between parents in determining the appropriateness of joint custody was discussed (at para. [14]). In MacDonald v. MacDonald and another British Columbia Supreme Court case, Larden v. Larden 2001 A.C.W.S.J LEXIS 2896, both cases in which joint custody was at issue, Macaulay J cited Robinson v. Filyk in which Huddart J.A. suggested “the inquiry into a child’s particular circumstances mandated by s. 16 of the Divorce Act, as interpreted and affirmed by [the Supreme Court of Canada] in Gordon v. Goertz, [1996] 2 S.C.R. 27, requires that a care arrangement be tailored for each child” and that “[s]uch an inquiry must not be commenced with a mindset favouring either joint or sole custody” (para. [15]).
Gordon v. Goertz is Canadian authority for the proposition that presumptions do not apply in determining what is in the best interests of the child. An analysis of a care arrangement tailored to each child is required. This aspect of Gordon v. Goertz was cited with approval by the Full Court of the Family Court of Australia in B and B (Family Law Reform Act 1995) (supra).[17]
[17] B and B Paragraph 9.59: “The analysis by McLachlin J in Gordon v Goertz, supra, is compelling. The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children’s best interests to legal issues relating to burdens of proof. The task is not “to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary”.”
Of particular interest are the following passages of Robinson v. Filyk as cited by Macaulay J:
"The only reason to review that order is the acceptance by the trial judge of what he called the “cautious” approach of [Baker v. Baker (1979), 8 R.F.L. (2d) 236 (Ont. C.A.) and Kruger v. Kruger (1979), 11 R.F.L. (2d) 52 (Ont. C.A.)] that suggests a threshold test before a joint custody order will be made. … Even were I persuaded that the trial judge brought a mindset with pre-ordained default arrangements to the enquiry, I would not interfere with a sole custody order in the circumstances of the case. The evidence supports the trial judge’s conclusion that joint decision-making by these parents would not be workable. … It is now clear that legal and factual presumptions have no place in an enquiry into the best interests of the child, however much predictive value they may have. The Supreme Court of Canada has stated absolutely clearly that such presumptions detract from the individual justice to which every child is entitled (part of an extract from Robinson v. Filyk cited by Macaulay J in MacDonald v. MacDonald at para. [16]).
The distinction between physical custody and decision-making authority, which is a little difficult to discern in some of the Canadian judgments referred to above, is highlighted in Reimer v. Appa 2001 Ont. Sup. C.J. LEXIS 664. In that matter, Madame Justice J.A. Blishen discussed Kruger v. Kruger and cited a number of recent cases that have departed from the view that joint custody is inappropriate in custody disputes in which the parties are not in agreement. She determined that, on the facts of the case before her, it would be appropriate to share joint physical custody (ie. residence) relatively equally, though orders for joint decision-making would not be appropriate. Factors working in favour of orders for joint physical custody included:
·other than the negative impact of the litigation on the child, she had been “doing well at home, at the school and in the community under the shared physical custody arrangement”;
·both parents were “able to provide for [the child’s] physical, mental and emotional needs on a day-to-day basis”;
·both parents had considerable resources and talents which could benefit the child; and
·it was the battling and conflict over custody that had undermined those benefits – and it had to end immediately (at para. [32]).
Factors working against orders for joint decision-making authority included:
·the mother’s “attitude and ability or unwillingness to compromise on even the most minor issues is significant” and
·the likelihood that the mother would be unable to reach a reasonable compromise on “major issues such as health, education and religion” (at paras [35]-[36]).
Relevant law
Residence and contact orders are parenting orders. The applicable law is well settled. Proceedings of this type are conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant section 68F(2) factors are to be examined and ultimately weighed. The importance of section 60B factors varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act.
Although not binding authority, the Australian pre-Family Law Reform Act cases give useful guidance to those factual matters that a court adjudicating a 50/50 shared parenting application pursuant to the current legislation should consider. There is a core consistency found between the English and Canadian authorities. These countries share a similar jurisprudence in the adjudication of private family law disputes with Australia. This commonality is apparent in a number of respects. All jurisdictions implement a paramountcy principle. Although its statutory formulation may differ slightly, the essential premise is the same. That is, the best interest of the particular child is the paramount or primary consideration. There are no presumptions that override the court's obligation to promote the child's best interests. Individual justice is fundamental and hence the exercise of judicial discretion critical. Nowhere is it more apparent that Australian courts exercising jurisdiction under the Family Law Act can look to Canada and England for guidance in the interpretation and application of Australian law than in B and B: Family Law Reform Act (supra). In that matter the Full Court of the Family Court of Australia addressed the impact of the Family Law Reform Act1995 upon the principles to be applied in parenting cases under Part VII of the Family Law Act1975. In doing so they reviewed the English and Canadian authorities.
Although there are consistencies in the applicable family laws between these countries, there are differences that cannot be overlooked. The English law gives the person who has a residence order the authority to manage the child’s daily life. In Australia, that arises pursuant to a specific issues order. An order for residence will do no more than determine with whom a child will live. The English law also places greater emphasis on minimising judicial intervention in parenting cases. As John Dewar has explained: “there is an explicit direction to the courts [in the Children Act 1989 (UK) s1(5)] that they should only make an order if it can be shown that to do so would be better for the child than making no order at all (the ‘presumption of no order’).”[18] One major respect in which the Canadian law differs from the Australian and English law is that the language of custody, guardianship and access have not been replaced with that of parental responsibility, residence and contact as they have in both the Children’s Law Act 1989 (UK) the Family Law Reform Act1995 (Cth) (though the concepts associated with these terms in Australian law are, as suggested above, not identical to the English concepts).[19] In Canada, decision-making authority is part and parcel of any order for custody. As noted above, in Australia, an order for residence (physical custody) will do no more than determine with whom a child will live. Furthermore, the Canadian legislation requires its courts to maximise the time a child spends with both its parents.[20] It is not surprising that the Canadian case law is replete with judicial analysis of factual indicia that work in favour or against equal shared residence orders (joint physical custody). The maximisation provision is, of course, not absolute. It will be restricted to the extent that it conflicts with the best interests of the child.[21]
[18] John Dewar, “The Family Law Reform Act 1995 (Cth) and the Children Act 1989 (UK) Compared‑Twins or Distant Cousins?” Australian Journal of Family Law (1986) Vol.10(1) 18-35 at 20.
[19] See Brenda Cossman and Roxanne Mykitiuk, “Reforming Child Custody and Access Law in Canada: A Discussion Paper” Revue Canadienne de Droit Familial (1998) Vol. 15 at 13-78.
[20] Divorce Act s16(10). It is interesting to note that in B and B (Family Law Reform Act 1995) (1997) FLC 92-755, the Full Court stated (at para. 7.58) that the Canadian maximisation of contact provision has “obvious similarities to the terms of ss. 60B(2)(b) and 68F(2)(d)” of the Family Law Act 1975 (Cth). The Full Court also stated (at para. 9.60 ‑ my emphasis): “In cases where there are no countervailing factors the s.60B principles may be decisive, not only because they are contained in s.60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.”
[21] See, for example, Young v. Young [1993] 4 S.C.R. 3 and Madame Justice Lachlin’s judgment in the Supreme Court of Canada case of Gordon v. Goertz (1996) 134 DLR (4th) as cited by the Full Court of the Family Court of Australia in B and B (Family Law Reform Act 1995) (1997) FLC 92-755 at para. 7.67.
The factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child's welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
·Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child's wishes and the factors that influence those wishes.
·Where siblings live.
Section 68F(2) – Determining the best interests of the children
The children’s wishes
Both parents claim that the children wish to live with them and not the other party.
The mother alleges that both are often in tears at the end of contact with her because they do not wish to return to the father. During April, May and June 2001 H in particular has said to her, “I want to be with you Mum”. Although unable to recall his words precisely she says A has also said that he wants to live with her. I do not accept her evidence. The mother’s affidavit evidence exaggerated important factual matters. For example she alleged that after the father became aware of her relationship with Mr A, "I experienced extreme difficulty in seeing the children"[22]. And "at times I was not permitted to see the children for months on end and then I would be allowed short periods of contact".[23] During cross-examination she agreed that she had in fact seen the children regularly. I am satisfied that she attempted to mislead the court in relation to the children's relationship with the father and the difficulties associated with her contact. In spite of the fact that the children were guarded with the court counsellor, had the children been as upset as the mother alleges I am satisfied that there would have been some sign during the interviews or observation sessions that would at least have hinted that this was so. There was nothing that corroborated the mother's evidence. Its absence undermines her credibility on this issue.
[22] Affidavit sworn 12 June 2001 Paragraph 11
[23] Affidavit sworn 12 June 2001 Paragraph 11
Similarly, the father alleges that both children are sometimes oppositional about spending time with the mother. The children complain that contact disrupts activities they enjoy and they tell him they wish to stay with him rather than spend time with their mother. In this regard context is important. This has arisen when the children have been engaged in other activities. That the father has had no difficulty making contact happen indicates that the opposition is more likely to be a disinclination to disrupt an activity for any reason. It indicates nothing meaningful about the children's wishes concerning their mother.
The mother is concerned that the paternal grandmother is too old to be significantly involved in the day to day care of the children. This is exacerbated by her care of another grandchild. She considers that R is too young and does not accept that the father will compliment their care of the children. It is apparent that in their father's environment that they have and will continue to be well cared for.
The father was as critical of the mother’s capacity to meet the children’s needs as she was of his. The only difference is the examples given about the deficiencies in her parenting. He alleged:
·That she did not and never had cared about the children;
·That she is not a fit mother;
·She does not know how to raise children;
·She does not have the patience to raise children.
·He could offer the children greater financial security.
·Because he does not smoke or go out socially he can offer the boys a good example.
The mother has a great commitment to the children. She has the capacity to attend to their needs and the desire to do so. The suggestion that she does care about the children and never has is offensive to her. Like the other allegations made it is without foundation. Subject only to matters arising from the poisonous parental relationship I am satisfied that, like the father, she has the capacity to meet the children's needs.
Curiously, neither party criticised the other party in any significant way for their refusal to communicate directly on matters concerning the children. That is because both are comfortable with this situation. The mother emphatically reinforced her desire to have nothing to do with the father. Saying, “I really have nothing to do with my ex-husband and I don’t want to”. Although he didn’t the use words, his sentiment towards communication with the mother was identical. The parties both had the opportunity to consider the family report prior to giving evidence. That report emphasised the strain that both children, but H in particular, feel because of the parental conflict and inability to communicate. Graphically, the court counsellor summarised the effect on the children as, “They are prisoners of the fact of their parent’s non-communication”. H’s emotional and psychological wellbeing is being particularly undermined because, as the elder child, he is more involved as a go-between between his parents. The counsellor described H as "literally losing his mind." This does not mean that the child is suffering a mental illness. Rather that increasingly the child is unable to form and articulate his own views. Sadly, the parties gave no indication that they understood the import for H if they continue to use him as their communication conduit. Although for any child that position is a difficult one, for these children the difficulty is increased because the messages are passing between parents who are openly hostile towards the other.
In spite of the mother’s criticisms, in the father’s primary care both children are performing adequately academically. The father is aware that H has faltered this year and will encourage his son academically. He has the capacity to do so. In his primary care the children enjoy local friendships and play soccer. They attend an Islamic school which compliments their knowledge and understanding of their religion. They are fluent in English and Arabic. The children are obviously healthy and competently cared for. I am satisfied that in the father’s environment the children have and will continue to be adequately cared for.
The children’s maturity sex and background and other characteristics
The children enjoy a rich cultural life, sharing in their family’s Lebanese heritage and life in Australia. Both parents are able to continue to promote the children's enjoyment of the two cultures. To the extent that the father alleged that boys should live with their father I reject the submission. The capacity to parent is gender neutral. Both parents have the capacity to manage the children through puberty.
Although H would benefit from focussing more on his school work, the evidence indicates that both children have reached age appropriate maturity. Because of the hostile parental relationship and their involvement in it, the children are less able to make mature decisions about matters that concern their parents. They enjoy their computer games and sport. The children are demonstrably well mannered and well behaved. This indicates that when given the chance they behave responsibly.
The need to protect the children from physical or psychological harm caused by abuse, ill treatment, violence or other behaviour
These children have not been physically abused. I have already made findings about the effect of the parents’ open hostility towards each other upon the children. The effect has been emotionally damaging to both children. Should the parties continue to use the children as a go-between the long term consequences for the children are very concerning. Almost inevitably the children’s emotional well being will be damaged and their capacity to form loving and trusting relationships as adults will be undermined. In this respect, the parties’ behaviour has been emotionally abusive of the children.
Both parents are intelligent and deeply committed to their children’s success in life. Before it is too late for their children, they should explore ways to communicate about matters concerning the children’s welfare. The evidence does not enable me to be satisfied that either or both has any desire to do so. This finding has significant consequences in relation to the residence application. To a very considerable degree children require their parents to provide an orderly structure in their lives. They need guidance to ensure that homework is done, clothes ready for school, clothes ready for sport, library books collected and return, notes from school responded to, to identify but a few. Their sense of security comes in no small part from stable living arrangements. Whilst these matters can be attended to when living in two homes, the degree of organisation required by the adults and children to smoothly implement daily events shared between two homes on a week about basis increases substantially. When parents are unable to communicate at all, these matters will either be arranged by the children themselves or will be unaddressed. Neither outcome is satisfactory. The evidence does not suggest these children are so highly organised that homework or clothes will never be left behind, for example or medical appointments maintained. The equal sharing of time proposed by the mother in the circumstances of this case is fertile ground for open displays of hostility between the parents. Every mishap will create an opportunity for one parent to criticise the other. It is highly likely that one or other of the children will be used to relay the criticism. Not only is this an untenable outcome for the children in terms of providing an orderly structure to their lives it will be psychologically damaging to them.
Although I am satisfied that the parents cannot cooperate such that a 50-50 shared parenting could succeed their psychological and emotional wellbeing requires that they enjoy considerable time with both parents. The orders must be structured to minimise the opportunity for disputation between the parents.
The attitude to the children and the responsibilities of parenting
I have already made findings relevant to this subsection and do not repeat them. Responsible parenting demands that parents facilitate their children’s relationship with the other parent. The mother forcefully criticised the father’s attitude to the children’s relationship with her. This is because he has not permitted contact to the extent she desired. Although he denied that she wanted regular weekend contact before November 2000, I am satisfied that she did want it. He knew this was the case. His refusal to permit regular overnight weekend and school holiday contact until presented with the mother’s residence application reflects poorly upon him. There is no valid reason why the mother and children could not have enjoyed regular school holiday and alternate weekend contact before 2001. Although he did not facilitate this form of contact, the children did enjoy very extensive contact with their mother. As a consequence although they have lived separated from her for four years they have a warm and loving relationship with her.
So too, when the children were in the mother’s care she facilitated extensive contact between them and the father. She makes a modest commitment to child support, presumably one that accords with the child support formula. Her criticism of the children’s clothing is disingenuous when analysed by reference to the child support payments made by her. Forty two dollars and fifty cents a week for two boys is a small contribution indeed.
Any family violence involving the children or members of the children’s family
As I have already found I am satisfied that the father assaulted the mother when he became aware of her relationship with Mr A. Mr A corroborated the mother’s allegation that the father used offensive language to her. He had listened to voicemail messages left for her by the father. He speaks Arabic and confirmed that the father used language to the mother which included the worst possible insult that an Islamic man can use to describe a woman.
The mother alleges that prior to separation she was assaulted by the father and that after separation he stalked her. He denies her allegations. It is the nature of family violence that it is often hidden and there are no witnesses to its occurrence. Thus it is important that details of the alleged violence are recounted with specificity. This can assist in adjudicating disputed allegations. Here the court does not have sufficient evidence, in the face of the father’s denials, that would enable it to make findings about the general allegations made by the mother concerning family violence. Both parties gave evidence on a number of issues that was internally inconsistent and contradictory. In many respects they were unreliable witnesses as to factual matters. Hence this is not a matter in which it would be appropriate to make general findings as to credit.
There are no allegations by the mother that the father has been violent towards her or stalked her during the last twelve months. I am satisfied that there is no continuing risk of family violence to the mother.
Any family violence order
There are no current violence orders
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
Parenting orders are never final in the sense that children's and their parent circumstances change and arrangements may need to alter as a consequence of those changes. Ideally, courts should make parenting orders that minimise the prospect for future disputation. Litigation is costly in emotional and financial terms and has the effect of standing in the way of parties to a failed marriage moving on with their life. It can undermine their capacity to parent to the fullest extent of their ability. Five years after their separation, these parties are extraordinarily hostile to each other. Further litigation will keep that hostility at the forefront and undermine such capacity as these parties may have to let the unhappy past go. To the greatest extent possible I am satisfied that the court should make orders that will be least likely to involve these parties and children in future litigation.
I will order that the parties have joint responsibility for the children’s long term care, welfare and development. The parties agree that the children will continue to attend their current school and be reared according to the rights of Islam. Potentially they will disagree on matters concerning the children’s health and remedial education needs that the children may or may not need. Issues concerning their day to day health can be addressed pursuant to the order that gives each parent responsibility for making such decisions on a day to day basis. However, because the children will be living more substantially with their father, when she comes to make decisions with the father concerning the children’s long term care, welfare and development, the mother must take that reality into account. Ultimately, if these parties cannot agree then the particular issue must be adjudicated by a court. At the same time there is a possibility that the court would discharge the joint long term responsibility order. In spite of the prospect of further litigation on this issue, I am satisfied that the children should be given the opportunity for their parents to make these decisions jointly.
Any other relevant fact or circumstance
Lebanon is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Thus the intercountry arrangements for the return of children wrongfully retained in a signatory country do not apply in this matter.[25] Although A has previously travelled to Lebanon with his grandmother for a holiday and returned to Australia without any difficulty, the mother opposes H’s planned trip. Culturally the father sees great advantages for H in making the journey to Lebanon. There are obvious cultural advantages. Not only will he be exposed to his Lebanese culture in its purest form he would also be able to spend time with members of his extended family. He has a sufficient relationship with the relatives with whom he would stay that he should enjoy the trip. Because he is not travelling with a close family member he would probably be homesick on occasions. That would probably pass with the excitement of the whole holiday.
[25] Line and Line (1997) FLC 92-729
I am satisfied that the father has no intention of leaving H in Lebanon. His intention is that the child travels for four weeks during the school holidays and returns to start the 2002 school year. To the best of his ability, I am satisfied that the father would give effect to this stated aim. He is strongly committed to his son’s welfare and loves him dearly. The father lives in Australia and has strong family ties to this country. I am not satisfied that he would abandon all that he has established in Australia to return to live in Lebanon. In any event, the court could order that he remain in Australia as partial security for the child's return. There is no proper basis to the mother’s allegation that the father will leave the child in Lebanon.
There are two matters that influence the decision against ordering in favour of H’s journey to Lebanon. Firstly, the arrangements made by the father are inadequate for a 12 year old boy. H has not travelled internationally before and he does not have the capacity to comfortably manage international air travel which requires possible breaks in his journey at Singapore and Dubai. His age and level of experience is such that he needs to be accompanied by an adult the entire journey. Were M able to travel the entire journey with him, even if he were working as a steward on the flight, those arrangements would meet the child’s needs during the trip. Secondly, I take into the account the international travel climate subsequent to the terrorist attacks of 11 September 2001. On the final day of the hearing, the United States of America launched its war on terrorism, attacking Afghanistan. During the weekend prior to the conclusion of the hearing, there was cross border shelling between Israel and Pakistan. This is a time of international uncertainty. Many travellers have deferred plans for international travel until the world’s reaction to the terrible events of 11 September 2001 have settled. There is no imperative that H travel to Lebanon in the forthcoming Christmas school holidays. In the absence of any urgent reason relevant to his immediate welfare requiring a trip to Lebanon, I am satisfied that I should err on the side of caution and refuse the father authority to send the child to Lebanon. To order otherwise would place intolerable anxiety on the mother unnecessarily. This order is an order that is defined by the best interests of the child in accordance with sections 65E and 68F(2) of the Family Law Act. Because the issue is such a significant one between the parties I will order pursuant to section 68B that an injunction be made to ensure compliance with it.
Conclusion
These children have a well settled environment that has met their physical and intellectual needs for four years. Both parents undermine their emotional security by their open hostility towards each other. The arrangements were established at the behest of the mother and agreed to with alacrity by the father. Whilst relinquishing the care of the children to the father was a decision made by the mother with a heavy heart, the arrangement was made by her with her knowledge and consent. Although she regrets the decision deeply, her regret and change of circumstances are not alone sufficient justification to make the orders sought by her.
The children are settled and apparently secure. They are immersed in their Lebanese and Australian culture. Both are fluent in English and Arabic and fully participate in Islam. In their father’s care they have maintained close relationships with their extended family. Both children are deeply attached to their paternal grandmother and her involvement in their lives is fundamentally important to their welfare.
Changing the children’s circumstances as the mother proposes will be fundamentally disruptive for them. In the short term they will see considerably less of their paternal grandmother and father. Equally concerning, the arrangements proposed by the mother are arrangements that require the parents to be able to communicate with each other. This is important so that all the practical difficulties associated with living between two homes can be comfortably addressed. Unless the parents can communicate it will be the children’s responsibility to organise themselves so that they manage without faltering attendance at doctor’s appointments, sporting and social events. These boys do not have those superior organisation skills.
Five years of continuous bickering and open hostility between these parties indicates that they do not have the ability to communicate nor to cooperate with each other. Their evidence is that they do not wish to do so in the future. I am satisfied that they cannot and will not communicate cooperatively in the future. This finding is essential to my conclusion that an outcome that divides the children’s time equally between the two parents will place the children at the centre of their parents’ conflict. This will be emotionally and psychologically damaging for them, both in the short term and the long term.
It is an inadequate response to the level of conflict that the parties agree on matters concerning religion and style of education. There are too many matters that arise on a daily basis which require parental guidance and intervention on the child’s behalf.
These children are entitled to a meaningful relationship with both their parents. Their relationship with the mother is strong and important to their emotional well being and psychological adjustment. Contact that is exercised for short periods and artificially constrained during holidays will not allow the mother and children to sufficiently immerse themselves in one another's lives with all the benefits that can flow from this. Delivering the children to school, should she ever be able to arrange this, will give the mother the opportunity for spontaneous interaction with the children's teachers and friends. Although the mother can only take 4 weeks annual leave the children should spend half of the holidays with her. If she is at work either her husband or parents will be available to care for the children. These extended family relationships are important and this is an obvious way to promote them. Ordering the children to live with the mother as extensively will be ordered will not damage in any way the children's relationship with the father or members of his family. Those are strong relationships that can easily withstand such periods apart.
Although the time the children will spend with the mother is extensive it will not of necessity require the sophisticated level of communication from the parents that an equal sharing of the children's time would need. There are essential differences between the two possible outcomes. The orders made will enable the children to continue to live in one home. During the school week they will live in the one home other than one night in two school weeks. Their possessions will be largely managed from the one base. Because of the structure of the orders they will not need to take many items between the parent’s homes.
These orders are orders that I am satisfied are in the children's best interests. For these reasons I make the orders identified at the commencement of this judgment.
I certify that the preceding one hundred and fifty-one (150) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 30 November 2001
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