TARULLO & TARULLO

[2013] FCCA 2225

FEDERAL CIRCUIT COURT OF AUSTRALIA

TARULLO & TARULLO [2013] FCCA 2225

Catchwords:
FAMILY LAW – Parenting – parenting arrangements for two children who have historically spent different periods of time in their parents’ respective households – discussion of children’s views – mother’s health – capacity of each of the parents to support the children’s relationship with the other parent.

Legislation:
Family Law Act 1975, ss.60CA, 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 65DAA(1), 65DAA(2), 65DAA(3) and 65DAA(5).

Cases cited:
Goode & Goode [2006] FamCA 1346
H v W (1995) FLC 92-598
MRR & GR [2010] HCA 4

Applicant: MR TARULLO

Respondent: MS TARULLO

File Number: SYC 3103 of 2010

Judgment of: Judge Walker

Hearing dates: 30 September 2013, 1 & 2 October 2013

Date of Last Submission: 2 October 2013

Delivered at: Sydney

Delivered on: 19 December 2013

REPRESENTATION

Counsel for the Applicant: Mr Maurice

Solicitors for the Applicant: Patrick Lim & Associates

Counsel for the Respondent: Ms Lawson

Solicitors for the Respondent: E. H. Tebbutt & Sons

Counsel for the Independent Children’s Lawyer: Ms Karagiannis

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW

THE COURT ORDERS THAT:

1. The parents shall have equal shared parental responsibility for the children, [X] born [in] 2003 and [Y] born [in] 2008 (“the children”).

2. The children shall live with the mother.

3. Unless otherwise agreed, the children shall spend time with the father as follows:

   (a)Beginning on the first weekend following the commencement of Term 1 2014, on each alternate weekend from after school on Friday until before school on Monday (or, in the event that the Monday is a public holiday, then before school on Tuesday) with such time to start at the beginning of each term on the first weekend following the commencement of school.

   (b)During school holiday periods:

   (i)For the shorter holidays following Terms 1, 2 and 3 in even numbered years from after school on the last day of term until 6.00 pm on the second Saturday of the school holiday period and in odd numbered years from 6.00 pm on the second Saturday of the school holiday period until before school on the first school day of the new school term.

   (ii)For the Christmas school holidays which commence in odd numbered years, from 6.00 pm on the day following the last day of Term 4 until 6.00 pm on 10 January and in even numbered years, from 6.00 pm on 10 January until 6.00 pm on the first school day of Term 1.

   (c)On the Father’s Day weekend if the children are not otherwise already in the care of the father from 6.00 pm Saturday until before school on Monday.

4. In the event that the children are spending time with the father on the weekend of Mother’s Day, the children shall be returned to the mother at 6.00 pm on the Saturday until before school on Monday.

5. That for the purposes of these orders, unless otherwise agreed between the parents, changeover shall occur:

   (a)At the children’s school if the changeover occurs on a school day; or,

   (b)At the McDonald’s family restaurant at [S] in the event that changeover occurs on a day which is not a school day.

6. The children are to communicate with the father, unless otherwise agreed:

   (a)By telephone between 7.00 pm and 8.00 pm on Thursdays and Sundays, with the father to call the children on the children’s mobile phone or the mother’s landline and the mother to take all reasonable steps to ensure that the children are available to answer the father’s call; and,

   (b)By any other electronic means utilised by the children, including but not limited to email, SMS text message or internet based communication.

7. The children are to communicate with the mother, unless otherwise agreed:

   (a)By telephone between 7.00 pm and 8.00 pm on Thursdays and Sundays, with the mother to call the children on the children’s mobile phone or the father’s landline and the father to take all reasonable steps to ensure that the children are available to answer the mother’s call; and,

   (b)By any other electronic means utilised by the children, including but not limited to email, SMS text message or internet based communication.

8. The mother and father are to ensure the children are at liberty to telephone or communicate with the other parent by any other electronic means at such other reasonable times as the children wish to do so.

9. The mother shall:

   (a)Provide the father with and keep the father advised of the names and addresses of the children’s treating doctors;

   (b)Inform the father in writing as soon as practicable of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, counsellor or therapist (“specialist medical consultant”) in relation to the children; and,

   (c)Ensure that the father is provided with a copy of any report by any such specialist medical consultant in relation to the children, within 14 days of the mother’s receipt of the report.

10. That both the father and mother shall be entitled to:

    (a)Attend any appointments with any treating doctor or specialist medical consultant relating to the children; and,

    (b)Discuss the children’s condition with such treating doctor or specialist medical consultant.

11. Each parent, when the children are in the care of that parent, is to inform the other of any urgent medical treatment provided to either of the children.

12. Each of the parents is to authorise as necessary, the other parent to receive copies of all reports, circulars, notices and documents in relation to the children including copies of all school reports, reports on progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited.

13. Both the mother and father are permitted to attend:

    (a)Any school event relating to the children to which parents are ordinarily invited; and,

    (b)Any of the children’s extracurricular activities.

14. The mother and the father shall notify each other of any proposed change to their place of residence, such notification is to be made in writing and no less than fourteen (14) days prior to the proposed change.

15. The mother and father shall notify each other of any change in telephone contact numbers, such notification is to be made in writing and within three (3) days of any change.

16. For the purposes of communicating information concerning the care of the children or issues relating to the parental responsibility between the parents, the mother and the father shall, unless otherwise agreed:

    (a)Communicate by telephone or text message for matters of an urgent nature; and,

    (b)Otherwise, communicate by writing or email.

17. The mother and the father be and are hereby restrained from:

    (a)Discussing these proceedings in the hearing or presence of the children or showing the children any document pertaining to the proceedings; and,

    (b)Speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating manner in the presence or hearing of either of the children,

    And the parents shall use their best endeavours to ensure that no other person does so.

18. No later than the conclusion of [Y]’s first term at school, the mother and father shall arrange for [Y] to undergo a full developmental assessment by an agreed paediatrician, and if there is no agreement, the mother shall nominate three (3) paediatricians to the father and the father shall pick one of those paediatricians and advise the mother of his choice within seven (7) days of being provided with details of the nominated paediatricians.

19. The mother and father shall comply with the recommendations of the paediatrician in relation to the care of the child, [Y], including any recommendations or referrals for further therapy or treatment.

20. These orders are to be explained to [X] by the Independent Children’s Lawyer and the family consultant.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3103 of 2010

MR TARULLO

Applicant

And

MS TARULLO

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings relating to two children whose parents over time agreed to an arrangement which involved shared care of the children.  The arrangement also meant that their daughter, who is now ten, lived for a greater part of time in her father’s household while the son, aged five, lived predominantly with his mother, who suffers from multiple sclerosis. The father’s move of residence during the course of the proceedings has made a continuation of such a shared care arrangement impracticable.  This raises an issue about how the best interests of each of the children can be met.

Background

1. The applicant father, whose family has a [omitted] background, was born in [omitted] and came to Australia in February 2000. He now is forty three-years of age.  The mother who is thirty-eight was born in [omitted] and came to Australia in 1999.  Both parents are now Australian citizens.

2. The parents married [in] 2001. Their daughter, [X], was born [in] 2003.

3. When [X] was about two months of age the parents asked the paternal grandmother to come to Australia to help care for the child.  Subsequently the mother returned to work.  By the end of 2003, the paternal grandmother moved in with the parents so that she could care for [X] during the day.

4. In May 2004 the family moved into a townhouse at [T]. The grandmother moved out of the [T] townhouse in mid-2005.  She continued to be involved in [X]’s care with either the mother or the father dropping the child at the grandmother’s home.

5. In August 2005, the mother was diagnosed with multiple sclerosis.  She agreed that both the father and paternal grandmother supported her in caring for [X] at that time.

6. The father moved out of the matrimonial home in March 2007, although the parties reconciled in July 2007.

7. [Y] was born [in] 2008.  The mother told the family consultant that she had a relapse of her condition following his birth.[1] The parents continued to have difficulties in their relationship and in July 2008, when [Y] was just two months old, the father left the matrimonial home and moved in with the paternal grandmother in a unit at [M].  The mother agreed that [X] spent more than half the nights each week at the [M] home. She cared for [Y] in the former matrimonial home.

   [1] Family Report dated 28 May 2013, paragraph 5.

8. In 2009, the parents participated in family counselling.  They reached an agreement that [X] would spend equal time with each of them.  The mother agreed that it was difficult for [X] to settle into the routine and that on occasions she contacted the father who came and took [X] back to his home with the paternal grandmother.  It was suggested to the mother that, as a result, [X] began to spend more than half the time with her father and grandmother.  She conceded that it was “slightly more than fifty percent”.

9. It seems that the parents attended further mediation.  Copy of a parenting plan dated 30 April 2010, apparently signed by each of the parents, was annexed to the father’s affidavit.  It provided for [X] to spend equal time with each of her parents and for [Y] to live primarily with his mother but to spend increasing time with his father, so that by the time he was seven he would also be spending equal time with each of his parents.

10. Under the parenting plan [X] was to spend Tuesday nights with her mother.  However the father began to take her to [omitted] training on Tuesday afternoons and her mother collected her afterwards.  In his affidavit the father said that “over time, it became easier for [X] to stay put on Tuesdays with me, resulting in an agreed change to the pattern of care.”[2] However, the mother’s evidence was that she had disagreed very strongly with [X] remaining overnight with her father on the Tuesday nights.

    [2] Affidavit of Father filed 16 September 2013 at paragraph 44.

11. The father said in his affidavit that in the period 1 July 2009 to 30 June 2013 [X] had spent 60 to 61 per cent of her time with him.  The mother expressed her unhappiness about what she described as the father’s determination to keep [X] with him on the Tuesday nights, although she agreed that eventually a compromise was reached whereby [X] spent time with her on alternate Friday nights rather than each Tuesday night. The result was that [X] then spent eight nights a fortnight with her father and six nights with her mother.  From about April 2011, [Y] has spent about five nights a fortnight with his father.

12. In 2011 the father, who has been a [occupation omitted] on a part time basis since 2002, and full time since 2006, commenced a relationship with Ms B, who is now aged 25.  They plan to marry in 2014.

13. The father filed his Initiating Application on 14 September 2012.  It anticipated a move by him from the eastern suburbs to a location in North West Sydney.

14. The father’s main proposal in his Initiating Application was that both children would reside with him for twelve nights a fortnight during school terms, with some special provision for extra weekend time with the mother for [Y] during his early school years.  [Y] is due to start school in the beginning of 2014.  

15. Order 13 of the interim orders which the father included in his Initiating Application was a proposed order that once the father moved to the North West part of Sydney, [X] was to be enrolled in, or transferred into, a suitable public non-denominational school proximate to the father’s residence.

16. On 24 October 2012, the parties entered into consent orders which provided for [Y] to live with his mother every Monday, Tuesday, Wednesday, Sunday and alternate Saturday nights and with his father every Thursday, Friday and alternate Saturday nights.  [X] was to live with her father every Tuesday, Wednesday, Thursday and alternate Friday and Saturday nights and with her mother every Sunday, Monday and alternate Friday and Saturday nights.  These orders reflected the compromise which the parents had reached following the disagreement about [X] spending Tuesday nights with her mother discussed above.

17. When the mother’s health was reviewed in late 2012, a new lesion was identified. The mother had an acute episode of optic neuritis in early 2013. The evidence of Professor K, the mother’s treating neurologist, however, was that the mother’s condition is stable at this time.

18. On 30 January 2013, the court made an order for a family report to be prepared.

19. The father agreed at hearing that in March 2013 he purchased a house at [omitted] in Sydney’s North West.  A letter was forwarded to the mother’s solicitors proposing that [X] be enrolled at [A] Public School close to the [North West Sydney] residence.  Letter in response from the mother’s solicitor dated 25 March 2013 advised that she did not agree to [X] being enrolled in a different school.[3]

    [3] Mother’s Affidavit filed 6 May 2013, Annexure B.

20. The parties, the children, the paternal grandmother and Ms B attended interviews for the family report on 17 April 2013.

21. On 4 May 2013, the fourth occasion on which the mother made the trip to [North West Sydney] with the children, the father described her as being “absolutely distraught and upset” when she arrived. He agreed that the mother told him that the drive that day had been very stressful for her.  The mother’s evidence was that the high speed driving on the motorway, the traffic, noise and flashing lights made her feel “not clear headed” and that she became distressed.[4] The mother returned by a longer route which she said took her one and a half hours.

    [4] Mother’s Affidavit filed 20 September 2013, paragraph 17.

22. The mother alleged that later that day as she was putting [Y] to bed, he disclosed to her that Ms B had hit him on the face, although the mother said that she could not discern from what she said [Y] told to her, when any such incident may have occurred, or what the context might have been.

23. On 7 May 2013, the mother’s solicitors wrote to the father’s solicitors and referred to their instructions about what the mother alleged [Y] had said on 4 May 2013, and also advised that they had recommended to the mother that she make a report to the local police.  The mother did this but as will be discussed, decided that she did not want [Y] interviewed by the police.

24. The mother accepted an undertaking from the father that [Y] would not be left alone in the care of Ms B and accordingly [Y]’s time with his father then continued.

25. In about the last week of May 2012, the parents agreed that the changeover venue for the children would be the [omitted] Shopping Centre at [M].[5]

    [5] Mother’s Affidavit filed 20 September 2013, paragraph 33.

26. On 5 June 2013 an Independent Children’s Lawyer was appointed and the matter was set down for final hearing.

27. The father continues to work as a [omitted]. Ms B, who is undertaking a PhD at [omitted], also does some [occupation omitted] on a part time casual basis. The mother works as a [omitted]. She moved to part time employment in mid-2012. She has not repartnered.

The Evidence

1. The father relied on his affidavit filed on 14 September 2012 and a further affidavit filed on 16 September 2013. He also relied on the affidavits of Ms B and the paternal grandmother, Ms T both filed on 16 September 2013.

2. The mother relied on her affidavits filed on 23 October 2012, 6 May 2013, 7 May 2013 and 20 September 2013. She also relied on the affidavit of Professor K filed 27 September 2013.

3. Also in evidence was the family report of family consultant, Ms A, dated 28 May 2013.

The Proposals

1. At hearing, the father relied on a minute containing an amended proposal.[6]  

   [6] Exhibit 1.

2. In this minute, the father sought an order that the parents have equal shared parental responsibility for the children, that the children attend [A] Public School in 2014 and that they later attend [C] High School. He proposed that from the beginning of 2014, during school term, the children reside with their mother on Friday, Saturday and Sunday nights at the ends of week 2, 3, 5, 6, 8 and 9 and week 11, if applicable, and otherwise reside with him. The father proposed that if the mother gave notice, the children could spend time with her from after school until 8.00 pm on a Thursday following any weekend when they spent time with him during the school term, on the basis that the mother collected them from their school and return them to him at [A] shops.  Otherwise, during school term, the mother was to collect the children from him at the [A] shops, and he was to collect them from the mother at [E] shopping centre. The proposed a similar changeover arrangement take place during school holidays. The father also proposed orders that sleepovers of the children at the home of a third party only take place with the prior consent of the other parent and that he have “safe custody” of the children’s passports and all official documents.

3. During the hearing, the father further amended this proposal so that from 2014, during school term, he would deliver the children to their mother, and collect them from her at [E] shopping centre. The father also proposed that on the Thursday following a weekend when the children would be with him, the mother, if she gave notice, could collect the children from him at [R] Shopping Centre and spend four hours with them before their return to him.

4. The mother, in her case outline document, also proposed an order for equal shared parental responsibility for the children.  She proposed that the children live with her and that during school term they spend time with their father on alternate weekends from after school on Friday to 6.00 pm on Sunday and every Wednesday afternoon, in the eastern suburbs area, from after school until 7.00 pm.

1. Both parents proposed that school holiday time with the children be shared between them and that there be arrangements for special days.

2. The mother during the hearing provided a document titled “proposed additional orders sought by the respondent mother”[7] in which she proposed that should the father relocate to an area within reasonable proximity to [M] Public School, the school presently attended by [X], the children should spend time with him during school term in each second week from after school on Thursday to the commencement of school on Mondays and in the alternate week from after school on Wednesday to 7.00 pm and for an additional ten weekends a year from after school on Friday to 6.00 pm on Sunday.  Such additional weekends, she proposed, should be nominated by the father at the beginning of each school term.

   [7] Exhibit 2.

The Issues

1. The significant issues in this matter include the following:

   a)The relationship of each of the children with their parents;

   b)[X]’s views and the weight to be given to them;

   c)The parental capacity of each of the parents and in particular their respective capacity to support the relationship of the children with the other parent; and

   d)The mother’s health.

The Relevant Law

1. Section 60CA provides that the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order.

2. Section 60CC sets out the matters which the court must take into account in determining what is in a child’s best interests.

PRIMARY CONSIDERATIONS

Section 60CC(2)(a) The benefit to the children of having a meaningful relationship with both the children’s parents

1. The evidence in this matter, as will be discussed further, is that the children love both their parents, that both parents care for each of the children and can provide each of them with a loving home and stimulating activities.  There is no reason why the court would not find that the children would benefit from a meaningful relationship with each of their parents.

Section 60CC(2)(b) The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. The family consultant reported that the father told her that he believed it was better for the children to spend less time with their mother because he had concerns about their safety and well-being if they continued to spend a substantial amount of time in her care. She reported that he said that the mother could not cope with the care of the children, that she allegedly left [X] to supervise [Y] swimming at the beach, that the children were not well fed by her, that she neglected their care and did not help [X] with her homework or take her to extracurricular activities.[8] At hearing the family consultant agreed that the father expressed these views quite forcefully and with some conviction. The mother denied that she did not properly supervise or care for the children.

   [8] Family Report dated  28 May 2013, at paragraph 16.

2. Ms B, the family consultant said, reiterated the father’s concerns for the children in their mother’s care. The family consultant reported that the paternal grandmother said that she had been [X]’s main carer since she was very young and took on the role because the mother was not capable of caring for [X].

3. At hearing, the father was questioned about his complaints about the mother. He agreed that he had raised a lot of concerns about the mother and her parenting.  He agreed that he had said that the mother could not cope and that there were times when he would characterise her behaviour as neglect of the children. The family consultant spoke with Mr R, the principal of [M] Public School, the school attended by [X]. She reported that he told her that he had no concerns about [X]’s care or her relationships with either parent, although he said she sometimes appeared anxious. He identified [X]’s main concern as the conflict between her parents.[9] The father did not question the account given of Mr R’s comments, although he said that [X] had other more fundamental concerns.

   [9] Family Report dated 28 May 2013, at paragraph 3.

4. When it was observed to the father that the principal was not reported to have identified that [X] was being neglected, the father responded that the principal would not be aware of the circumstances.  When it was further observed to the father that the principal did not identify the mother as unable to cope, the father responded that the principal was not in a position to comment on anything beyond the time [X] spent at the school.  The father was then referred to the account of [X]’s conversation with the family reporter.  He agreed that [X] had had the opportunity to speak to the family consultant away from each of her parents. The father was asked about the family consultant’s observation that [X] did not recount any incidents of being neglected in her mother’s care or being asked to supervise [Y], although she spoke about being made to play with [Y] which she was reported to have said she disliked.[10] When the father was asked whether this account provided him with some comfort, he responded that unfortunately it did not.

   [10] Family Report dated 28 May 2013 at paragraph 34.

5. The father was then asked about the specific complaints he had made to the family consultant about the mother.  He said that he had heard about the beach supervision incident from Ms B who had conveyed a conversation to him and that he could say no more about that. He was then asked about complaints he had made to the family consultant about which he himself had direct knowledge. He said that he was aware that the mother put the children to bed late from discussions with the mother. When asked why he believed that the children were not well fed, he responded that he did not know what the children were being fed and that he probably should not have made that complaint to the family consultant. He said that he had observed uneaten lunch when [X] returned from her mother’s care and that in his judgment the lunch was not nutritious. He added that it was a “small thing”. In relation to homework, which he said was uncompleted when [X] returned from spending time with her mother, the father, when pressed, said that there were a few occasions, but that again he did not want to make a big deal of it.  When he was asked why he had reported all these things to the family consultant, he said he regretted that he had done so.

6. It was the opinion of the family consultant in her report that she did not see support for the concerns that the father had raised that the children’s safety and long term psychological well-being was at risk in their mother’s care. She said she based this on her interviews, including with [X], and the information from the school. This conclusion is supported by the evidence. The father was unable to give evidence of behaviour by the mother which could be characterised as adverse to the children’s safety or psychological well-being.

7. The mother, in her affidavits filed on 7 May 2013 and 20 September 2013, set out her evidence about her claim concerning [Y]’s disclosure to her on 4 May 2013. Both the father and Ms B denied any knowledge of any incident when Ms B hit [Y] or was otherwise abusive to him in any way. The mother’s evidence about what she said [Y] told her will be discussed further in the judgment.

8. The mother, however, at hearing seemed to have no concerns about [Y] being in his father’s care. She said that she had been assured following the alleged incident that [Y] would not be alone with Ms B as someone else would always be present. The father’s evidence was that on 9 May 2013 he gave an undertaking without admissions that [Y] would not be left alone with Ms B and that he or the paternal grandmother would be present.[11]  At hearing the mother did not seek any orders that Ms B not be alone with [Y]. When she was asked when she decided that this was no longer necessary, she said perhaps in the last month or the last two months.  She gave as a reason for her change of mind her observations of the children over time, but was otherwise not very specific when she was pressed about this.

   [11] Father’s affidavit filed 16 September 2013, at paragraph 73.

9. The police records indicate that when the mother first reported the allegations, she told the police that in her discussions with [Y] she could not establish what time, or day, the incident occurred, or “even how the assault happened” and that she observed no injuries on [Y].

10. The mother at hearing confirmed that she told the police that she did not wish an investigation to proceed on the basis of any interview with [Y].  She said she was told that if she did not agree to [Y] being interviewed the matter would just remain as a police record. The police documents in evidence noted that on 16 May 2013 the mother said that she did not believe that it was in [Y]’s best interests to speak with the police and so would not take the matter further. The report concluded that “presently police do not have any supporting evidence to corroborate the commission of an offence, and have therefore rejected the assault incident and will not be taking the matter further.”

11. The mother’s evidence indicates that she does not now hold any concerns for [Y]’s safety in his father’s household. There is no basis on the evidence before it, for the court to find that either of the children needs to be protected from physical or psychological harm, from being subjected to or exposed to, abuse, neglect or family violence.

ADDITIONAL CONSIDERATIONS

Section 60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) the court thinks are relevant to the weight it should give to the child’s views

1. [Y] was too young to express any views to which weight could be given. Further, the family consultant observed that he seemed to have some difficulty understanding or responding to questions.  She thought that his language skills appeared consistent with the reports of his parents that he has a speech delay. The court accepts this evidence. This is not a matter where [Y] is able to express views to which any particular weight can be given.

2. The father in his affidavit said that [X] had clearly expressed “her desire to primarily live with me, Ms B (Ms B) and Ms T (the paternal grandmother) in [North West Sydney]  where she will go to school at [A].”[12] The mother agreed at hearing that this was what [X] had told her.

   [12] Father’s affidavit filed 16 September 2013, at paragraph 55.

3. The family consultant observed that [X] presented as an intelligent and confident young girl who was nine, almost ten, at the time of the interview. She said that initially [X] told her that she did not mind whether she lived with her father or her mother, but that after this [X] made several statements suggesting that she wanted to live with her father.  The family consultant’s opinion was that “[X]’s statements predominantly sounded as though she was repeating things that she had heard said, as she used language and phrases a child her age seems unlikely to use.  For example, [X] said that she thinks her mother is ‘so caught up in the fact that she wants me to be with her that it’s getting in the way of her seeing what’s best for me’.  About the option of living primarily with her father and spending less time with her mother, she said ‘it’s not quantity, it’s quality, it’s not going to change the fact that I still love her’.”[13]

   [13] Family Report dated 28 May 2013 at paragraph 33.

4. The family consultant reported that [X] said that she wanted to change schools because “I like a new challenge”.  She recorded that [X] said that her father had shown her videos about [A] Public School, the primary school which he proposed the children attend and which is near his present home.  The family consultant also noted that [X] described this school as better than her present school, [M] Public School, because “they judge you on what you can do” and the school’s motto is “strive to achieve your best.”

5. [X], the family consultant reported, said that her mother was not being “fair” by making her travel from her father’s home to her school at [M] School and that her father had told her that her mother could travel to see her.

6. When [X] was asked if she had considered the solution that she remain at her current school and live with her mother, with visits with her father, the family consultant reported that [X] responded “I’m attached to Dad and Nanny” but loved her mother “equally.”[14]

   [14] Family Report dated 28 May 2013, at paragraph 34

7. At hearing, the family consultant said that in exploring the reasons for [X]’s views about living with her father, the school being better and not being concerned about changing friends, “a lot of things merged” where [X] was saying “my dad told me this, my dad told me that.” It was her opinion that most children would feel a bit conflicted about such a change to their arrangements, and about upsetting a parent.  [X], however, she said felt quite strongly that her mother was being unfair and that she could drive and see her.

8. The assessment of the family consultant was that while [X] was of an age when her views should be considered, they should not be the sole consideration. Her opinion was that “while [X] may have valid reasons for her views, she cannot be relied upon to understand the full implications of her decisions.  She is also of an age where her views may be subject to adult suggestion and some of [X]’s responses raise concern that Mr. Tarullo may have either intentionally or unintentionally made [X] aware of the parental dispute and influenced her views.”[15]

   [15] Family Report dated 28 May 2013, at paragraph 44.

9. At hearing, the family consultant was quite clear in her evidence that she believed that the father had discussed these matters with [X] and influenced her views.  She said that following her conversations with [X] there was no doubt in her mind about this and that she spoke with the father about it.  The father, she said, asserted that he had only told [X] certain things to calm anxieties that her mother created in the child.[16]

   [16] Family Report dated 28 May 2013, at paragraph 44.

10. The family consultant was questioned about her opinion that the words and phrases used by [X] sounded as if she was repeating what she had heard because she used language that was unlikely to be used by a child of her age. The family consultant acknowledged that she could not unequivocally say that [X] would not use those phrases.  She agreed that she was making a comparison with the language of other children of [X]’s age.

11. When further pressed the family consultant referred to [X] saying “my father told me, my father told me” and that it was quite evident to her that the father had spoken to [X] and told her those things. When it was suggested to the family consultant that all wishes of children were derived partly from other people, she affirmed her opinion and said “it was quite clear that her father had spoken to her about this dispute and about the move.”  She acknowledged that there were lots of reasons why [X] might want to live with her father but that what had concerned her was that her father had spoken to her about the dispute and that lot of her reasoning was based on things that her father had told her and that she seemed to blame her mother for some of her current problems.

12. It was suggested to the family consultant that [X] might have reached that conclusion but that it might have nothing to do with what the father said.  The family consultant responded that she had “definitely got the sense” that [X] formed the idea that the travel was her mother’s fault based on things her father had said to her.  When asked to be specific she responded that [X] had said that it was not her father’s fault, that they were getting “too big” for the apartment and could not afford a house around [M] of the size they needed and that her father had been saying that her mother could find a way to travel.

13. When cross examined the father said that he and the mother had selected [M] Public School as the school [X] should attend.  He agreed that generally the school was a positive experience for [X] and that it had been good for her.  He agreed that he had never raised any significant concerns about the school and that while [X] lived in the area she was positive about the school and that the only time she started to be reluctant to go to the school was after the move to [North West Sydney]. The father agreed that he had discussed with [X] the prospect of attending [A] Public School, that he had shown her a promotional video about the school, that she was aware that he wanted her to go there and that he had told her that it was a better school than [M].  He agreed, too, that he had told her that it was a school where the motto was “strive to achieve your best” and that children from that school move on to go to [C] High School. He agreed that he had told [X] that [C] High School was one of the best non-selective high schools in the State.  He acknowledged, too, that he had told her that he and her mother could not agree about this.

14. The father acknowledged that he probably should not have told [X] that [A] was a better school than [M]. When he was asked whether by “planting all these seeds” he was potentially influencing [X]’s wishes, he insisted that he did not plant seeds in [X] but that rather he was responding to questions she was having. He said that his purpose in showing [X] the video, teaching her the school motto, and talking to her about the school was not to influence her wishes about the school. When further pressed he said he accepted that his actions may have influenced [X]’s views. The father maintained, however, when questioned by counsel for the Independent Children’s Lawyer, that the mother had caused [X] anxiety about the possibility of moving away from the eastern suburbs and changing schools. At hearing he said he thought that the mother was either deliberately instilling some anxiety in [X] about the move or “more likely” projecting her anxieties on to [X] causing [X] to be anxious. He said that the purpose in showing the video was to reassure [X] and that was also the reason for the other discussions he had had with [X] about the school.

15. The father was then asked about the family consultant’s opinion that [X]’s statements predominantly sounded as though she was repeating things she had heard in the father’s household. When it was suggested to him that he had said that the mother was so caught up in the fact that she wanted [X] to be with her that it was getting in the way of her seeing what was best for [X], the father responded “not exactly” although his subsequent attempt to elaborate on this was not really responsive to the question asked. The father agreed that [X]’s comments about quality not quantity reflected comments he had made during the course of the hearing, and said that he had taught [X] “the life lesson about quality versus quantity in several contexts.”

16. The family consultant’s opinion expressed at hearing was that she was not confident that [X] had anxieties which were created by her mother and that it would be natural for her to be anxious about moving schools and spending less time with her other parent.  Such anxieties were referred to by the mother in her evidence.

17. The mother gave evidence of a conversation which she had with [X] in September 2011, which she had set out in an earlier affidavit. The mother’s evidence was that as she was driving [X] to school at the time, [X] asked her if she knew that her father was going move to the north west of Sydney and that it would mean that she would not see her friends or her [omitted] teacher, [name omitted]. The mother said that [X] was distressed and nearly in tears when they had this conversation.

1. The father’s evidence that he had spoken to [X] about the issues as a response to anxieties which the mother had created, needs to be seen in the context of the readiness of the father, and indeed of Ms B and the paternal grandmother, to blame the mother for a range of matters when there is little evidence before the court that there was any reasonable basis for such complaints. The court accepts the evidence of the family consultant that it would be natural for [X] to be anxious about the major changes to her life which resulted from her father’s proposals.

2. At hearing, the family consultant’s evidence was that she was concerned about the impact on [X] of the things which the father had discussed with her relating to the move and her school. The impact, she said, was that [X] had sided with her father in the dispute and perhaps become quite upset with her mother or resentful of her mother because of it. When cross examined by the father’s counsel, if anything, the family consultant’s opinion about this strengthened. She said she was concerned that the father had spoken to [X] about the dispute and she got the sense, that because of things her father had said to her that [X] believed that the travel problem was her mother’s fault.

3. The Full Court in H v W (1995) FLC 92-598 referred to problems which could arise in the ascertainment of the wishes of a child and their interpretation and assessment and explained that the court would,

   “…attach varying degrees of weight to a child’s stated wishes depending, amongst other factors, on the strength and duration of the wishes, their basis and the maturity of the child including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”[17]

   [17] H v W (1995) FLC 92-598, page 21.

4. The evidence of the family consultant was that [X] was of an age where her views may be susceptible to adult suggestion and where she cannot be relied on to understand the full implications of her decision.[18] Her evidence about this was not shaken at hearing and is accepted by the court. [X] is aged ten. Her views need to be taken into account. However, the court accepts the opinion of the family consultant that the father has influenced her views to the extent that she blames her mother for some of her current problems. The court finds that this is a factor which limits the weight which the court attaches to her stated views, in the context of the other significant issues in the matter.

Section 60CC(3)(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

[18] Family Report dated 28 May 2013, at paragraph 44.

1. The family consultant observed that both children appeared to be happy and comfortable with their father, Ms B and their paternal grandmother. She reported that the mother told her that she believed that Mr Tarullo was a good father and that the children had a good relationship with him.

2. In her report, the family consultant observed that [Y] appeared to be “happy and content” with his mother and looked to her for assistance and followed her directions.[19] She expressed the opinion that [Y] appeared to have developed affectionate and nurturing relationships with both parents.[20] The court on the evidence before it finds that both children have a close relationship with their father and also with their paternal grandmother and a positive relationship with Ms B.

   [19] Family Report dated 28 May 2013, at paragraph 37.

   [20] Family Report dated 28 May 2013, at paragraph 42.

3. [X]’s relationship with her mother is more complex, although the family consultant’s evidence at hearing was that both children had good relationships with both parents. The family consultant described [X]’s behaviour during her observations as appearing to be different with her mother than it had been with her father. She described the mother as seeking to engage [Y] and [X] in play together “which [X] was not happy with, but reluctantly agreed to. [X] made it clear that she was not happy making a few forthright comments, such as that she was ‘bored’ and making other gestures such as rolling her eyes at her mother and slumping her head in her hands when waiting for [Y] to take his turn.  She observed that the mother ‘gave [X] gentle encouragement to be patient with [Y] and enjoy the game.’”[21] The family consultant observed that at other times [X] chatted happily with her mother.

   [21] Family Report dated 28 May 2013, at paragraph 37.

4. At hearing the family consultant’s evidence was that she was worried when she observed [X] with her mother that she was being a “little bit rude and disrespectful.” She wondered, she said, whether [X] was behaving in this way for her benefit because [X] would look up at her sometimes when she did or said “those things” and because she did not see the same behaviour when she moved away from the direct observation. 

5. The mother in her affidavit,[22] said that she observed that [X]’s attitude towards her was sometimes ambivalent but improved after they spent time together usually before bedtime when [Y] was asleep when they talked and read books together.  The mother said that [X] was very warm, trusting and emotional at those times. The mother said that she thought that [X] had a very conflicted loyalty issue because she loved both parents, her grandmother and Ms B.

   [22] Mother’s affidavit filed 20 September 2013, at paragraph 43.

6. The opinion of the family consultant in her report was that “despite some signs that [X] was displeased in her mother’s care, no significant issues of rejection or distress were observed and [X] herself described a love and affection for her mother.”[23] At hearing, her evidence was that there were many reasons why [X] might have some difficulties in her relationship with her mother but that generally it seemed to be a good relationship which, in her opinion, “would smooth out” if [X] spent more time with her mother. The court accepts the family consultant’s opinion and finds that [X] generally has a good relationship with her mother.

   [23] Family Report dated 28 May 2013, at paragraph 43.

7. The mother described [X] as being rejecting of [Y] at times. She referred to an incident in the previous June when [X] told her that she was not going to carry a shopping bag home because she, i.e. her mother, treated her like an adult. [X], the mother said, then suggested to her that she should ask [Y] to carry the bag. The mother said that she then observed that [X] pushed and kicked [Y]. The mother said that [X] continued to complain that she expected her to behave like an adult, and expected her to be [Y]’s translator and babysitter, and that her father had said that it was her mother’s job to look after [Y], not hers.[24] The father said that he had observed [X] to be resentful of her brother at times, and that he had told her not to be mean to him and not bait him. He said that he had not seen her kick him.

   [24] Mother’s Affidavit filed 20 September 2013, at paragraph 46.

8. The family consultant did not explicitly express an opinion about the relationship between [X] and her brother in her report, although she referred to her observation of the mother apparently needing to encourage [X] to respond positively towards [Y]. At hearing, the family consultant observed that there seemed to be some problems in the relationship between [Y] and [X]. She thought this could be related to their different care arrangements which, she said, could sometimes cause resentment. This dynamic, she thought, could be reflected in [X]’s relationship with her parents. The family consultant suggested that the resentment siblings sometimes feel on the birth of a younger sibling arising from loss of attention, might be exaggerated with [X].

9. In her report, the family consultant commented that both parents had said it would be preferable for [Y] and [X] to reside together. Her opinion was that,

   …if [Y] and [X] do not live together they may not be able to form a close bond and may miss out on benefitting from the love and support siblings can offer each other now and in later life. When siblings are separated it can also cause difficult dynamics in which children may feel either rejected by one parent or that the other parent favours their sibling. There does not appear to be substantial evidence to warrant separating the care of [Y] and [X] in this matter.[25]

   [25] Family Report dated 28 May 2013, at paragraph 40.

10. The family consultant was not challenged in this opinion and the court finds that a factor which needs to be given some weight in this matter is the importance of the siblings having similar care arrangements. 

Section 60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long‑term issues in relation to the child; to spend time with the child; and to communicate with the child

1. Both parents have sought to be involved in and participate in, making decisions about major long term issues relating to the children.

Section 60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. Neither parent at hearing raised as an issue that the other parent had not fulfilled their obligations to maintain the children.

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

1. The family consultant, as discussed, referred in her report to [Y]’s apparent speech delay.  She observed that while there were no obvious indicators that [Y] was not developing at an age appropriate level, it was difficult to gain an understanding of his development. At hearing, she said that when she observed [Y], she wondered whether he might have some mild developmental delay. She observed that [Y] had completed some tasks which seemed to be relatively advanced for his age but also struggled to answer simple questions.  Her opinion was that his parents may benefit from assistance from his childcare centre and speech therapist in monitoring his development.  

2. In evidence was a report from Ms L, speech pathologist, from the [omitted] Hospital. Ms L’s report dated 27 August 2013, noted that a recent assessment of [Y]’s speech and language skills indicated that he had normally developing receptive language, but mild to moderately disordered expressive language particularly affecting his ability to express complex ideas and relate his personal experiences.  She also reported that [Y]’s social skills were relatively poor and that he had difficulty controlling his feelings at times and had “hit/kicked” in therapy when frustrated by not getting his own way. She said that he could be rigid and obsessive in getting his own way, that he responded well to structure, that he could become anxious and learned best in a stable, structured environment.

3. It was recommended in the report that [Y]’s cognitive skills and behaviour should be assessed to determine if there was an underlying reason for his difficulties with social skills and behaviour.  The report also recommended a referral to the Child and Family East Mental Health Team (C.A.F.E.) at Sydney Children’s Hospital to assist [Y]’s parents manage his anxiety and behaviour and to support the development of his social skills.

4. The family consultant in her report expressed the opinion that [Y] was at an age when “stability and reliance on his primary carers are very important to his development.”  She added that “[Y]’ speech delay perhaps makes it even more important for him to maintain a care arrangement which limits the disruption to his routine.  While [Y] spends a substantial amount of time in Mr Tarullo’s care, the configuration of the time is such that [Y] is used to spending longer periods of time away from Mr Tarullo than he is from Ms Tarullo.”[26]  The family consultant also commented that [Y]’s development was being supported by his attendance at childcare and engagement with speech therapy to which the mother took him.

   [26] Family Report dated 28 May 2013, at paragraph 42.

5. Her assessment was that “Given [Y]’s young age, history of care and developmental needs... it would be more disruptive for [Y] to reduce the amount of time he spends with his mother than to reduce the amount of time he spends with his father.”[27]  At hearing, she was quite definite that it was important for [Y]’s routine, which she identified as the time he spent with his mother, to be maintained.  She said that if [Y] was used to spending more time with his mother it would be a “significant disruption” for him to spend quite a reduced amount of time with her.

   [27] Family Report dated 28 May 2013, at paragraph 42.

6. It was put to the family consultant in cross examination that she had used the word “disruptive” rather than a stronger expression for example, that there would be a “trauma” to him with such reduced time with his mother. The family consultant responded that while at [Y]’s age he should have the foundations of his attachments, because of his circumstances, he might be more vulnerable. She was not further challenged about this.

7. In her report, the family consultant expressed the opinion that [X] was at an age where “she may adjust better to change.”[28] She observed that while the parents disputed [X]’s history of care, that even by the father’s account, she had spent a substantial amount of time in her mother’s care. This is clear also from the evidence before the court.  As discussed, the family consultant had also expressed the opinion that there were not significant issues or distress observed in [X]’s relationship with her mother and that [X] had described love and affection for her mother. She added that despite [X] voicing a preference to live with her father, it was her assessment that “All things being equal, if necessary [X] would be able to adjust to living primarily in either parents care without significant distress, detriment to her development, or detriment to her relationship with the other parent (assuming that the residential parent does not undermine the relationship with the other parent).”[29] She also, in her report, expressed the opinion that [X] was at an age where she was “likely to be compliant with decisions made regarding her care without significant adverse reaction.”[30]

   [28] Family Report dated 28 May 2013, at paragraph 43.

   [29] Family Report dated 28 May 2013, at paragraph 43.

   [30] Family Report dated 28 May 2013, at paragraph 44.

8. When it was suggested to the family consultant by the father’s counsel that [X] would be likely to resent the fact that her wishes had not materialised if orders were made for her to primarily live with her mother, she accepted that that was the case. It was then suggested to the family consultant that if [X] resented the change she would work out that it was what her mother had wanted. The family consultant responded that if [X] was supported to understand why there had been a change she should not remain resentful. She acknowledged that she could not unequivocally say that any such resentment would go away but that from her knowledge of the relationship between [X] and her mother, it should. She confirmed that she meant that the support to which she referred would be from the parent with whom [X] primarily lived, although both parents would need to help her understand the situation and [X]’s adjustment would depend on how her parents facilitated the arrangements.

9. The family consultant recommended that both children live with their mother if their father did not move back to the eastern suburbs or surrounding area.  When cross examined she confirmed that she was aware that the father said that he, and the paternal grandmother, were [X]’s primary carers.  She said she was aware of that so far as [X] was concerned but that she thought it was important that the situation had been different for [Y].  Her opinion was that who the primary carer had been was more fundamental for [Y] than [X]. This, she said, was because he was younger, and at a stage where his attachment to his primary carer was more important to his development and feelings of safety and security than it was for [X], who was older and should be better able to tolerate separations.  She said that while it was not a determinative factor for [Y], it was “a more weighty factor”.  In her recommendation she also placed weight on [Y]’ particular vulnerabilities.

10. The family consultant when cross examined said that if orders were made for [X] to primarily live with her mother she thought that she would be upset.  She said again, however, that it was her opinion that [X] would adjust to the change and that a reason for this opinion arose from her observations when she saw some behaviour by [X] initially indicating, as discussed, some rudeness to her mother, which she did not observe when she later returned when it seemed as if [X] was having a good time with her mother. She affirmed her opinion that [X] would adjust.

11. The father’s counsel submitted that changing [X]’s care arrangements so that she would be in her mother’s primary care, would be traumatic. This, of course, was quite different to the evidence of the family consultant. There was no basis in the evidence that [X] would experience the change as traumatic, although the family consultant did acknowledge that [X] would be likely to be resentful and upset.

12. The proposals of each of the parents would mean that at least in school term, the children would see less of the other parent. This is not ideal given the relationships which the children have with each of their parents, and in [X]’s case too, the relationship she has with her paternal grandmother. The court accepts the evidence of the family consultant and finds that the change in circumstances for [Y] arising from the father’s proposal would be particularly difficult given his age and particular needs. The mother’s proposal would mean a significant change in the circumstances of [X] who, while she has spent significant time with her mother, has spent more time with her father and paternal grandmother and has expressed a wish to predominantly live with them. Nevertheless, despite considerable cross examination, the family consultant maintained her opinion that despite some issues, [X] has a good relationship with her mother and would adjust, with support from her parents. The court accepts this opinion.

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

1. The parents accept that the father’s move, for logistical reasons, makes it impracticable for the current arrangements to continue. This will impact on each of the children being able to maintain the direct contact with each of their parents to which they have been accustomed.  

Section 60CC(3)(f) The capacity of each of the child’s parents and any other person (including grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

1. The family consultant identified as an important consideration the capacity of each of the parents to support the children’s relationship with the other parent. Her opinion was that the mother appeared to be insightful of the need to ensure that the children had a good relationship with their father, Ms B and the paternal grandmother. Her opinion was further that there were indications that the father was not being supportive of the children’s relationship with their mother.[31]

   [31] Family Report dated 28 May 2013, at paragraph 45.

1. The father’s case was that the mother did not always behave as she presented to the family consultant. He referred to email communications between he and the mother which, he said, reflected a readiness for the mother to be negative towards him, the paternal grandmother and Ms B. Further, it was contended that the mother in her allegations about disclosures made by [Y] showed that she would not be able to foster the relationship between the children and their father. It was submitted that the mother had made a false claim of child abuse to prevent the children seeing the father. The father contended that if the mother became the primary carer of the children, there would be no real prospect of him having a meaningful relationship with the children in the long term.[32]

   [32] This was submitted at page 8 of the father’s case outline document which was incorporated by the father’s counsel in his submissions at hearing.

2. In relation to the mother’s parental capacity the father also identified as an issue the mother’s health arising from her diagnosis of multiple sclerosis.

3. The court has found that the father has spoken to [X] and influenced her views about the dispute between her parents. The court has accepted the family consultant’s evidence that because of the things the father has said to her, [X] blames her mother for some of her current problems particularly in relation to her schooling. She believes that the travel problem is her mother’s fault. There can be little doubt that the father has intentionally set out to influence [X]’s views although it is not so certain that he intended that as a result [X] would blame her mother.

4. While the father, at hearing, appeared to retreat from some of the negative comments he had made about the mother to the family consultant, he still expressed quite negative views about the mother at hearing. When asked by counsel for the Independent Children’s Lawyer why he considered that the children should live primarily with him, he contended, in response that in the periods that the mother had an opportunity to contribute to the children’s development, she had not done so. It was only when pressed by the Independent Children’s Lawyer’s counsel that the father identified any positive qualities in the mother. He then said the [X] had told him how her mother reads to her and [Y] had told him that his mother takes him to [activities omitted]. The father said that he had told the children that these were good things the mother did. He said that he believed that the mother loved the children. He said he knew how she looked after them if they were sick when in her care, that she had done good things for [Y] by taking him to activities, that she had organised great things for [X] during her holidays and has always facilitated her relationship with her cousin, [Z], to whom, he said, [X] is very close. This seemed quite inconsistent with the father’s evidence that the mother had not contributed to the children’s development when she had the opportunity to do so.

5. The father however, when further questioned became quite critical of the mother. When it was suggested to him that he would have no doubt that the mother would never expose the children to any form of harm, he responded that in all honesty he could not say that.

6. The family consultant reported that the father also claimed that the mother had influenced [Y] to act negatively towards Ms B and that about twelve months before the interviews, i.e. that is around April 2012, [Y] began to become aggressive to Ms B and made comments such as “you’re not my mum.” The father, she said, attributed this to the mother encouraging [Y] to take “a negative stance” towards Ms B.[33] Both Ms B and the paternal grandmother in their respective affidavits said that [Y]’s behaviour changed for the worse after the mother reduced his time in childcare from three days a week to two days a week. Ms B said that [Y] threw aggressive tantrums, paced the hallway, clenched his fists and gritted his teeth while making angry noises.

   [33] Family Report dated 28 May 2013, at paragraph 21.

7. It is difficult to see these statements as anything other than an attempt to criticise the mother and her care of [Y]. It is difficult to see that they have any reasonable basis. The mother commenced part time work in mid-2012. She gave evidence of the activities she undertook with [Y] when he was at home with her during the day. The evidence also shows that she has been very attentive to [Y]’s needs, including his speech therapy. She has been the parent taking [Y] to his speech therapy every fortnight since May 2011. The father, it seemed, had only recently indicated an intention to become involved in [Y]’s speech therapy.

8. The family consultant said that the father claimed that the mother infantilised [Y] and was seeking a “behavioural diagnosis” for him.[34] The mother, she said, seemed quite insightful about [Y]’s needs. She observed that the father seemed “really critical” of the mother’s opinion that possibly [Y] needed a developmental assessment or a behavioural assessment. The report of the speech pathologist, however, indicated that there was a sound basis for a behavioural assessment of [Y]. Indeed the father, when cross examined, acknowledged that [Y] could have quite aggressive outbursts and at times had behavioural issues. Similar evidence was given by Ms B.

   [34] Family Report dated 28 May 2013, at paragraph 17.

9. There was a sense of entitlement reflected in some of the father’s evidence.  In the context of issues which arose about travel and the location of changeover of the children after the father moved, it was put to the father that he had been advised that the mother did not agree to the children living with him in [North West Sydney].  He responded that he did not think it was a matter for the mother to determine that the children could or could not live with him.  He said that they were living with him on particular days by agreement and by court order and that he did not see how it was up to the mother to “unilaterally decide” that the children could not live with him.

10. The father agreed that when he chose to move to [North West Sydney]  he did not have the mother’s consent.  He was asked then if he had proceeded on the assumption that [X] would still be attending [M] primary school.  He responded that he hoped that the mother “would be reasonable to accommodate change in school at that point but I was mistaken.”  When the father was asked whether in his mind the mother’s lack of consent to a change of school was an example of the mother being unreasonable, he said that was correct.  He said it was a view he continued to hold.  The father agreed that a consequence of his move was that [X] had to travel 42 kilometres to school and that there had been occasions when she had not wanted to attend school and said that it was too far and that she did not want to go. The father agreed that there was an impact on [X] of moving back and forth but added that it “begs the question as to why that impact could not have been alleviated by simply allowing the school change to occur.”

11. Obviously there were advantages for the father in the move.  He is closer to work.  So is Ms B.  The father has a four bedroom home with a garden. It is proximate to good schools. The father said that he could not have afforded similar accommodation in the eastern suburbs, although he acknowledged that some parts of the eastern suburbs areas were more expensive than others. The father and the paternal grandmother, and the children when they lived with him, had been living in a two bedroom unit.

12. The father was asked whether he had considered renting, and letting out his unit.  He said that this was not an affordable option for him.  That may have been the case in the longer term.  However, it was the father who initiated proceedings seeking orders to allow the move in the children’s residence and the change of school. Interim orders were made on 24 October 2012 maintaining the arrangements for the time the children spend with each of their parents. An order had been made for the preparation of a family report. It was in this context that the father decided to purchase his home in north west Sydney in March 2013 and then move there. The father focussed very much on the mother agreeing to the change of school for [X] in circumstances when his move and the request to change [X]’s school can be seen in many ways as pre-emptive of the determination by the court and as having a significant impact on [Y] as well as [X].

13. What can be described as the father’s unilateral action in moving together with his expectation, adopted by [X], that the mother could do so much travelling seems to show little recognition of the stress which could be caused to the mother. This is significant in that the father’s counsel cross examined the mother’s specialist, Professor K, at some length about the prognosis for her illness and the impact which stress could have upon her, and about the significance of the new lesion which had been identified when the mother had an MRI scan in early December 2012.

14. The father was questioned about the mother’s appearance on 4 May 2013 when she drove to his home to collect [Y]. He had described the mother as “absolutely distraught and upset” when she arrived to collect [Y] just before 2.00 pm. He said that he told her that he was not going to bring [Y] out until she calmed down and suggested that she go for a walk and that he would bring [Y] out once he saw that she had calmed down.

15. The father agreed that the mother told him that she found the drive that day very stressful.  The father said that while he saw that the mother was distraught he did not believe that it had any connection to her multiple sclerosis or that the mother had any impediment to her driving. An email sent by the mother to the father at 2.30 pm, presumably after she had left the father’s home to “calm down”, was annexed to the mother’s affidavit.  In the email she said that as she was travelling in high speed in the tunnels “the flashing lights and high speed with heavy traffic and noise caused some vagueness/dizziness symptoms that was [sic] scary. I wanted to pull over but there was no chance.” This was put to the father and he was asked whether it occurred to him that what the mother complained of might be connected to her illness. He responded “no because I believe that she was simply upset, that she had become increasingly upset about making the drive to [North West Sydney].”  He said that at no point until then had the mother said that she was experiencing dizziness or any symptoms and that he would not have insisted that she made the drive had she done so. He said he would have suggested, as he did subsequently, that she could have asked someone to come with her.  The father insisted that it did not occur to him when the mother explained her symptoms that they were symptoms of multiple sclerosis.

16. The father agreed that the mother sent him a further email that day at 4.44 pm confirming that she had arrived home after an hour and half drive and that [Y] had complained the whole way and was exhausted. When the father was asked if he was concerned about that, he said, that of course he was and the “the whole ride home for him must have been miserable” as the mother was obviously still upset.  He added that “of course I’m concerned about poor [Y] having been in that situation where she is just so upset and projecting her unhappiness on poor [Y].”

17. The family consultant’s opinion was that the father had not considered the impact of his move on the children and on their ability to spend frequent and substantial time with both parents. When it was suggested to her that this indicated that the father did not so highly value the children’s relationship with their mother, she agreed that that was the case and said this opinion was based on the father’s difficulty in being able to say anything positive about the mother. She said that she had the same impression from the comments of Ms B and the paternal grandmother and that there seemed to be an idea that the mother was an incompetent parent although she saw no indication that this was the case.

18. The father’s evidence certainly indicated his difficulty in considering the impact of the move on the children, and on the mother, and a readiness to blame the mother when she did not comply with his expectations. It was the submission of counsel for the Independent Children’s Lawyer that the father’s actions in moving his residence reflected an expectation on his part that it was up to the family to fall in line with his assessment with what should happen. There is ample evidence to support this submission. The court accepts the opinion of the family consultant that the father did not highly value the children’s relationship with their mother. The father’s attribution of blame to the mother for anxieties from which he said [X] suffered does not reflect well on his insight into the difficulties for [X] which have been created by his actions.  

19. To the extent that [X] has been caught up in the issues between her parents and blames her mother for difficulties which have arisen, it reflects adversely on the father’s capacity to prioritise her emotional needs and her relationship with her mother over his priorities.

20. The family consultant described the mother as polite and thoughtful in her presentation at the interview for the family report. She referred to the mother genuinely presenting the father and Ms B in a positive light and maintained this opinion at hearing although she recognised that there had been some events since then. Her opinion was that the mother had the ability to support [X]’s relationship with her father and indeed the relationship of both children with him. It was the father’s case that while the mother may present in this way, she could behave quite differently.  

21. The mother was asked about a number of emails she had sent to the father. The first dated 16 November 2011 and related to the father bringing Ms B to an awards ceremony where a painting of [X]’s was on display. The mother’s evidence was that it was a special day for [X]’s [omitted] work and that only a small number of people who included the principal, a senior teacher, children who received awards and their immediate family, had been invited to attend.  She said so far as she was aware at the time, the father was in a relatively new relationship and that he had insisted on her not attending the event because he was bringing his new partner.  The mother said that she thought it was inappropriate for the father to bring his new partner and introduce her to the principal because of the nature of the event which was for immediate family members.  She said it was an awkward situation and she wanted to explain how she felt.

22. In her email to the father the mother said that bringing Ms B to the event was “a bizarre idea”.  She said that she intended to be nice to her “but it was hard as the setting was really inappropriate” and that “having said that she does come across as sweet, I just hope she is genuine as I sensed some playing in her behaviour but hope I’m wrong about it.” While the mother expressed discomfort in the email it is difficult in the circumstances to characterise its contents as particularly offensive.

23. The mother was asked about a series of emails or SMS’s sent in December 2011. On 7 December 2011 the father had sent an email to the mother saying that [Y] could not sleep at his home that night because Ms B was sick and he had to look after her. The mother responded that the father needed to pick up [Y] and that she could not help him that night. She messaged again saying “What, changing nappies? She is a big girl... I informed you about this appointment earlier, can’t change it, sorry.”  She then set a further email referring to a conversation she had had with [Y] the previous night when he described himself and his parents as three fish in the Nemo movie.  The mother said that she would never forgive the father for what he had “stolen” from [Y]. She said that the father did not “give a shit” about their son and what was important for him.  She asked if he did not care, why would a twenty five year old “chick” of his, and then asked if he did not have to look after his “other baby” i.e. “the grown up retarded one.”

24. The mother agreed that there had been a degree of sarcasm in her reference to Ms B.  She said that she felt very confronted by the father saying that he would look after Ms B as opposed to [Y].  She said that she had a medical appointment for which she had waited for a few months. She agreed that she could have communicated that without the sarcasm towards the father’s partner and acknowledged that some of the things she said were designed to provoke.  She said that she would not communicate like this again and would express herself very differently.

25. The parents then had a further exchange in March 2012.  This related to the dispute about the father taking [X] to [activity omitted] on Tuesdays and [X] being in her mother’s care on Tuesday nights.  The father told the mother that [X] had not wanted to go home with her and that she should let [X] stay if that was what she wanted.

26. The mother responded to the father that she knew that once [X] was under her grandmother’s aura she became “zombied and clingy and messed up.”  She added that [X] “was perfectly happy here after 24 hour adjustment and once that gets interrupted, the whole fucking pain in the ass starts again. Bad idea with all those multiple changeovers.”

27. The mother said she wanted to apologise for the offensive language which she said reflected her anger and aggravation.  She agreed that the paternal grandmother loved the children. She said that she had never not acknowledged her great contribution in looking after the children, but with all of that the grandmother, she said, perhaps unconsciously or consciously had undermined her.  This was similar to comments made by the mother to the family consultant about the grandmother.

28. When specifically asked about the “aura”, the mother said that it had been her consistent observation from early years that [X]’s behaviour was different in her grandmother’s presence and that when [X] came to her after being with her grandmother she wore “this mentality of rejection until it, sort of, wears off.”  The mother said that she was not suggesting that [X] should not be cared for by her grandmother, that she would be happy for [X] to continue to have a lot of time with her, but that there were certain ways the grandmother “conveyed” her care for [X] which affected the child.

29. The family consultant was asked whether she had identified that the mother had said any offensive things about the father or about the father’s partner or suggested anything derogatory about the paternal grandmother. She said that at interview the mother was positive about the father and Ms B although there may have been some criticism relating to the grandmother. She said that the mother appeared to be very insightful about the children’s needs and understood the impact her actions would have on the children.  

30. When the family consultant was asked about a parent denigrating the other parent, or close family members of that parent, she queried whether such denigration was alleged to have occurred in the presence of the children. She expressed the opinion that while parents should obviously not denigrate each other, the bad thing for the children was if they were made aware of such thoughts or feelings or words or actions.

31. It was suggested to the family consultant that the situation could be more complicated than that in that it would be difficult to expect a parent who despised the other parent to support that parent’s relationship with children.  The family consultant conceded that she would be worried about such negative feelings overflowing.  When she was asked about parents hiding such feelings from her, she said in the court context she almost expected that to be the case.  She agreed that parents would be “putting their best foot forward.”  However, in cross examination she maintained her opinion that she could not see any evidence in the children in this matter that the mother had spoken negatively to them about their father.

1. The mother was then asked by the father’s counsel about the effect of stress on her condition. She responded that it was not good in the sense that when the father filed his application in October 2012 she went through “perhaps exacerbation of MS over about two weeks at the end of October.” When it was suggested to the mother that the stress which affected her was not confined to the proceedings, she responded that she thought that stress related to the proceedings “perhaps has been the peak of my experience having MS for about nine years.” The mother was asked whether other things which stressed her had exacerbated her symptoms. She responded that to the best of her knowledge stress was only one of the contributors and that she did not know whether specifically it was stress which exacerbated her MS. It was then suggested to her that she was not prepared to concede that stress made her symptoms worse and the mother responded that of course she saw that it made symptoms worse, but that to the best of her knowledge there was a difference between ongoing symptoms and exacerbation.

2. In evidence was an affidavit of Professor K. Professor K is a highly qualified consultant neurologist/neurophysiologist who presently [qualifications and workplaces omitted]. Professor K is the mother’s treating neurologist and has been treating her in relation to her multiple sclerosis since 2005. Annexed to his affidavit was a letter dated 24 May 2013 which he had written at the mother’s request regarding the mother’s multiple sclerosis symptoms and, in particular, the effect on her if she was required to travel long distances and concentrate for long periods of time.

3. In the letter, Professor K said that as a result of her multiple sclerosis, the mother may experience symptoms such as balance problems and dizziness from time to time. He expressed the opinion that this “by necessity requires alteration of some activities which may aggravate her symptoms, including avoidance of long driving and periods of excessive concentration.” Professor K continued that the mother had also been suffering symptoms of right sided headache which he said, tended to become worse “with prolonged periods of work, concentration and driving.” He said that he understood the mother was required to drive from her home in [T] to [North West Sydney]  and advised “that due to her symptoms of MS, the long distance driving or other activities that require excessive concentration best be avoided.”

4. A report dated 23 September 2013 provided by Professor K in response to a letter dated 11 September 2013 from the mother’s solicitors, was also annexed to his affidavit. In the report Professor K said that the mother regularly attended [omitted] Hospital where she was under his care. He said that initially the mother was prescribed immunomodulatory treatment in the early course of her disease, but that over time she had not required regular maintenance therapy and her disease had been relatively quiescent. Her most recent treatment, he said, occurred following an acute episode of optic neuritis in early 2013 for which the mother received “a 3-day pulse of intravenous methylprednisolone, with good effect.” In relation to his prognosis Professor K’s observed that the mother had not required hospitalisation since her original diagnosis in 2005 and had continued her employment. He said that her most recent structural imaging confirmed that cerebral volumes remain preserved, without any acute lesions and that as such her prognosis would be regarded as excellent. His opinion was that in terms of her diagnosis of multiple sclerosis, there would be no issue which would affect the mother’s capacity to care for the children.

5. The father’s counsel asked Professor K whether unpredictability was a key feature of multiple sclerosis. Professor K responded that it was accepted that patients may experience a relapse in their condition, but said that he could not predict the future. He agreed that in multiple sclerosis, the immune system attacked the covering which surrounded the nerves in the brain and the spinal cord which led to an inflammation and injury to the myelin sheath that could result in multiple areas of scarring which eventually could slow or block nerve signals which controlled vision, muscle co-ordination, strength and sensation.

6. Professor K agreed that the most common symptoms of the disease were abnormal sensory feeling, such as numbness, tingling or prickling pain. He said that people with multiple sclerosis may experience muscle weakness in one or more limbs and may have difficulty with co-ordination or balance and that other symptoms may be muscle stiffness, spasms, fatigue, blurred or double vision, difficulty concentrating and depression. He was asked if the symptoms could be very debilitating and said that if the disease progressed they could be, but that there were many patients in whom multiple sclerosis did not progress and that there were benign forms of the disease and more aggressive forms.

7. When he was asked by the father’s counsel whether finding a new lesion might be an indication that a form of multiple sclerosis might be aggressive, Professor K responded that that may be an indication. He said that typically in a very aggressive form of the disease there would be multiple lesions. When asked if finding a new lesion might indicate that the disease was not stable, Professor K responded that it was not so straightforward and that one lesion may appear as a result of doing a scan but may never have any clinical effect or affect on function. He was asked whether if he had brought such a lesion to the attention of a patient’s general practitioner, that might indicate that it was considered relevant and significant. Professor K said that in that case he might simply be reporting what the scan had actually said.

8. Professor K was then asked about a letter he had written to the mother’s general practitioner, Dr K, on 3 December 2012 following review of the mother on that day. In the letter he had reported that she “has recently been troubled by tingling affecting both lower limbs.” The letter continued “She called me about this and I suggested a period of rest and further structural imaging. There has been subsequent improvement.” The letter also reported that the mother had recently undergone a progress MRI scan of the brain and spinal cord.
   Professor K said that the two things which were looked for in a scan were volume, the preservation of the brain to stop disability, and acute lesions. In the letter he said the scan “confirmed the previous spinal lesions, which are unchanged. there was no cord enhancement. On the cerebral images there was evidence of a new lesion involving the left parietal lobe. Cerebral volume remained preserved.”  

9. Professor K, in the letter, stated that he had explained these changes to the mother and given her an overview of current treatments for multiple sclerosis and that as it stood the mother was reluctant to commence any regular immunomodulatory treatment and would prefer to leave things unchanged for the time being. He concluded his letter by saying that he would be happy to continue to review the mother on a six monthly basis or earlier as required. When questioned, Professor K explained that the purpose of immunomodulatory treatment was to induce, enhance or suppress an immune response and was an attempt to reduce the chance of a further relapse. Professor K did not accept that he had recommended that the mother undertake immunomodulatory treatment. He said that he thought that the mother felt that her disease was relatively stable and that the immunomodulatory treatment required second day injections which sometimes patients preferred not to undertake and that in the case of someone who has relatively stable disease, it might not be the case that a treating doctor would want to push the patient into therapy.

10. Professor K agreed that the new lesion to which he referred in his 3 December 2012 letter to the mother’s general practitioner was consistent with the symptoms that mother had reported to him. He said that nevertheless he described the mother’s condition as stable. He agreed that he had not referred to the new lesion or the symptoms reported towards the end of 2012 in his report dated 23 September 2013. He said that he understood that the purpose of the report was to provide an overview of where he thought the patient was at this time and that that was what he thought he had done. There had of course been a further review of the mother in mid-2013. Professor K in his report of 23 September had referred to his last review of her having been conducted on 16 July 2013.

11. When it was suggested to Professor K by the father’s counsel that it was more likely than not that there would be a progression of the disease in every patient, he responded that that was not accepted in every patient, although that on a population study it was more likely that patients will progress. It was accepted, he said, that there was currently no cure for multiple sclerosis, and that treatments were aimed to stop progression of the disease in those individuals where the disease is progressing. He said that there were different treatments, that the first one might be steroids which were aimed to reduce the severity and length of time of “a flare up”, and that the other treatment, immunomodulatory treatment, was aimed to either reduce the frequency of the attacks or to stop them.

12. Professor K was asked about the opinion expressed in his 23 September 2013 report that in terms of the mother’s diagnosis of multiple sclerosis “there would be no issue that would affect her capacity to care for her children.” He said that when he expressed that opinion he was thinking from a neurological perspective in terms of multiple sclerosis. When further pressed he said that he would imagine that the mother should be capable from her multiple sclerosis perspective of looking after the children full time.

13. Professor K was asked if the symptoms of multiple sclerosis were exacerbated by stress and responded that they may potentially be in certain individuals.

14. The father’s counsel focused in his cross examination of Professor K on the progressive nature of multiple sclerosis. His cross examination could be seen as a challenge to the Professor’s opinion about the present stability of the mother’s condition.

15. The father’s counsel submitted that the impression from Professor K’s report was that there had been no changes in the mother’s condition for a long time. He submitted that his report could be subject to criticism because in fact Professor K had written to the mother’s general practitioner referring to the mother contacting him on 3 December 2012 complaining of symptoms and that a subsequent scan showed a new lesion. Further, he said, Professor K commented that following an overview of treatments, the mother was reluctant to commence any regular immunomodulatory treatment.

16. Professor K in his report referred to the mother’s acute episode of optic neuritis and the treatment she had received for that. While the letter referred to an overview of treatment, it did not say that immunomodulatory treatment was recommended to the mother. Indeed he confirmed this when cross examined. Professor K had reviewed the mother again in July 2013, prior to the report of 23 September 2013 and said that her neurological examination at the time was entirely normal. Though cross examined at some length, he maintained his opinion that while there cannot be certainty about the mother’s condition into the future the mother’s condition was relatively stable. There is no reason to question Professor K’s evidence about the mother’s present health status.

17. In submissions the father’s counsel also referred to the issue of the impact of stress on the mother’s condition. He contended that
    Professor K had accepted that the mother’s conditions was exacerbated by stress, although what was said was more qualified than this. The father’s counsel contended that it was “undoubtedly going to be a challenge” for the mother to have to deal with full-time care of the children, or majority care of the children, especially in circumstances where he said he thought that it was likely that the court would find that there would be some resistance from [X]. He contended that what should be factored into the court’s consideration was the potential for the mother to have a further development in her illness “which regrettably would render her not capable of continuing as the primary carer.”

18. If the father’s case is seen to rely on a questioning of the mother’s future parental capacity because of the potential detrimental effect of stress on her illness, it seems somewhat difficult for the father to also maintain as he did, that he saw no connection between what he described as the mother appearing absolutely distraught and upset following her drive through the tunnel and expressway on 4 May 2013, and any connection with multiple sclerosis symptoms. The mother has alleged that the father’s actions have created stress for her. It is puzzling that the father did not indicate that he saw this as a factor he might recognise and take into account in an insightful way in circumstances where the mother and her treating neurologist were cross examined, presumably on his instructions, about the adverse impact of stress on multiple sclerosis symptoms.

19. The family consultant observed that the mother may need assistance to care for the children in the future if her health declined. Her opinion was that the mother’s health would also have an impact on the children’s psychological wellbeing which needed to be considered when deciding care arrangements. She commented in her report, if the mother’s health declined in the future “and the children have not been supported to spend ample time with her now, they may harbor resentments or regret in the future about not having been allowed to spend more time with her when she was well. It would benefit the children greatly to spend as much time with their mother while she is fit and able.”[39] She was not challenged in this opinion.

    [39] Family Report dated 28 May 2013, at paragraph 46.

20. The mother has not set out any proposal for the future assistance she might need, or what might be available to her, in caring for the children should her health deteriorate. There is no reason why the mother should have done this on the basis of the evidence of Professor K which the court has accepted. The mother said that when the children were living with her she took [X] to school and collected her from school in the afternoon. She said that if she was unable to collect [X] she would ask her sister, and sometimes her father, to collect her from time to time and her father from time to time would also drop [Y] at day care and collect him.[40] She referred to being able to call on her sister for assistance.

    [40] Mother’s Affidavit filed 20 September 2013, at paragraph 12.

21. Both parents love the children and have an interest in their education and a capacity to provide them with appropriate activities. The mother agreed that the father had taken [X] to various extracurricular activities, in particular [omitted]. The mother has shown a particular insight into [Y]’s need and the ability to ensure that he has the speech therapy he requires. The family consultant’s evidence was that the mother managed the situation well when [X] was being somewhat rude and disrespectful.

22. The court did not find that the mother made false allegations about what [Y] had said to her about Ms B. The mother has been angry at times because of her view of some actions of the father. There is no evidence, however, that she has involved the children in these feelings, although as will be discussed, there are times when she has prioritised her own feelings.  The court accepts the family consultant’s evidence that the mother will foster the relationship between the children and their father.

23. The court has found that the father’s actions have not supported the children’s relationship with their mother and that to the extent that [X] has been caught up in the issues between her parents and blames her mother for difficulties which have arisen, it reflects adversely on the father’s capacity to prioritise her emotional needs and her relationship with her mother over his priorities.

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

1. These issues have been discussed in the judgment.

Section 60CC(3)(h) Child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right

1. This is not a relevant consideration in the matter.

Section 60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. Many of the relevant factors have been discussed in the context of the consideration of parental capacity. There is, however, one incident which tends to reflect adversely on both parents and their attitude to the responsibilities of parenthood.

2. The evidence was that the mother had purchased a diary for [X] and that in mid-September 2012 she read a section of the diary in which [X] was writing about Ms B. The mother included in the affidavit which she swore on 20 September 2013 the passage from the diary which commenced “I am starting to think that [Ms B] does not want me around.” Subsequently [X] became aware that the mother had read her diary and the father purchased her a new diary with a lock which [X] took with her on the next occasion she spent time with her mother when she also wore the key to the new diary around her neck.

3. The father’s evidence was that [X] had not been informed that a passage from the diary had been included in her mother’s affidavit. [X], he said, came to that conclusion during the course of a conversation she had with Ms B. The father agreed that [X] would not have known but for the conversation taking place with Ms B. His evidence was that he agreed to Ms B talking to [X] about the topic contained in the passage in the diary. [X], he said, was subsequently upset when she discovered that her mother had read her diary because she felt that her privacy had been breached. He said that he and [X] the next day went to purchase a locked diary. He agreed that that sent a message that [X] could not trust her mother but asserted that that was not the message he wanted to send.  

4. Ms B agreed that the father had shown her the mother’s affidavit containing the passage from [X]’s diary and that the father spoke with her about that passage. Ms B said that it was her poor word choice in the conversation she had with [X] that led to [X] “putting the pieces together” about her mother having read her diary. She said she regretted the conversation she had had with [X].

5. The mother’s evidence was that [X] initially behaved in an avoidant way towards her on the next occasion she collected her when the mother’s niece, [Z], was also present. The mother said that later in the day [X] asked her if she had read her diary and the mother apologised and attempted to explain why she had done so. [X], she said, then asked “But why did you use it against me?”, and that when the mother said she had not used it against her, [X] responded “But I know you used it against me in the important document.” When asked what she meant, [X], she said, responded “When I was at daddy’ s home and I was chatting with [Ms B] she said it came up.” [X], the mother said, was reluctant to discuss this further.

6. The mother when asked whether she regretted quoting her daughter’s diary in her affidavit, said she had not foreseen it would create such a problem affecting her daughter. The mother said that she had been reluctant to quote [X]’s diary but explained that she had acted on the basis that it was “a significant issue still to be flagged” in the affidavit. She said that [X] was always very positive about Ms B so she was very surprised to read what she had written in her diary. This seems to indicate a greater focus by the mother on some possible advantage to her case rather than how she might address any ambivalent feelings expressed by [X] towards Ms B in the diary.

1. That [X], who is only ten, became aware that the diary was referred to in the mother’s documents, does not reflect well on the father, or Ms B. The fact that the father then took [X] to purchase a diary with a lock again shows little insight into the possible impact on [X]’s relationship with her mother. The evidence indicates that both parents at times have focussed more on the conflict between them than on their responsibilities as parents.

Section 60CC(3)(j) Any family violence involving the child or a member of the child’s family

1. There is no evidence in this matter of family violence involving the children or members of their family.

Section 60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family any relevant inferences that can be drawn from the order, taking into account the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; any other relevant matter

1. There are no family violence orders in this matter.

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

1. It will be preferable to make the order least likely to lead to the institution of further proceedings. [X] in particular is aware of the proceedings. Her school principal has referred to her level of anxiety.

Section 60CC(3)(m) Any other fact or circumstance that the court thinks is relevant

1. Relevant considerations have been discussed in the judgment.

Parental responsibility

1. Section 61DA(1) states that when making a parenting order in relation to a child the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. Section 61DA(4) provides that the presumption may be rebutted if there is evidence which satisfies the court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them.

3. Both parents seek an order for equal shared parental responsibility. There is no factor which would suggest that the presumption would not apply. There is no evidence before the court that would satisfy that it would not be in the best interests of the children for there to be an order for their parents to have equal shared parental responsibility for them. Both parents seek such an order and it is an order which the court proposes to make.

4. Given that there will be an order for equal shared parental responsibility, as explained in Goode & Goode [2006] FamCA 1346 the Court is required to consider the provisions of section 65DAA(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.

5. Section 65DAA(2) provides that if an order is made for equal shared parental responsibility and the court does not make an order for the children to spend equal time with each of the parties, the court must consider whether the children spending significant and substantial time with each of their parents would be in their best interests and if that would be reasonably practicable.

6. Section 65DAA(3) provides that 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.

7. Section 65DAA(5) which sets out what the court must have regard to in considering what is reasonably practicable, is as follows:

   In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

   (a) how far apart the parents live from each other; and

   (b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d) the impact that an arrangement of that kind would have on the child; and

   (e) such other matters as the court considers relevant.

8. The High Court in MRR & GR [2010] HCA 4 has confirmed that the court must consider each of these questions, that is, is it in the child’s best interests and is it reasonably practicable before an order can be made for equal time or for substantial and significant time.

9. Before the father moved there was a shared care arrangement between the parents in relation to the children. It appears that this worked reasonably well for the children who were able to spend a lot of time with each of their parents and be involved in various activities in their local area.

10. The children have a close relationship with their parents and it is likely that it would have been in the best interests of the children, at least when [Y] was older, and as the parents had in fact agreed at one point, to introduce an equal time arrangement. The court must also consider whether such an arrangement would be reasonably practicable. Because of the distance the parents now live from each other it would not be reasonably practicable.

11. If the court does not make an order for equal time, the court is required to consider whether making an order for substantial and significant time would be in the best interests of the children.

12. There can be little doubt that an order for the children to spend substantial and significant time with the parents would be in their best interests. Such an order would be somewhat similar to the shared care arrangement which existed before the father moved. Again, however it would not be reasonably practicable because of the distance between the parents.

13. The father’s proposal provides essentially that the children would spend six weekends out of a school term of usually ten weeks with their mother and half the school holidays. He also proposed that if on the alternate Thursday the mother could travel to the [North West Sydney] area, she could spend a few hours with the children after school. While the father initially proposed in his minute that the mother collect the children from the school he proposed they attend at 3.00 pm on the Friday, in his amended minute, he proposed that he would deliver them to her at [E] shopping centre and that she could collect them from him at [R] shopping centre on the alternate Thursdays to spend time with them for a few hours.

14. The father’s order did not propose for the purpose of weekend time, that the children be collected by their mother from the school to which he proposed to send them. It would be difficult to see how it would be viable in the circumstances to expect that the mother could undertake this travel. The proposal for her to spend a few hours with the children after school collecting them at [R], is also impracticable given the distance involved. It would be most unlikely that the mother would be able to take up this proposal.

15. Similarly, the mother’s proposal should the father continue to live in north west Sydney, did not provide for the children to spend substantial and significant time with their father. In the circumstances of this matter, arrangements which would fall within the definition of substantial and significant are not logistically feasible and so are not reasonably practicable.

16. The father’s proposal was that both children live with him and attend [A] school, which [Y] would commence when he starts Kindergarten in 2014, and that they would spend time with their mother as set out above. The reality must be that they would be likely to spend less time with their mother for the reasons set out above.

17. The mother’s proposal was that the children live with her and spend time with their father on alternate weekends from after school on Friday to 6.00 pm on Sunday, and each Wednesday afternoon from after school to 7.00 pm. She proposed additional time if the father relocated to an area in reasonable proximity to [M] Public School. The father was clear in his evidence that he did not propose to relocate back to the eastern suburbs.

18. The Independent Children’s Lawyer proposed that the children spend time with their father from after school on Friday to before school on Monday each alternate weekend as well as the half school holidays proposed by both parents.

19. The issue then is whether the children should predominantly live with their father at [North West Sydney]  or predominantly with their mother at [T] which would mean that [X] would continue at the school she has attended since she commenced school.

20. The court has found that the children have a good relationship with each of their parents and their paternal grandmother although there are some difficulties in [X]’s relationship with her mother which have been discussed in the judgment. [X]’s views are that she would prefer to live with her father and attend [A] Public School. In considering the weight to be given the [X]’s views the court has accepted the evidence of the family consultant that [X] is of an age where her views may be susceptible to adult suggestion and where she cannot be relied on to understand the full implications of her decision. Further the court has found that the father has clearly influenced [X]’s views and that as a result of what the father has said to [X], she believed that the mother was to blame in problems associated with the travel she was required to make to her old school, and that the mother should be able to travel to where the father has moved. The court has found for the reasons set out in the judgment, that limited weight should be placed on [X]’s stated views in the context of the significant factors which the court is required to take into account.

21. [Y] has a good relationship with all the adults but is accustomed to living primarily with his mother who has particularly provided for his special needs. [Y] is still very young and has certain vulnerabilities. The court accepted the evidence that he will benefit from routine, in particular his routine living predominantly with his mother. The court accepted the evidence of the family consultant that a change for [Y] to predominantly live with his father would be particularly difficult for him. There was no submission that the children should be separated. The family consultant’s evidence was that adverse consequences may have already arisen from the fact that each child has spent more time in different households.

22. The family consultant acknowledged that [X] was likely to be upset and resentful if an order was made that she live predominantly with her mother. Counsel for the Independent Children’s Lawyer referred to the opinion of the family consultant that [X] was of an age where she was likely to be compliant with any decision made regarding her care without significant adverse reaction. She indicated that that view was supported and that it was reflected in the Independent Children’s Lawyer’s proposed orders. The court has accepted the family consultant’s evidence and found that despite some issues [X] has with her mother, she would adjust to primarily living with her, with the support of her parents.

23. In relation to parental capacity, the court has found that even before the allegations which arose on 4 May 2013, the father, Ms B and the paternal grandmother were very critical of the mother. They made serious allegations about her to the family consultant which, as the Independent Children’s Lawyer submitted, were not substantiated at hearing. The father’s negativity towards the mother and his apparent inability to recognise the impact of his move on the children’s relationship with their mother, and the importance of this relationship for them, brings into question some aspects of his parental capacity. This, of course, has been aggravated by his conversations with [X] about the proceedings which have led her to feel that her mother is to blame for some of her problems.

24. Although the mother has sent angry emails to the father, the court has not found that, in contrast to the father, she involved either of the children in her views. The court has found that the father’s actions have not supported the children’s relationship with their mother. This is an important consideration in considering the best interests of the children. The court finds that the children’s relationship with their father will be fostered if they live with their mother but that it is less likely that their relationship with their mother will be fostered if they live with their father.

25. For these reasons the court considers that it is in the best interests of the children that they should primarily live with their mother. The court proposes to make orders similar to those proposed by the Independent Children’s Lawyer which will provide that during school terms the children will spend time with their father each alternate weekend from after school on Friday to before school on Monday and that the children will spend equal time with each parent during school holidays.

26. The court gave the parties the opportunity to make submissions about where changeover of the children should occur. The Independent Children’s Lawyer proposed [S]. It was put to the court in submissions that the father suggested [R], which is some significant distance from where the mother lives. There was not really a considered alternative put forward by either of the parties about an appropriate location for changeover. In these circumstances the court will provide for changeover as proposed by the Independent Children’s Lawyer, unless otherwise agreed by the parents.

27. The Independent Children’s Lawyer proposed orders that [Y] undergo full developmental assessment by a paediatrician. It is prudent to make these orders to overcome the possibility that the parents may not agree about the particular paediatrician.

28. The Independent Children’s Lawyer proposed orders including an order for costs. It appeared that no submissions were made about this at the hearing of the matter and in these circumstances the court does not propose to make this order at this time although the Independent Children’s Lawyer is at liberty to list the matter in relation to costs.

I certify that the preceding two hundred and twenty-four (224) paragraphs are a true copy of the reasons for judgment of Judge Walker

Associate:  

Date:  19 December 2013