Tapp and Tapp
[2010] FMCAfam 121
•19 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAPP & TAPP | [2010] FMCAfam 121 |
| FAMILY LAW – Parenting – whether equal time in children’s best interests when parents in conflicted relationship – found parents’ relationship not “highly conflicted” – the children have a close relationship with both parents and have lived in a “shared care” arrangement for some time – the parties live proximate to each other – order made for the children to spend equal time with each parent. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| T & N [2001] FMCAfam 222 C v O’N [2003] FMCAfam 154 Astor & Astor [2007] FamCA 355 |
| Applicant: | MS TAPP |
| Respondent: | MR TAPP |
| File Number: | MLC 11322 of 2007 |
| Judgment of: | Bender FM |
| Hearing dates: | 10, 11 & 12 February 2010 |
| Date of Last Submission: | 12 February 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Pearsons Barristers & Solicitors |
| Counsel for the Respondent: | Ms Dellidis |
| Solicitors for the Respondent: | Stynes Dixon Lawyers |
ORDERS
All previous parenting orders be dismissed.
The parties have equal shared parental responsibility for their children [X] and [Y] both born [in] 2003 (“[X]” and “[Y]”).
The husband and wife have sole responsibility for making decisions regarding the day-to-day care, welfare and development for [X] and [Y] when they are in their care.
Subject to order 7 herein, [X] and [Y] live with the husband as follows:
(a)during school term:
(i)Week One: from after school Wednesday until the commencement of school Monday; and
(ii)Week Two: from after school Wednesday until the commencement of school Friday;
(b)for half of the school term holidays, which in 2010 and each alternate year thereafter shall be the first half, and in 2011 and each alternate year thereafter shall be the second half. For the purpose of these orders, the first half of the school term holiday periods commence at the conclusion of the last day of the school term and conclude at 10.00am on the day in the middle of the school term holidays and the second half of the school term holidays commence at 10.00am on the middle day of the school term holiday period and conclude at the commencement of the first day of [X] and [Y]’s next school term.
(c)during the long summer vacation:
(i)2010/2011 and each alternate long summer vacation thereafter:
A.from 10.00am on 17 December until 10.00am on 27 December;
B.
from 10.00am on 3 January until 10.00am on
10 January; then alternating weekly with changeovers to occur at 10.00am on each seventh day thereafter until the conclusion of the long summer vacation;
(ii)2011/2012 and each alternate long summer vacation thereafter:
A.from the conclusion of the last day of the school year until 10.00am on 17 December; and
B.
from 10.00am on 27 December until 10.00am on
3 January; then alternating weekly with changeovers to occur at 10.00am on each seventh day thereafter until the conclusion of the long summer vacation; and
(d)as otherwise agreed between the parties.
The living arrangements for [X] and [Y] pursuant to order 4(a)(i) herein shall commence and be reset on the first week of each school term.
Subject to order 7 herein, at all other times [X] and [Y] shall live with the wife.
[X] and [Y] shall live with their parents as follows:
(a)each alternate Easter commencing with the husband in 2010. Easter shall commence from the conclusion of school on Easter Thursday until the commencement of school Easter Tuesday. In the event Easter falls on the middle weekend of the first school term holiday, the parent with whom [X] and [Y] are to live with for Easter will have [X] and [Y] live with them from the conclusion of school at the end of term until 10.00am Easter Tuesday;
(b)if a public holiday falls on a Monday, then [X] and [Y] will remain living with the parent with whom they are living on the weekend preceding the public holiday until the commencement of school on Tuesday;
(c)if not already living with the husband, then with the husband from 10.00am Father’s Day until the commencement of school the following day;
(d)if not already living with the wife, then with the wife from 10.00am Mother’s Day until the commencement of school the following day;
(e)on [X] and [Y]’s birthday they shall remain living with the parent with whom they are living pursuant to these orders but shall spend time with the other parent from the conclusion of school until 5.30pm if a school day and from 10.00am until 2.00pm if a non-school day; and
(f)on each of the parent’s birthdays, if not already living with the parent who is having the birthday then with that parent from the conclusion of school until the commencement of school the next day if a school day or from 10.00am on the parent’s birthday until 10.00am the following day if a non-school day.
All changeovers that do not occur at [X] and [Y]’s school shall be facilitated by the husband collecting [X] and [Y] from the wife’s residence at the commencement of the periods of time that [X] and [Y] live with him and the wife collecting [X] and [Y] from the husband’s residence at the conclusion thereof, or as otherwise agreed between the parties.
Both parties are at liberty to arrange for [X] and [Y] to be collected from school or the other’s home by an adult third party who is known to [X] and [Y].
[X] and [Y] be at liberty to communicate with their mother and father by mobile and/or landline telephone, email or by any other means at all reasonable times, and both parties will ensure that [X] and [Y] have ready access to, and shall meet the expense of these services at all times whilst [X] and [Y] are in their care.
Both parties be and are hereby restrained from listening in to, or interfering with in any way, the communication between [X] and/or [Y] and the other party.
For the purpose of order 9 herein, both parties shall ensure they advise the other of their current landline telephone number and notify the other in writing of any change of such telephone number seven days prior to any change to that telephone number.
Each party shall advise the other of any serious illness or injury suffered by either of [X] and [Y] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Each party is free to be fully involved in the school lives of [X] and [Y], to receive copies of school reports, school newsletters, school photograph order forms and the like and to attend all parent/teacher interviews, events and functions to which parents are normally invited.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X] and [Y] or any of them, and from permitting any other person so to do.
By Consent
The wife shall lodge within 14 days the signed applications for the children’s passports, delivered to her this day.
In the event the said applications are rejected, each of the husband and wife forthwith attend to any requisition made to successfully complete the application.
Immediately upon receipt of the children’s passports, the wife shall notify in writing (including SMS) the husband of such receipt.
Pending the processing of the applications, and within seven days, at equal expense, each party attend at a bank agreed between them and open a safety deposit box in their joint names requiring both parties’ signature for its operation including photographic identification.
The parties shall place the passports in the said deposit box within three days of their receipt by the wife.
Should either party wish to access the passports or either of them, they shall provide to the other party full details of their reason for same, including any proposed travel itinerary, flight details, accommodation, contact details and relevant dates.
Neither party shall unreasonably withhold their consent to the release of the passports, and shall provide their response within 14 days.
The passports or either of them shall be returned to the deposit box immediately following their use and no longer than 24 hours of access being available.
The husband and wife each be and are hereby restrained from removing the children or either of them from [W] School without the written consent of the other.
The parties shall each do all things required to renew the children’s passports upon expiration, loss or destruction within 14 days of a request by the other.
IT IS NOTED that publication of this judgment under the pseudonym Tapp & Tapp is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 11322 of 2007
| MS TAPP |
Applicant
And
| MR TAPP |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter sees a continuation of the ongoing litigation these parties have engaged in since their separation in April 2007.
The issues before the court on this occasion relate to the living arrangements for the parties’ twin children, [X] and [Y] both born [in] 2003 (“[X]” and “[Y]”), now aged six and a half years.
On 2 July 2008, the parties entered into very detailed consent orders (“the orders”) which provided for [X] and [Y] to live with the husband during school term from the date of the orders to the conclusion of school in 2008 in week one from after school Thursday to 7.00 pm Sunday and in week two from after school Thursday to before school Friday. The orders then provided that from the beginning of the school year in 2009 the children live with the husband in week one from after school Wednesday to 7.00 pm Sunday and in week two from after school Wednesday to before school Friday. Otherwise the orders provided for the children to live with the wife. The order also made provision for holidays and special days.
Notations C and D of the orders provided as follows:
C.That the Orders are to be reviewed by the parties in 2010, at which time it is intended that the children will live with each party on week about basis from the commencement of the first school term in 2010 onwards (children will be 6 years and 5 months) as follows:
C.1Each alternate week from after school Monday until the commencement of school the following Monday, with the relevant party to collect and deliver the children to and from school.
D.That from 2010, the children are to spend up to two occasions per week with the other parent (with who the children are not living at the time) for a period of no more than 3 hours on each occasion, at times as may be agreed between the parties, and no later than 7:00 pm return.
On 1 October 2008, the wife filed an Application seeking the orders of 2 July 2008 be dismissed and the children spend time with the husband three nights per fortnight during school term. At the commencement of the hearing of the matter, the wife clarified that she was seeking orders that [X] and [Y] live with the husband in week one from after school Friday to before school Monday, in week two from after school Wednesday to before school Friday and otherwise that they live with her. She sought no alterations to the arrangements for holidays and special days that are contained in the 2 July 2008 orders.
The wife also seeks an order that in the event either of the parties are unavailable to personally care for the children for in excess of 24 hours whilst they are living with that parent, the other parent shall care for the children.
The husband is seeking that [X] and [Y] live with him seven nights in each fortnight and that this be achieved by ‘tweaking’ the existing arrangements so that his time in week one be extended from 7.00 pm Sunday to before school Monday. He opposes the wife’s application in relation to the other parent being the carer in the event the other is unavailable to care for the children in excess of 24 hours.
The parties were in agreement that whatever orders were made by me, [X] and [Y]’s time with the husband in week one would conclude with him delivering them to school Monday morning.
Background
The wife was born [in] 1970 and is 39 years of age. She is employed as an administrator on a part-time basis at [W] School.
The husband was born [in] 1959 and is 50 years of age. He is self-employed with his own business.
The parties commenced co-habitation in 2001, married [in] 2004 and separated on 12 April 2007. Between April 2008 and June 2008 they attempted a reconciliation but did not cohabitate. The parties finally separated in June 2008.
Since their initial separation in April 2007, the parties have been engaged in almost continual litigation and there appears to be no end to their litigation in the foreseeable future. A brief summary of this litigation is set out below:
13 April 2007: Wife applies for an intervention order against the husband;
16 April 2007: Wife obtains interim intervention order;
17 April 2007: Husband applies for an intervention order against the wife;
4 May 2007:Husband gives an undertaking
30 July 2007: Mutual intervention orders made between the parties by consent and without admissions;
12 October 2007: Husband files application for children’s orders in the Federal Magistrates Court;
30 October 2007: Wife files response to husband’s application in the Federal Magistrates Court seeking orders both in respect to children and property matters;
31 October 2007 & 21 November 2007:
Interim consent orders made in relation to [X] and [Y] where Federal Magistrate Hartnett determined [X] and [Y] were to commence pre-school at [W] School and otherwise interim consent orders made in relation to the living arrangements for [X] and [Y], as well as making final property orders and a child support departure order;
24 June 2008: Parties enter into Child Support Agreement;
2 July 2008: Final children’s orders made in chambers;
21 July 2008: Wife obtains an extension of the intervention order against the husband to July 2009;
1 October 2008: Wife files an application to dismiss the 2 July 2008 orders;
15 October 2008: Application for breach of intervention order by husband;
19 November 2008: Wife files contravention application;
12 January 2009: Husband placed on division program for breach of intervention order;
13 January 2009: Wife’s contravention application dismissed by consent;
14 May 2009: Husband seeks intervention order against wife arising from incident between parties on 13 May 2009;
1 June 2009: Wife makes complaint to police in relation to the
13 May 2009 incident;
28 July 2009: Husband files an Application in a Case in relation to the children’s passports and a proposed trip to New Zealand;
13 August 2009: Wife files Response to Application in a Case opposing the husband’s trip;
17 August 2009: Federal Magistrate Bender dismisses the husband’s Application in a Case;
6 October 2009: Contested hearing of the husband’s intervention order application. Intervention Order ordered in husband’s favour against the wife;
3 December 2009: Wife’s Child Support Assessment Review determined (unable to ascertain when review process commenced);
31 December 2009: Child Support Assessment Agreement expires;
10, 11 and 12 February 2010: Final hearing of wife’s application.
At the final hearing, the court was advised:
· Criminal proceedings against the husband in relation to the incident that took place on 13 May 2009 are to be determined in March 2010;
· The wife will be seeking a further Child Support Assessment Review on the issues of the husband contributing to [W] school fees; and
·
The husband’s solicitors have raised the ‘possibility’ of a section 79A application to set aside final property orders made on
2 November 2009 in correspondence forwarded 29 January 2010.
The parties were in dispute in relation to [X] and [Y]’s schooling as well as overseas travel arrangements and in particular control of the children’s passports.
The issue of [X] and [Y]’s schooling has been live between the parties for some time. At the centre of the dispute is the wife’s desire that [X] and [Y] be educated at [W] School. Because she works at the school, the wife can receive a 25 to 50 per cent deduction (depending on her hours worked) of the children’s school fees. The husband maintains that even with the fee reduction, the parties are unable to afford the costs of a private education for their two children.
It is noted that the Child Support Assessment Agreement the parties entered into on 24 June 2008 made provision for the husband to pay [X] and [Y]’s [W] School fees for 2008 and 2009, and that the Agreement noted that the husband was not agreeing to [X] and [Y] attending [W] in 2010 or thereafter.
On the first day of the final hearing, the parties resolved the schooling issue on the basis the children will remain at [W] School and the wife will be responsible for payment of all school fees. The wife has advised the court that the issue of who is to have responsibility for the [W] school fees will be pursued by her through the Child Support Agreement review processes. I anticipate [X] and [Y]’s future education will unfortunately remain a vexed issue for these parties.
The passport issue was also resolved by consent on the basis that the children’s passports will be held in a bank safety deposit box to be released on both parties’ signature. Both of the parties have agreed that their consent to the release of the children’s passports will not be unreasonably withheld.
The wife’s evidence
The wife is seeking orders that the living arrangements for [X] and [Y] during the school term be varied from the current arrangement whereby they live with the husband from after school Wednesday to 7.00 pm Sunday in week one and from after school Wednesday to before school Friday in week two (a total of six nights per fortnight) to an arrangement whereby they live with the husband in week one from after school Friday to before school Monday and in week two from after school Wednesday to before school Friday. This would result in a reduction of the time the children live with the husband to five nights per fortnight, as well as a reduction in the time the children live with the husband during the school week.
It was the wife’s evidence that she and the husband have been in continuous conflict since their separation in 2007, save and except for the short period between April and June 2008 when they attempted reconciliation.
It was her evidence that when she entered into the consent orders that put in place arrangements for the children in July 2008, she was hopeful that such an arrangement would work and that she and the husband would be able to develop a cooperative parenting relationship.
It was the wife’s evidence however that such a cooperative parental relationship has not developed and that she and the husband continue to be highly conflicted. It was her evidence that she felt constantly under siege from the husband, that he bullies her, that there have been instances of ongoing violence between the parties such that there is no capacity for them to co-parent, and that in those circumstances it is not possible for them to satisfactorily have a shared care arrangement in relation to [X] and [Y].
In her trial affidavit sworn and filed on 5 February 2010, the wife sets out a comprehensive list of the alleged instances of conflict between herself and the husband going back to the date of separation in 2007.
The wife deposes to instances of violence between herself and the husband in Ballarat on the Queen’s Birthday weekend in 2007 when the parties and the children were on holiday, in Queensland on
28 July 2007 when the parties and the children were again on holiday and on 13 May 2009 when there was an altercation between the parties at the time the husband attended at the wife’s then residence to collect the children at the commencement of their time with him.
In relation to this latter incident, it was the wife’s evidence that when the husband attended to collect the children from her home, he was in an agitated state as she had decided to bring the children home rather than leave them in after school care where the husband had arranged to pick them up as he was running late. The wife conceded that she did so without consultation with the husband. It was her evidence that when she came out with the children, their bags and violins, she handed over a violin case and the husband took it and thrust it up towards her face. It was her evidence that she stumbled backwards and grabbed [X]’s hand and walked away from the husband. The wife gave evidence that the husband ran at her, she dropped [X]’s hand and covered her head with her hands. She said the husband grabbed [X]’s hand, dragged [X] to the car and put both children into his vehicle. Realising that she still had a bag of the children’s clothes the wife threw it at the husband’s car and went inside.
The wife gave evidence of the husband causing her real difficulty with her place of employment. She gave evidence of the husband arguing with the after school care worker, of entering into communications, both oral and written, with the principal with a request that her employment be terminated and of the husband speaking to [X]’s teacher because he was concerned [X] was withdrawn and was laying the blame for that at the feet of the wife on the basis that [X] had overheard disparaging comments that the wife had been making about him.
Tendered into evidence was subpoenaed documentation produced by [W] School which contained the school records of their interactions with the parties. Contained in the subpoenaed material was a copy of an email forwarded by the husband to the principal of the children’s school. That email, in part, is set out as follows:
“Hi [Ms G],
I would like to respectfully request that you consider terminating [Ms Tapp’s] Employment. It appears that no-one at the school is able to control her deceitful and manipulative behaviour.”
The email then goes on to list the husband’s concerns in relation to the wife which I will summarise as follows:
1. She used her position as enrolment manager to obtain information in relation to a parent at the school;
2. She refused to allow the husband’s mother to collect the children, claiming there was a court order preventing anyone other than the husband and the wife from collecting the children;
3. She removed the children from after care, in breach of the orders (which was the pre-cursor to the 13 May 2008 incident);
4. She refused to let a friend of the husband take [Y] home when he was unwell; and
5. She permits her friends and father to collect the children from school, but does not allow the same arrangements for the husband.
The husband concludes his email with the following:
“Could you please advise me what action, if any, you are able to take to eliminate the ongoing issues caused by [Ms Tapp’s] employment at the school?”
The wife makes complaint of the husband’s lack of flexibility in relation to the arrangements for the children. In particular she takes issue with him organising for persons other than herself to care for the children when he is unable to do so. It was her evidence that she believes that the children would prefer either of the parties to be caring for them rather than other family members or family friends.
Evidence was given in relation to the husband providing the wife with a spreadsheet that set out the arrangements for the children as he believed them to be pursuant to the July 2008 consent orders. It was the wife’s evidence that she did not agree with the husband’s spreadsheet and suggested that they meet with a view to resolving that impasse. It was her evidence that the husband refused to do so. In relation to this issue, the wife tendered copies of email exchanges between the parties that were in the following terms:
WIFE:
“As per the email I sent you on Wednesday 9th July I advised that I looked at the spreadsheet and it is incorrect. I have affirmed this with the CSA.
I then gave you options of:
1. Re do your spreadsheet as the weekend of 19/7 is yours (however I am more than happy to care for the kids) and then alternate weekends after that
2. Pick up the phone and talk about it like a responsible parent
3. Meet with me so we can compile a spreadsheet together
You have not responded.”
In reply, the husband emailed as follows:
HUSBAND:
“As you have not responded to my request to withdraw the i.o. I assume you intend to continue with it. It looks like you have made your choice on how you want our future relationship to be…
As per your point 2 and 3 below, as you are continuing your court/police involvement you leave me no option but to decline your kind offers.”
The wife was cross-examined in relation to a series of correspondence that were exchanged between the parties’ solicitors in July and August 2008. In that correspondence the husband’s solicitors had confirmed the confusion between the parties as to the correct interpretation of the orders and suggested that there be a spreadsheet prepared and agreed between the parties to resolve this confusion. After a flurry of correspondence, the wife’s solicitors advised that their client did not wish to enter into negotiations regarding a spreadsheet with a view to resolving the different interpretations of the consent orders.
When asked why she had instructed her solicitors in this way, it was the wife’s evidence that the husband had already declined to discuss this, meaning by way of the email exchanges in July 2008. When it was put to her that perhaps he had changed his mind and hence had his solicitors write to her, her comment was:
“He changes his mind all the time.”
The wife was cross-examined as to why she was complaining about the husband’s refusal to negotiate on this issue in her affidavit when it was in fact she who had refused to sort things out. She made no reply.
It was the wife’s evidence that there had been occasions when the husband had asked her to ‘swap’ the weekends that the children were to live with him. It was her evidence that she is not willing to ‘swap’ weekends, that she believes the parties should follow orders and that if one or other of the parents are unable to look after the children on a particular weekend, then the other parent can look after them. The wife indicated it was her view that the children are not ‘objects to be swapped’ and she did not believe that attitude was a reflection of a lack of flexibility on her part.
It was the wife’s evidence that she believed it was in the children’s best interests that if either of their parents were unable to care for them for a period of more than 24 hours, they should be cared for by the other parent. She was of the opinion that the children would prefer that arrangement. The wife indicated that she had no issue with the capacity of the paternal grandmother to care for the children and agreed that they had a close and loving relationship with her.
The wife was cross-examined in relation to a wedding she attended in Canada last year for some eight days and conceded that it was her father that looked after the children, but said she had made an offer to the husband that he care for the children and that he had declined that offer. The husband denies that any such offer was made.
The wife also gave evidence that at the end of December 2009, the children were looked after by her family in [M] for two or three days. She conceded that she had not contacted the husband to see if he could care for the children on that occasion and said that she had asked the children where they wanted to stay and they had opted to go to [M] with the maternal family because they could go swimming there.
It was the wife’s evidence that the husband denigrates her in front of the children and in paragraph 12 of her trial affidavit, she gave examples of this evidenced in comments made by the children in the period from July to September 2008. It was the wife’s evidence that she keeps diaries and that she notes in those diaries any incidences or exchanges between herself and the husband in relation to the children. The wife was asked to produce those diaries and did so. It was put to her in cross-examination that her diary of 2009 was largely blank in relation to these issues, save and except for the incident on 13 May 2009. It was the wife’s evidence that this was a very significant incident and that there had been other incidences of denigration. She referred the court to paragraph 39(m) of her trial affidavit where she deposes:
“On 23 December 2009, when asked what football team he barracked for, [Y] started to cry. When I asked him what was the matter he said ‘if I don’t barrack for daddy’s team he will not love me anymore and I’m not allowed to live with him and I want to go to Luna Park.’”
When it was put to the wife that this did not denigrate her in any way, her evidence was:
“Yes, I think it does.”
It was put to the wife that her concerns would be best addressed if the current arrangements remained in place, with the return of the children to the husband after they had been with him for the weekend being tipped over to Monday. The wife vehemently said:
“No.”
It was the wife’s evidence that there needed to be a decrease of the time the children spent with the husband because of the husband’s denigration of her, because of the parties’ inability to communicate or co-parent, because of the children’s welfare, because the children are too young to be ‘split’ and need stability and guidance and that they needed a stable home in which to flourish.
The wife agreed that the children are bright and intelligent, they function well socially and academically and that they have not been negatively impacted by the difficult interpersonal relationship between the parties. The wife was most reluctant to give the husband any credit for this and indicated that she shielded the children from her relationship with her ex-husband.
The husband’s evidence
It is the husband’s proposal that the existing arrangements for the children continue, save that their return to their mother be extended from 7.00 pm Sunday night to before school Monday morning. This would have the practical effect of the children spending seven nights in each fortnight with each of their parents.
It was the husband’s evidence that the existing arrangements for the children have been in place for some time now, the children are thriving under this arrangement and that to reduce the children’s time with him and in particular to change the arrangements so the children no longer spent each Wednesday and Thursday night with him in each week would be ‘reckless’.
The husband agreed that relations between himself and the wife in 2007 and the second half of 2008 were ‘not good’ and that there were a number of emails and other communications between himself and the wife about which he is not very happy with and about which he is not particularly proud. It was his evidence that both parties sent unpleasant emails to each other.
The husband gave evidence that he believes the parties have communicated more appropriately in 2009, save for the 13 May 2009 incident.
The husband however conceded that the parties’ interpersonal relationship continues to be fraught, but he was of the view that they were able to shield [X] and [Y] from that and parent their children in a relatively positive way.
The husband was challenged in relation to his claim that communication between the parties in 2009 was better. More particularly it was put to him that the interaction that he had had with the school in 2009 in an endeavour to have the wife terminated from her position with the school could not be seen as evidence of anything other than a conflictual relationship.
The husband was specifically asked by me why he had tried to have the wife terminated from her position at [W]. It was his evidence that there had been a number of incidences at the school, which included the ‘sick bay incident’ where the wife refused to have a friend of the husband take [Y] home and insisted he remain in the sick bay for an hour until the husband arrived, the refusal to allow his parents or other persons to collect the children and his belief she had used her position in the school to gain information contained in her affidavit to opposing his application to take the children overseas for a holiday. The husband believes these incidents would not have arisen if the wife had not been working at the school. The husband was of the view that if she was not employed at the school, the conflict these incidences gave rise to could be avoided.
Somewhat reluctantly, the husband conceded that if he had been successful in having the wife’s employment terminated, it would have been a very severe blow to the wife and to the children.
It was put to the husband that the real reason he was attempting to have the wife fired from [W] School related to the then dispute between he and the wife as to the children continuing their schooling at [W] School. It was put to the husband that if he was successful in having the wife’s employment terminated, she would no longer be eligible for a discount in relation to the school fees, and this in turn would support his argument that the parties could not afford to continue to have the children attend that school. The husband was vehement in his denial of this allegation.
The husband was also vehement in his denial that he had ever harassed, intimidated or been violent towards the wife.
In relation to the alleged incidences of violence, it was the husband’s evidence that in relation to Ballarat in 2007 it was the wife who hit him and he in fact ended up with a perforated eardrum. It was his evidence that in Queensland in 2007 he and the wife did have an argument in the car, but that he had no idea when he drove off that she was holding on to the car and as soon as he saw her he stopped. In relation to the May 2009 incident, it was the husband’s evidence that it was the wife who was aggressive towards him and that as a result of that aggression, he made application for an intervention order against her. The wife defended that application, and following a contested hearing the Magistrate granted the husband’s application.
The husband was shown correspondence forwarded by his solicitors to the wife’s solicitors on 29 January 2010 in relation to a dispute as to the release of subpoenaed material. In a paragraph numbered 2 in that correspondence, it says as follows:
“2.We have been instructed by our client that at the time of the property settlement your client did not make full and frank disclosure in respect of her financial position. In this regard our client has instructed us that he is considering making an Application to set aside those Orders on the basis of non disclosure. Were we to withdraw the Subpoenas or indeed modify the Subpoenas for documents for the past two years, the Application could be issued and the Subpoenas which we have already prepared and served could then be re-issued.”
The husband was questioned as to whether he had instructed his solicitors to send that correspondence. The husband denied having seen the letter before or being aware of its contents and stated that he did not instruct his solicitors to send that letter. He conceded that he had discussed his concerns with his solicitors as to whether the wife had made full and frank disclosure, but he had no intentions of pursuing any application in this regard.
The subpoenaed documents in question related to the wife’s financial position for the last two years and were said to be relevant to the issue of whether the children were to be educated at [W] or at a government school. I had refused to release that subpoenaed material until I was able to ascertain their relevance once the matters were properly before me as neither party had filed an application seeking any orders in relation to the children’s schooling.
The husband’s solicitor was not called on this issue.
The husband agreed that the interpersonal relationship between himself and the wife is not good and that he does harbour negative views in relation to her. It was his evidence however that he considers her to be:
‘a great Mum’.
It was put to the husband that he only makes positive comments about the wife’s parenting capacity to the court and to the family report writer Dianne Dockeary because he knows he needs to be making statements like this to be considered a candidate for shared care. The husband’s evidence was that he genuinely believes the wife is a very good mother and that they are both letting the children down by engaging in continuous litigation. It was his evidence that if they were doing a ‘great job as parents’, they wouldn’t be here (sic in court) and in doing so it detracted from their parenting. The husband gave evidence that individually the wife is a very good mother and he is a very good father but they needed to work on their communication and co-parenting relationship.
The husband did not agree with the wife’s position that the children needed a single home base from which they can emanate out. It was his evidence that the current arrangements for the children were very close to equal shared care and that the children were thriving under this regime and were very much adjusted to moving happily between both their parents.
Dianne Dockeary
Ms Dianne Dockeary is a psychologist and she has prepared two family reports in relation to this family. Her first report was dated
17 December 2007 and was prepared in relation to the initial proceedings between the parties before this court. Ms Dockeary also prepared a second report dated 12 January 2010 in relation to the current matter before me. Ms Dockeary also provided oral evidence at the final hearing of this matter.
In her first report of 17 December 2007 at page 11, Ms Dockeary made the following observation:
“In the psychologist’s opinion at the core of the current disagreement is the nature of the parties’ adult relationship. As both acknowledged, the marital relationship had been characterised by a lack of personal intimacy and that currently both harbour some distrust towards the other for different reasons.
Notwithstanding these observations, independently both Mr and Ms Tapp impress as reasonable people and as good parents. Indeed, as Mr Tapp readily maintains: ‘We’re both good parents. [Ms Tapp] is a great mum. I believe I’m a great dad’. The psychologist would agree with this.”
In her second report of 12 January 2010 at page 14, Ms Dockeary again noted:
“As stated in the previous Family Report: ‘In the psychologist’s opinion at the core of the current disagreement is the nature of the parties’ adult relationship’.
Both Mr Tapp and Ms Tapp must ask themselves how serious they are in providing good role models and leading by example for their 2 children. They can only be good role models, if they think about their own responses to the other parent’s behaviour, and ask what outcome they seek, before they act.”
It was put to Ms Dockeary by Counsel for the wife that current research shows that shared parenting on an equal basis is
contra-indicated in terms of child welfare when the levels of conflict between the parents are very high. Ms Dockeary was asked if that was her understanding.
Ms Dockeary responded that this accorded with her understanding of the research and when asked why parents who are in high conflict are not recommended to adopt a shared care arrangement for their children, it was Ms Dockeary’s evidence as follows:
“It’s bad role modelling. It’s often desensitising the children that this level of conflict is acceptable. If there is a lack of communication, then the children are being made responsible to make the arrangements and sometimes the decisions for their daily or weekly care… Generally with a high level of conflict, it’s just a totally inappropriate way of parenting for the children.”
It was Ms Dockeary’s evidence that where parents are highly conflicted, an important factor in considering whether shared care is appropriate is the level of conflict that the children experience. It was Ms Dockeary’s evidence that from her observations of this family, the children had not been exposed, with any intensity, to the parental conflict and that from the perspective of the children, the parents had been cooperative and that this is reflected in the children’s behaviour and their positive relationship with each of their parents.
Ms Dockeary was of the view that the parental relationship in this matter was somewhat perplexing in that it fluctuates. She described it as ‘running hot and cold’ over time and generally had a view that the nature of the parties’ relationship was not one that fits with the description of being volatile or highly conflicted.
It was Ms Dockeary’s evidence that during the preparation of the second family report, the children were in a different room with the husband while she was interviewing the wife. At the conclusion of that interview, rather than avoiding any interaction with the husband, the wife entered the playroom to tell the children she was leaving for a short time to get some coffee.
At page 13 of her second family report, Ms Dockeary noted two things in relation to that action as follows:
“Two things were apparent. The children were not distressed by their parents being together in the same room. They continued to play and appeared happy.
Secondly, it had not been necessary for Ms Tapp to enter the playroom. She placed herself in the immediate presence of
Mr Tapp. While both parents behaved appropriately in front of their children, Ms Tapp’s behaviour was perplexing; given that both parents have reported they want as little to do with each other as possible; for example, do not want to see each other on the alternate Sunday evenings.”The parties’ evidence was such that it was apparent that the wife perceived that she and the husband had a highly conflicted relationship whereas the husband viewed their relationship, whilst being difficult, as one in which they were managing to interact with each other reasonably cooperatively, at least in relation to their children.
Ms Dockeary was asked as to whether it was quite possible that that was a true reflection of how each parent felt about the nature of the relationship and she agreed that in all probability that was accurate.It was Ms Dockeary’s evidence that when she interviewed the parties, the husband was seeking that arrangements be put in place for the children which reflected the proposal that he currently has before the court. Ms Dockeary indicated however that at the time of interview, the wife’s proposal was that the existing six nights per fortnight the children live with their father continue, but that in the first week such time be from after school Thursday to before school Monday.
When it was clarified with Ms Dockeary that the wife’s proposal was that the time with the children be reduced so that they spend five nights per fortnight with the husband, Ms Dockeary gave the following evidence:
“My view is that the children – it’s not in their interest to reduce their time with their father that they currently have. In my dealings with them, I see no reason at all why their time with their father should be reduced, in terms of their relationship with their father.”
Ms Dockeary was then asked why she had that view and it was her evidence as follows:
“They love their father, they enjoy spending time with him. My observation of them in the playroom with their father and their responses to me, both verbal and written, are that they have a good, solid, reliable, secure relationship with their father and with their mother, and that that should not be jeopardised or comprised in any way by – with this particular question – in reducing their time with their father.”
In her second family report, Ms Dockeary on page 15 made the following observation:
“In summary there is little of substance from Ms Tapp about why the children’s routine should not increase by 1 night each fortnight. Nor from Mr Tapp is there any substance as to why it should.”
In her viva voce evidence, Ms Dockeary confirmed that she had no strong views as to whether the children should continue to spend six nights per fortnight with their father or seven nights per fortnight with their father, other than she could see no issue for the children in having their father take them to school on the Monday morning rather than returning them to the wife on the Sunday night.
Counsel for the husband put to Ms Dockeary that there was no evidence from her assessment of the children that they had been embroiled in the dispute between their parents and that there was no evidence that the parents had a poor capacity to be emotionally available to their children, nor were there any protective issues or allegations that could be seen as objective risk issues for the children.
In response to that proposal, Ms Dockeary’s evidence was:
“That’s correct. Without wanting to negate or not put weight on the significance of their altercations, which should not and should never have occurred, in my years of experience, this couple are not volatile with each other. There is not a high level of conflict. They’re possibly provocative with each other at different times. How they perceive each incident may be genuine, but they perceive it differently. The children’s behaviour and how the children present is a measure of, a direct measure of the children’s perception of their parents’ relationship, and the children’s perception is basically that mum and dad are mum and dad. Not necessarily friends, but there’s no indication that these children have been emotionally damaged by any of these periodic episodes of fights between them.”
It was put to Ms Dockeary by Counsel for the wife that it would be better for the children to have one home base with one parent from which they emanated out to the other parent, given the ‘hot and cold, up and down’ perplexing nature of the parties’ interpersonal relationship.
In response to this proposition, it was Ms Dockeary’s evidence as follows:
“These two children have – possibly because they’re twins, and they are quite unique in that sense of having, they do most things together – they have experienced a routine where they have not necessarily had one home base. It’s increased incrementally over 2008/2009. If we were talking about a situation where they had not experienced that, I would say, yes, children need the one home base, and they need to have a block period of time and frequency of time with the non-resident parent. These children are in a little bit of a different situation where they have begun to experience increasing time, in this case, with their father, and, in particular, that two night block in week two, Wednesday and Thursday, is not usual or common, but these two little children have experienced that and seem to have adjusted and adapted quite well to it.”
Ms Dockeary noted the disparate views of the parties in relation to the altercations between them and quite properly confirmed it would be a matter of evidence as to any findings as to which of those versions were more accurate. However, on page 15 of her second report,
Ms Dockeary noted the following:“The physical altercations between this couple are extremely important, in terms of their negative impact on the children.
Mr Tapp and Ms Tapp should be mindful of [Y]’s comments to the psychologist that they ‘used to throw bottles at each other, but not any more’; that they would ‘smack each other sometimes, but just once when I was 2’; also, ‘They still did it when I was 4’.”Ms Dockeary confirmed that whilst she does not believe the parties’ relationship is a highly conflicted one, any altercations between the parties, especially where there is a physical component, will impact on the children.
Best interests of the child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
1. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
In this matter, both parents are seeking orders that there be equal shared parental responsibility for [X] and [Y]. Whilst not surprising from the husband’s perspective of the parental relationship, it is perhaps somewhat surprising that this is a proposal of the wife in the circumstances of her description of the complete lack of cooperation between herself and the husband in relation to the parenting of their children. The wife’s evidence in relation to the parties’ inability to agree on schooling, their inability to agree on extra-curricular activities and her protestations in relation to any level of cooperation between the parties could have possibly supported an argument by her that an order in these terms was not viable. The wife has not posited such an argument.
Whilst there is no doubt that the interpersonal relationship between the husband and wife in this matter is at best described as difficult, and at worst described as dysfunctional, their relationship with their children is close and loving and I am satisfied it is in the children’s best interests that both parents continue to have input into the long-term and major decisions affecting their lives into the future.
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent.
It provides as follows:1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The husband is seeking orders whereby the children live equally with both himself and the wife, whereas the wife is seeking orders that the children spend significant and substantial time with the husband. Which of those proposals is best for these children will be determined by me in accordance with the provisions of the Act.
When determining what arrangements should be put in place for children, the Act quite clearly sets out that the orders the court must make be in the best interests of the children. In order to determine what is in the children’s best interests, the court has to consider the matters set out in sections 60cc(2) and (3) of the Act.
Each of the matters set out in subsections 2 and 3 of section 60cc of the Act are to be assessed in the context of each of the parties’ behaviours and proposals, and a decision then made as to which of those proposals, or such other proposal as the court may determine, will be in the child’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
In her second report of 12 January 2010 at page 14, Ms Dockeary notes in the penultimate paragraph the following:
“The children have a significant and meaningful relationship with both parents. This has not changed since it was observed during the preparation of the previous report. Also, as stated previously, there is no evidence that either parent would knowingly expose the children to physical or psychological harm. Both parents are protective, reliable and responsible.”
This accords with my own observation of Mr and Ms Tapp as parents. To date, no matter how inappropriate their own relationship, they have shielded [X] and [Y], most of the time, from that conflict.
I join with Ms Dockeary in noting however that it is incumbent on both parties to ensure that they continue to shield the children from their interpersonal issues, and in particular any physical aggression between them should not occur.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account and each of these will be considered in turn where relevant.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
[X] and [Y] are only seven years of age and quite properly
Ms Dockeary did not ask the children about any preferences they may have in relation to their living arrangements.
However, she noted that [X] understood that she lived in two houses, one where each of her parents lived, and said that she had seven sleeps in each house. She reported that both Daddy and Mummy give her kisses and cuddles and that she loves Mum, Dad and [Y] and that her family consists of Mummy, Daddy, [Y] and me.
[Y] also explained that his Mum and Dad have different houses and that he is happy with his current routine, though it’s noted by
Ms Dockeary that he actually didn’t really understand what that routine was. Like [X], he spoke positively about both his parents and said that he loves Mum and Dad and [X], and that his family consists of Mum, Dad, [X] and [Y].
Ms Dockeary describes [X] and [Y] as being well cared for and well loved and as children who feel part of a secure family unit that consists of each sibling and each parent.
In summary, if one was to look at [X] and [Y]’s ‘views’ at this time, they are that they have a close and loving relationship with both their Mum and Dad who love them very much and who have ensured that they are secure and content within their family units.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As described previously in this judgment, [X] and [Y] have a significant and meaningful relationship with both of their parents.
Perhaps somewhat unusually for children as young as [X] and [Y], rather than having a primary carer, they seem to be securely attached to both their parents. Ms Dockeary explained this in part because they are twins and also in part because of their positive experience of the shared care arrangement that has been in place for a considerable period of time.
It is also agreed that [X] and [Y] have a close and loving relationship with their paternal and maternal grandparents, and that they spend time with their grandparents on a regular basis.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
There is no doubt that the wife holds a very strong view that the husband denigrates her to [X] and [Y] and does not support the children’s relationship with her.
The husband views the wife as inflexible in relation to the arrangements for [X] and [Y] and describes her as manipulative and as a liar.
The wife views the husband as intimidating and aggressive and expresses a desire to minimise, as much as possible, the necessity for her to come into contact or communicate with the husband.
The husband similarly wishes to limit the contact between himself and the wife and has actively sought to undermine her employment at the children’s school because of his belief that it is a source of ongoing conflict between them, even when he himself acknowledges that the children enjoy having their mother working at their school.
Despite the claims and counter-claims by each of the parties against the other in respect to conflict and aggression and despite the obvious dysfunctionality of their interpersonal relationship, [X] and [Y] present as having been protected from their parents’ dysfunctionality and conflict, and even more surprisingly indicate that their parental experience is of parents who cooperate and work together.
The husband spoke positively about the wife as [X] and [Y]’s mother and whilst the wife’s Counsel was dismissive of the husband’s statements as being nothing more than propaganda to support his application for equal time, I was satisfied that his statements in this regard were genuine.
The wife was unable to speak positively of the husband in any way. Whilst she acknowledged [X] and [Y] love their father, she was unable to speak positively of him as a father, nor give him any credit for the well-adapted young people the children are.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Neither parent is proposing a shift in the fundamental arrangements for [X] and [Y] in terms of the parties continuing to reside within close proximity to each other, the children continuing to attend at their same school and continuing to live with their parents for substantial or significant or equal periods of time.
Whatever arrangements are put in place, they will not in any way impact on [X] and [Y]’s relationships with either of their parents.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not relevant.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parents have provided for the emotional and intellectual needs of [X] and [Y].
However, as has been commented on at length in this judgment, the dysfunctionality of the parental relationship is such that it is incumbent on both the parents to seriously take responsibility for their own behaviours and to adjust them in such a way that they start to deal with each other in a mature and appropriate way.
In her conclusion to her second report, Ms Dockeary made the following observation:
“Notably, after interviewing this family over the course of 2 reports, it remains difficult to fathom what the really important issues are for Mr and Ms Tapp. They will claim it is the care and welfare of their children: but the nature of their parental relationship is confusing at best, and detrimental to their children’s emotional welfare, at worst.”
I would agree with Ms Dockeary’s observation. In the two days of evidence that was heard by me in this matter, there was almost none that was directly about [X] and [Y]. I was told that they are well-adjusted, happy, thriving young six year olds who are doing well both academically and socially, are meeting all their developmental milestones and who are loved by and love both their parents. I gleaned this more from Ms Dockeary’s report than from the parties’ evidence, especially that of the wife.
What the evidence showed me was two very self-focussed, self-obsessed adults whose ongoing obsession with the other has the potential, if not addressed appropriately by both of them, to impact on what to date has been their positive parenting and as such ultimately impact on the wellbeing of their children.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not relevant.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
There is no doubt that both Mr and Ms Tapp are good parents who are devoted to their children and who have, thus far, shielded the children from their interpersonal difficulties so that [X] and [Y] are loved, well-adjusted, flourishing young people.
However, as noted somewhat vehemently earlier in this judgment, I am of the view that both of the parties must start to take responsibility for their own behaviours and put into place appropriate interventions and strategies to find better ways to communicate and deal with each other as [X] and [Y]’s Mum and Dad, rather than the ‘bitterly hated former spouse’.
Throughout the whole of the wife’s evidence, she took no responsibility for any of the inappropriate interactions between herself and the husband. She blamed him entirely for the current difficulties in their relationship.
Produced to the court were copies of emails and messages sent by the wife to the husband which were at best completely inappropriate and at worst quite disgusting. The altercation between the parties on 13 May 2009 was such that a State Magistrate was satisfied that the husband should be granted an Intervention Order.
There is no doubt that the wife perceives the husband as bullying and intimidating and undermining her relationship with [X] and [Y]. She filed an affidavit in these proceedings that documented every single negative aspect of the husband (from her perspective) for the last three years. Without in any way condoning the husband’s behaviour, which I will address shortly, it would be of benefit to the wife if she were to focus less on the negative aspects of the husband and look more to the positive attributes he brings to their children (noting that in her evidence, the wife only ever referred to them as ‘my children’) with a view to finding a way to engage with him as the children’s father in a positive way.
Similarly, there were aspects of the husband’s behaviour which were equally as inappropriate. He himself conceded that there had been emails and exchanges between himself and the wife in 2007 and 2008 of which he was ashamed and appropriately so. He too sought to downplay his role in the physical altercations that had taken place between himself and the wife in circumstances where he is clearly the bigger and the stronger of the two parties.
It was apparent in the course of him giving his evidence that the husband is a forthright, articulate and blunt man who holds his views very strongly.
In the material produced pursuant to subpoena by [W] School and tendered into evidence, there was a report of an incident between the husband and an employee of [W] who worked in the office. The husband had attended at the school trying to see the principal at the time that he was agitating for the wife to be dismissed from [W]. The employee found the husband to be aggressive and somewhat intimidating. The husband subsequently sent this person an email, in which he apologised for his behaviour and assured her that he had not meant to expose her to any anger or aggression. However, when cross-examined in relation to this particular incident, the husband denied that he was aggressive to this worker and seemed incapable of recognising that even when his anger and frustration was not directed at that person, his behaviour was aggressive and intimidating.
The husband gave evidence that he was optimistic that with the resolution of this litigation, things would ‘calm down’ and he and the wife would be able to better communicate and better deal with each other. This seems somewhat optimistic in circumstances where there is at least two, possibly three, more potential areas of litigation between the parties and where both of them seem to institute litigation as their first response to any deemed inappropriate behaviour of the other.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
The alleged incidences of family violence between the parties have been set out in detail already in this judgment.
It can only be repeated that it is incumbent upon both parties to ensure that such behaviour never occurs again.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
As set out previously in this judgment, the husband currently has an Intervention Order against the wife arising from the incident that occurred on 13 May 2009.
Again, it can only be repeated that it’s time that Mr and Ms Tapp took responsibility for their behaviours and ensure that such incidences do not occur again, especially in front of [X] and [Y].
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
As noted, these parties have been in almost continuous litigation from the date of separation.
Whilst one would like to think that the finalisation of this matter may lead to the cessation of proceedings between them in relation to the arrangements for their children, it is difficult to do so with any degree of optimism.
In these circumstances, the court can only make orders that are determined to be in the children’s best interests on the basis of the available evidence at this time.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
It is apparent from the parties’ conduct that any orders that are made will need to be completely clear and unambiguous, so that any potential for confusion and misinterpretation is eliminated as far as possible.
Conclusion
On the face of it, this is a matter that involves the living arrangements for the parties’ two children, [X] and [Y], who are six years of age. In reality it seems to be more about the ongoing unresolved adult relationship of the parties and their inability to move on and be their children’s parents.
Currently, [X] and [Y] live with their mother eight nights per fortnight and with their father six nights per fortnight. The husband is seeking orders that this arrangement be varied so that the children live equally with he and the wife, whilst the wife is seeking orders that the amount of time the children live with their father be reduced so that they live with him five nights per fortnight and nine nights with her.
The husband argues that [X] and [Y] have a close, loving and meaningful relationship with him and that in real terms all he is seeking to do is to ‘tweak the existing orders’ so that the children are taken by him to school on Monday morning, rather than returned to the wife at 7.00 pm on Sunday night.
He argues that [X] and [Y] are in a settled routine, are progressing well, are well-adjusted and that this arrangement will be in their best interests.
Whilst the husband concedes there are difficulties in the relationship that he has with the wife, generally the parties have been able to communicate satisfactorily in relation to their children.
The wife is seeking a reduction in the husband’s time with [X] and [Y]. She argues that the inability of she and the husband to communicate on any level, his denigration of her and his bullying of her are such that a reduction in the children’s time with the husband will give them a requisite sense of stability and shield them from the conflict between their parents.
The wife argues that social science research indicates that children in high-conflict situations do not thrive in a shared care arrangement and that her proposal is therefore in the children’s best interests.
Ms Dockeary made the observation that in her professional opinion these parties were not ‘highly conflicted’ in that their relationship was ‘up and down’ and more importantly, they had been able to shield [X] and [Y] from their difficult relationship so that they experienced their parents as co-operative. I agree with that observation.
Having said that, a conflicted parental relationship does not always mean that a shared care regime is not in a child’s best interests. In Astor & Astor [2007] FamCA 355 O’Reilly J examined the authorities and made reference at paragraph 104 to the decision of the Chief Justice (then Chief Federal Magistrate Bryant) in C v O’N [2003] FMCAfam 154 where Her Honour held that despite circumstances where there had been verbal and physical altercations between the parties, the children’s best interests would be served by week about equal time.
In paragraph 106 of his judgment, His Honour cited with approval paragraph 93 of the decision of Ryan J (then Federal Magistrate Ryan) in T & N [2001] FMCAfam 222. In this paragraph, Ryan J sets out the factors a court should examine when a party seeks orders for equal time and noted that the parties’ capacity to communicate on matters relevant to the children’s welfare is but one factor to be considered in determining the best interests of the children. As did His Honour, I will set out paragraph 93 of Ryan J’s judgment:
93.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.
When considering the circumstances for [X] and [Y], many of the factors enumerated in Ryan J’s judgment are in place. The parties have been able to communicate reasonably well in relation to their children’s welfare, they live in close physical proximity to each other, there is a long history of a shared care arrangement to which [X] and [Y] are well-adjusted, neither took issue with the other’s parenting style in respect to discipline, health, diet, sleeping patterns and they both have similar ambitions for [X] and [Y].
To their credit, the parties have largely been able to shield [X] and [Y] from their own dysfunctional relationship so that they are well-loved, well-adjusted, flourishing young people.
Ms Dockeary’s evidence was very clear that it is not in these children’s best interests that the time they live with their father be reduced in any way and I am in agreement with her in that regard.
Both parties are in heated agreement that any orders that are made should make provision for the children to be taken to school by their father on the Monday morning after they have spent that weekend with him in the two week cycle.
I am also satisfied that these children have become very comfortable and accepting of spending every Wednesday and Thursday with their father. The wife’s proposal would see that arrangement torn asunder and I don’t believe that that would be in the children’s best interests.
I have therefore formed the view that orders should be made that the existing arrangements shall remain in place, save and except that rather than being returned to the wife at 7.00 pm on Sunday night [X] and [Y] be returned by the husband to school on Monday morning and orders will be made in those terms.
It is the wife’s application that orders be made that in the event one parent is unable to care for the children for more than 24 hours then the other parent should be given the option to take up that care. Such an arrangement requires a level of cooperation between the parties that is absent at this point in time between these parents.
Further, I am of the view that it is the responsibility of the parent with whom the children are living to put in place appropriate care arrangements for the children during that time. There may be occasions where the children will be given the opportunity to stay with much loved grandparents, there may be occasions where the children will be given the opportunity to go away with school friends, or cousins and other relatives. They should be given the opportunity to do that.
There may also be occasions if one parent is going away for an extended period that it is appropriate that the best thing for the children is for them to remain living with the other parent, and I would expect that such an arrangement would be made if those circumstances arose.
However, I do not intend to make orders in the terms sought by the wife as the potential for that to cause ongoing conflict and argument between these parties would well and truly not be in [X] and [Y]’s best interests.
I certify that the preceding one-hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate: Sarah Hession
Date: 19 March 2010
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