Thorn and Jennings
[2008] FMCAfam 1330
•11 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THORN & JENNINGS | [2008] FMCAfam 1330 |
| FAMILY LAW – Parenting orders – family violence – consideration of equal shared care notwithstanding presumption of shared parental responsibility rebutted. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| T & N (2004) 31 Fam LR 281 |
| Applicant: | MS THORN |
| Respondent: | MR JENNINGS |
| File Number: | NCM 99 of 2003 |
| Judgment of: | Lapthorn FM |
| Hearing dates: | 30 &, 31 January, 3 & 30 July 2008 |
| Date of Last Submission: | 30 July 2008 |
| Delivered at: | Newcastle |
| Delivered on: | 11 December 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented |
| Solicitors for the Respondent: | Self Represented |
| Counsel for the Independent Children’s Lawyer: | Mr Bates |
| Solicitors for the Independent Children’s Lawyer: | Ms Wooi |
ORDERS
The mother have sole parental responsibility for the children [X] born in 1996 and [Y] born in 1998
The children live with the mother at all times they are not spending time with the father in accordance with these orders
The children spend time with the father as follows:
(a)Each alternate week during school terms commencing from the conclusion of school Wednesday and concluding at the commencement of school Monday immediately following commencing on the first Wednesday of each school term;
(b)During the second week of the school holidays at the end of term 2 each year commencing 10am on the second Saturday of the holidays and concluding on the children’s first day of school attendance in term 3;
(c)During first week of the school holidays at the end of term 3 commencing from the conclusion of school on the last day of the school term and concluding at 10am on the second Saturday of the holidays;
(d)For one half of each of the Easter and Christmas school holidays being the first half in odd numbered years and the second half in even numbered years;
(e)For the purposes of defining the relevant times during the Easter and Christmas school holidays the following shall apply:
(i)The first half of the holidays shall be from the conclusion of school on the last day of the school term until 10am on the midpoint day of the holidays;
(ii)The second half of the holidays shall be from 10am on the midpoint day until the children’s attendance at school on the first day of the new term.
(f)The time the children spend with the father shall be suspended in odd numbered years from 3pm Christmas day until 5pm Boxing Day.
In the event of a changeover not taking place at the children’s school the time the children spend with the father shall be implemented by the mother or her nominee delivering the children to the father or his nominee at the McDonalds Restaurant, [omitted] at the commencement of the children’s time with the father and the father or his nominee delivering the children to the mother or her nominee at the McDonalds Restaurant, [omitted] at the conclusion of the time the children spend with the father.
Notwithstanding Order (1) herein the mother shall facilitate the children to participate with a full commitment in the activities in which they are engaged provided that in the event of the father registering either child in sports activities in the future he shall inform the mother in writing of his intention to do so and provide the mother at the time or as soon as practicable with either a draw or such other information necessary to inform the mother of the details of the children’s commitments and in the event that the mother is unable due to work commitments to personally take or organise another person to take a child or the children to such activity she is to give the father 48 hours notice of such inability and provide him with an opportunity to take the children in her stead.
The parent registering the child for any sporting or extra curricular activity shall be responsible for payment of the cost of the activity.
That each party have liberal telephone communication with the children.
That each party provide to the other their landline telephone number and keep the other informed of any changes in that number.
This order is sufficient authority for the father to obtain from any medical practitioner or other health professional any information as to the children’s health and/or treatment.
This order is sufficient authority for the father to obtain from the school at which either child attends such information as he may request in relation to the child’s behaviour and progress and to be notified of all significant events at the child’s school.
The parent having the care of the children inform the other parent in the event of the children or either of them becoming ill or being injured requiring admission to hospital or treatment at the emergency department of a hospital as soon as practicable and in any event within 24 hours of such admission or treatment.
Each party inform the other of any change in their residential address 14 days prior to such change.
Each parent is restrained from:
a)Denigrating the other parent or any member of the other parent’s household to or in the presence or hearing of the children;
b)Allowing any other person to denigrate the other parent or member of the other parent’s household to or in the presence or hearing of the children;
c)Discussing these proceedings with the children;
d)Allowing any other person to discuss these proceedings with the children;
e)From physically disciplining the children; and
f)Allowing any other person to physically discipline the children.
IT IS NOTED that publication of this judgment under the pseudonym Thorn & Jennings is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM 99 of 2003
| MS THORN |
Applicant
And
| MR JENNINGS |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of [X] and [Y] can not agree on the future parenting arrangements for them. Their mother, Ms Thorn seeks orders that would provide for the children to live primarily with her and spend time with the father, Mr Jennings, each alternate weekend from Friday afternoon to Monday morning along with half of the school holidays.[1] The father would like the children to live with both parents in a week about arrangement.
[1] The mother’s Amended Application filed 23 January 2007 sought orders for the child to spend time with the father from Thursday afternoon to Monday morning but the applicant changed her position during the hearing.
The mother also sought an order that she have sole parental responsibility. The father sought such an order in his favour. The parties also disagreed as to what high school [X] should attend.
Neither party was legally represented however the children were independently represented by Ms Wooi. At the end of the hearing
Mr Bates, counsel for Ms Wooi, submitted a minute of order seeking orders that provided for the children to live primarily with the mother and spend time with the father from Wednesday afternoons to Monday mornings each alternate week. The Independent Children’s lawyer submitted an equal shared parental responsibility order would be appropriate or if the court was not so persuaded, there should be an order for specific parental responsibilities to be exercised by one parent.
Background
The mother is 44 years of age, works as an [omitted] and lives with the children and her partner Mr B at Maryville. The father is 39 years of age and works as a [omitted]. He lives in Charlestown with his partner Ms C and sees the children from Wednesday afternoons to Monday mornings each alternate week.
The parties met and began a relationship in October 1995. They started living together in February 1996 and their first child [X] was born on in September that year. [Y] was born 3 June 1998.
They married in September 1998 but from January 1999 they separated and reconciled on a number of occasions until their final separation in October 2001. The children have primarily lived with their mother since separation and have seen their father regularly.
The mother commenced her relationship with Mr B in 2003. The father has had a number of relationships since he separated from Ms Thorn but has been in a relationship with Ms C for about 18 months.
Issues
The significant issues for determination are:
·Whether there should be an order for equal shared parental responsibility.
·Whether the children should live with the parents in an equal shared care arrangement or with a primary parent.
·If the children are to live with one primary parent how often are they to spend time with the other parent.
·What high school is [X] to attend?
·Whether there should be a restraining order preventing the father and the mother’s partner from meeting at changeovers.
·What are the appropriate arrangements for the children’s extra curricular activities?
·Should there be an order restraining the parties from moving out of the Lake Macquarie/Newcastle areas?
An important aspect of the evidence that needs to be determined is the level of violence between the parents, whether the father has been violent to others and have the children witnessed any of this.
The Evidence
The applicant mother relied on the following affidavits:
a)Her affidavits filed on:
i)7 November 2006;
ii)11 December 2006;
iii)8 January 2008;
iv)4 February 2008;
v)3 March 2008;
vi)7 March 2008.
b)Affidavits of Mr B filed:
i)11 December 2006;
ii)3 March 2008.
The mother also filed a Notice of Child Abuse or Family Violence on
7 November 2006.
The respondent relied on the following affidavits:
a)His affidavits filed:
i)6 November 2006;
ii)8 November 2006;
iii)14 December 2006;
iv)30 January 2008.
A family report was also prepared in this matter by Ms Annette Jones. However Ms Jones was not available for cross examination.
Both parties and the mother’s partner, Mr B were cross examined.
The mother tendered a written summary, a minute of order sought and a letter from the [S] Child Care Centre regarding the child [Y].
The Independent Children’s Lawyer tendered records from [T] School and documents from the NSW police.
I have had regard to all of the affidavit material, the tended documents, the family report and the oral evidence of the parties and Mr B.
Issue of Violence
The mother’s evidence is that throughout and following their relationship the father subjected her to both emotional and physical violence which the children often witnessed. She also alleges that over the years there have been a number of verbal altercations over the telephone in which the father has threatened her.
The father refutes the mother’s allegations saying that any incidents between them have been greatly exaggerated by her and that apart from an incident with Mr B the children have not witnessed any altercations.
The evidence also suggests that the father has been involved in violence with other people.
The mother’s affidavit filed 8 January 2008 details many alleged incidents of family violence. I do not propose to address each and every allegation preferring to consider those where there is some corroborative evidence. I will also consider incidents between the father and other persons.
Whilst there have been Apprehended Violence orders between the mother and the father in the past there are currently no orders in this regard.
The police records, which were tendered by the Independent Children’s Lawyer,[2] indicate that on 14 April 2002, when the mother was living in Property E at Hamilton, an argument broke out between the parties when the father returned the children to the mother at the end of a period of spending time with them. During this argument she called the father a “loser”. He apparently responded by calling her a “psycho bitch”. According to the mother the father grabbed her around the neck pushing her against the window and raised a closed fist near her face. [X] had come outside during this and the father had accidentally stood on her foot causing her to cry. At this point he released the mother and left. This is clearly a case where one of the children has witnessed an altercation between the parents.
[2] ICL5
In December 2002 the parties had another incident outside the mother’s home. She alleges that they had a disagreement over the telephone about the father coming to collect some camping gear and the children’s bikes. She said that soon after that telephone call the father arrived at her house kicked the shed door in and proceeded to take the equipment from the shed. In a scuffle the mother was pushed to the ground and suffered a broken left wrist. She said [Y] who was three years old at the time witnessed this assault.
The father’s evidence of the incident is somewhat different. Although he regrets that the mother ended up with a broken wrist as a result of him pushing her he says that he was angry that the mother had taken some of the camping equipment from the boot of his car and damaged it. He denies that [Y] witnessed this incident saying that [Y] was inside the house and would not have been able to climb up and look out the window.
Regardless of whether [Y] could have witnessed this incident I am satisfied that he was in close proximity to the parties and as their dispute was a heated one he would have at the very least heard the altercation. He would also have seen the result of it when his mother was injured.
The police report[3] in relation to this incident notes that the father approached the mother, grabbed her by both shoulders with his hands and pushed her backwards causing her to fall on her left side breaking her wrist.
[3] ibid
As a result of this incident the father was convicted of assault on
11 June 2003and the mother received Victims of Crime compensation. The family report writer is incorrect when she says that the father has never been charged or convicted with any criminal offence.
On 12 September 2003 at the [omitted] Hotel the father was involved in an incident with security guards employed by the hotel. He was in the main bar area of the hotel drinking with some friends but was wearing work pants and boots. They were asked to leave because of their inappropriate clothing. Whilst they agreed to leave after finishing their drinks they delayed the time for that and were again approached by security. When one of the men that was drinking with the father was shepherded away a struggle ensued and all of the men involved were taken outside the hotel. The father is recorded in the police records[4] as a victim in this incident.
[4] ibid
Two days prior to this the father had been involved in another incident with a Mr R. Mr R accused the father of constantly threatening and verbally abusing him each time he saw him.[5]
[5] ibid
On 5 November 2003 there was an incident between the father and his then partner Ms P. They were living in C Street at the time. According to the police records the father had returned home at 8.30pm that night after drinking and immediately entered into an argument with Ms P. He threw various pieces of fruit at her and she telephoned the police when he would not stop. The father then picked up a ceramic fruit bowl and threw it at and hit Ms P causing swelling and bruising.
Later in the night he picked up a carving knife, grabbed hold of Ms P around the chest with his left arm and held the knife to her throat. Ms P tried to escape and was chased by the father. Outside Ms P fell to the ground and suffered grazing to both her knees. He caught up with her on the foot path in front of her home. She grabbed hold of a tree to stop from being taken back inside but after a while she agreed to return only to get away to her sister’s home further up C Street where she called the police.
The father’s version of this incident is significantly different. He said that they had both been drinking and were having a game that had got out of hand. He did not deny that there had been throwing of items and that he had picked up a knife however he denied holding the knife to her throat in the way described in the police records.
He was arrested and cautioned but declined an interview with police.
Regardless of the circumstances surrounding the lead up to this incident it was serious, so serious in fact that if matters had gotten even further out of hand Ms P could have suffered a serious injury. Although Ms P was not called to give evidence and the only other evidence before the court is in the police records that were prepared at the time I am unable to accept the father’s evidence as I find it inherently incredible.
The father was involved in another incident with a partner on 17 July 2005. He and Ms B had returned home after drinking at a couple of different hotels. They became involved in an argument and Ms B left the unit but remained outside while she made a phone call. The father locked the front door thereby preventing her from re-entering the townhouse they rented at Property E. The police were called and Ms B was taken to a friend’s place.
Five months previously there had been a more serious incident at this address. Again the father and Ms B had been out drinking for a number of hours. In the early hours of the morning they returned home and had an argument. Ms B was “kicked out” by the father and her furniture and possessions were thrown over the first floor balcony. The police say in their report that the father was uncooperative. This occurred at 3.30 in the morning. Eventually the father left the premises for the night. He admitted that the incident of throwing Ms B’s items over the balcony was not appropriate but he did not consider it serious.
In October 2006 there was an incident outside the mother’s home when the father dropped the children off after sports practise. The father and Mr B became embroiled in an argument and Mr B was physically assaulted. The father says that he and Mr B argued over Mr B allegedly hitting the children. Their versions of the incident differ, however both men accept it should not have happened and that it was made worse by the children being present and witnessing the dispute.
The father was charged with assault but was acquitted at hearing.
An Apprehended Violence Order was made to protect Mr B and that order expired in May 2008. It was this incident that led to the mother filing the application to reduce the time the children see their father.
There was a further incident between the father and Mr B at [T] School on 13 December 2006. The incident was a verbal stoush between
Mr Jennings and Mr B. A teacher at the school helped to defuse the incident.
The father’s altercations with Ms B and Ms P were preceded by drinking sessions and he conceded in his evidence that the alcohol had had an effect on his behaviour. There was no evidence however of alcohol consumption by the father when he assaulted Mr B. Further there was no evidence of alcohol consumption when he had the incident with Ms Thorn back in 2002.
Notwithstanding the lengthy history of disputes between the father and the mother and the father’s other violent history there does not appear to be any such incidents in 2007 and 2008.
I am satisfied that the father has in the past been unable to avoid violence and has been a perpetrator of family violence on his partners. Further he has attempted to minimise the seriousness of a number of these incidents to the court. In deciding this matter I intend to give much weight to this history of violence and the father’s attitude.
[Y]’s Behaviour
[Y] has had a number of difficulties at school. He told the family report writer that he does not like school very much as he gets into trouble a lot and people tease him.
In 2004 a report was prepared by Ms W from [M] School indicting significant behaviour problems on the part of the child. It was reported that he had little motivation for success and was happy to guess at answers rather than expend effort in addressing problems presented to him. He was assessed at having very short attention span for tasks regardless of their interest to him. He was however noted to have made significant progress in socialisation with his peers and self control of his behaviour during 2004.
Clearly this was not sustained because by 2006/2007 his behaviour had deteriorated. He changed schools in 2005 moving to [T] School.
In April 2006 a psychological report was prepared by Dr S, district guidance officer. She suggested that [Y] presented with behavioural and mental health issues, including withdrawal, aggression and oppositional behaviour. His mother had reported to her that he was also bed wetting. He was reported to be difficult to engage in the class room.
[Y] was assessed at functioning at below average intelligence with verbal and attention skills in the average range. His non-verbal skills were not quite at the same level. The child’s reading was falling behind probably because of vision problems but his spelling was considered to be age appropriate. It was recommended that he wear his glasses at all times and that the mother obtain a referral to the Behaviour Problems Clinic at Wallsend.
His class room teacher in 2006 recorded in the [T] School file[6] that [Y] had exhibited very aggressive violent types of behaviour. The file shows that [Y] would repeatedly leave the class room each day without permission and hide. There had been numerous meetings with both the mother and step-father during the first two terms of the year. The staff at the school reported difficulty in convincing the father of the child’s culpability.
[6] ICL3, 4 & 7
He was said to be disruptive of the class room. By the end of term three [Y] had settled down and was working hard at least for the last four weeks of the term. He remained settled for the first three weeks of term four. However after the incident between the father and Mr B in October 2006 his behaviour deteriorated. He again became oppositional seeking out older children to pick fights with and he presented at school unhappy and very sad. He returned to leaving the class room on a daily basis.
In December 2006 he was suspended for a number of serious incidents involving: vilification; violence and laying in ambush to assault another child. This sort of behaviour appeared to occur on a daily basis. A printout of the child’s behaviour in 2006 and 2007 shows a child that has deep behavioural problems. He is reported on numerous occasions as being violent; disobedient; swearing; insolent; bullying; fighting and being involved in vandalism. In 2007 he was suspended at least six times.
The Independent Children’s Lawyer tendered a document[7] entitled Reappraisal Review from [T] School. This document was prepared at a learning support team meeting held on 10 August 2007 between the mother, the principal and the school councillor. The document reported that [Y] was performing below year 3 level. He had low tolerance/high frustration levels towards work and he needed constant one to one help to keep him on task. He continued to display oppositional defiant behaviour and instigated incidences with other children in the playground. A plan of action was put into place to involve the mother making an appointment with a child psychologist.
[7] ICL1
[X]’s special needs
[X] has a hearing deficit problem and has been receiving ongoing care by the mother. The father recognising the mother’s background in the medical field has had confidence in her ability to make the correct decisions for [X]’s medial needs. I am satisfied that this child’s special needs will be attended to appropriately by the mother.
The Family Report
The family report writer has recommended the children live with both parents in a week about arrangement. The report writer was concerned that [Y] was being scapegoated in his mother’s home. She formed the view that [Y] had been subjected to physical discipline by Mr B and made a notification to the Department of Community Services in relation to this. The Department did not intervene in these proceedings.
The father conceded that whilst this was a significant concern for him initially he is satisfied that Mr B was no longer hitting [Y]. In fact one of the reasons behind the altercation between the father and Mr B in October 2006 was an allegation that [Y] had been hit by Mr B. Mr B says that he had witnessed [Y] hit the family dog and gave him a pat on the shoulder and asked him how he felt about that. [Y] had complained about a number of incidences where he had been hit by Mr B. I am persuaded that there has been a history of this in the past but that other techniques for discipline have been adopted by all of the parties and
Mr B. Notwithstanding this I will make an order restraining all parties from physically disciplining the children. Both the mother and father agreed to this during submissions.
It would appear that Ms Jones has placed significant weight in forming her conclusions on the children’s wishes especially as regards their extra-curricular activities.
Ms Jones did not have the benefit of reading the subpoenaed material. The father had told Ms Jones that there had been no criminal charges in relation to any incidence of violence. This is not the case. There have been a number of Apprehended Violence Orders made to protect the mother, Mr B and Ms P. Whilst Ms Jones did not dismiss the issue of family violence her written report did not canvass this issue sufficiently. Unfortunately Ms Jones was not available for cross-examination at the hearing and for this reason I have not given her conclusions as much weight as I might have otherwise. I have already concluded that much weight needs to be placed on the issue of violence in this case.
Legal Principles
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration.[8] That is the overriding principle.
[8] s.60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[9]
[9] s.60B lists the objects and principles for Pt VII.
In determining what is in a child’s best interests I must consider the matters set out in s.60CC.
When making a parenting order the court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility.[10] This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the children’s best interests for it to apply.[11]
[10] s.61DA
[11] s.61DA(2) & (4)
In the event that the Court orders the parties to have equal shared parental responsibility the Court must apply the provisions of s.65DAA which provide for a consideration of the children spending equal time with the parents. If the court finds that is not in the children’s best interests or reasonably practicable then the court must consider the children spending substantial and significant time with the parents.
Presumption of Equal Shared Parental Responsibility
Although the parties have a different interpretation of the level of violence in this case there can be no doubt there is a significant history of family violence sufficient for the presumption to be rebutted.
The Independent Children’s Lawyer submitted that there should be an order for equal shared parental responsibility notwithstanding the history of family violence. Mr Bates argued that since the incident in 2006 the history of violence has settled down. For the reasons I will set out below I find this submission overly optimistic.
Sharing the responsibility of making the major long term parenting decisions requires an ability to communicate effectively. This is especially so when parents have different parenting styles or have different aspirations for their children. In this case the parties find it near impossible to agree on anything. In fact during their submissions they agreed on one thing – the fact that they would not be able to reach agreement in the future about their children.
Having seen the parties before the court over many days I have no doubt they will continue to argue over the parenting of their children. They appear incapable of seeing life from the other parent’s perspective. Both of them were realistic in seeking sole parental responsibility.
The father was at least able to recognise the mother’s involvement in the children’s medical care and was prepared for her to make decisions in this regard.
I am satisfied that the best interests of the children will be met by a sole parental responsibility order and that the appropriate parent is the mother. In arriving at this decision I have placed weight on the note from [T] School that the teachers were unable to persuade the father of the child’s culpability in the incidents at the school,[12] the mother’s involvement in the children’s medical and other needs to date and my decision that the children should live primarily with the mother.
[12] ICL 4
I also took into account the father’s involvement with the children’s extra-curricular activities. This has been a very positive contribution the father has made to their parenting and should continue. I will make specific orders in relation to this.
Consideration of Equal Time or Substantial and Significant Time
Although I have concluded the presumption of equal shared parental responsibility is rebutted and further that it would not be in the children’s best interests for such an order to be made I will still consider the provisions of s.65DAA as the father is seeking an equal shared care order.
In the decision of T & N[13] her Honour Federal Magistrate Ryan, as she then was, considered the factors a court should examine when determining applications for equal shared care. Many of those factors were ultimately incorporated into the 2006 amendments to the Family Law Act.[14] I propose to list a number of those factors to address the capacity of these parents to share the care of the children. I have also considered them in my analysis of the provisions of s.60CC which will be set out below.
[13] (2004) 31 Fam LR 281
[14] S65DAA(5)
The parties’ capacity to communicate on matters relevant to the children’s welfare:
Both the mother and father recognise they lack this capacity. The level of animosity is so great and trust non-existent denying them the necessary level of objectivity to be able to communicate with the other about the children and hear what the other is saying.
The proximity of the two households:
The mother currently lives in Maryville and the father in Charlestown. Whilst the suburbs are not immediately close to each other they are not so far away that would make a shared care arrangement impossible.
It is preferable however for each household to be close by so the children are able to move more easily between them and maintain their neighbourhood friendships.
The prior history of caring for the children:
The parties have never tried an equal shared care arrangement before. The children have seen their father regularly but in what has traditionally been the more common way of alternate weekends and holiday times. This has been extended to be each alternate Wednesday to Monday since early 2007. I am not satisfied that this extended time is any guide to predict how the parties would handle an equal time arrangement.
Whether the parties agree or disagree on matters relevant to the day to day care of a child such as discipline, health and dental care, diet, sleeping patterns and attitudes to homework:
Both parents recognise they find little in common. The father accepts the mother is able to handle the children’s health needs. Apart from that the parents have very little in common in this regard.
Whether if the parties disagree on these matters, there is a likelihood that they would be able to reach a reasonable compromise:
Using the past as a guide to the future there is little hope of compromises being reached between these parents. A number of contraventions have been filed by both parties in the past and in court I found them both unwilling to give ground on even minor issues.
Whether they share similar ambitions for the child such as religious adherence, cultural identity and extra curricular activities:
There have been ongoing problems in relation to the children’s extra curricular activities. However I find that has been more borne out by difficulties the mother has had in being able to get the children to and from such activities rather than having differences of ambition for the children than the father. The father has doubted the mother’s commitment but I am satisfied that it has been more of a practical nature.
Whether they can address on a continuing basis the practical considerations that arise when a child lives in two homes:
There are often ongoing practical issues when children live in two homes. One example is when a child needs a book for school that has been left in the home he or she was living in the week before. If that was to arise in this case I have no confidence one parent would be able to easily phone the other parent and organise a pick up of the book. That is only one simple practical implication of sharing the care of children. Unfortunately these parents do not have the ability to communicate effectively to address these ongoing practical issues.
Whether each party respects the other as a parent:
Whilst neither party has much respect for the other as a former partner I accept they both see that the other loves and cares for the children. Unfortunately they are unable to take this to another level by respecting the decisions they make in the care of the children.
The children’s wishes:
Both children would love to spend a week about with each parent. Whilst the children may see it in terms of fairness they are of an age where they lack the maturity to fully understand the effects of such an order on their day to day lives.
Conclusion as to the children living with the parents in an equal shared care arrangement:
When I consider all those factors I am satisfied that the parents would not be able to work well together to see the arrangement work.
It therefore would not be in the children’s best interests nor would it be practicable for orders to be made that they spend equal time with each parent.
Having determined that an equal time order is inappropriate I will turn to a consideration of the children spending significant and substantial time with the parents. In doing so I will consider the factors set out in s.60CC.
The primary considerations: s.60CC(2)
The benefit to the child of having a meaningful relationship with both of the child’s parents
There is no doubt despite the ongoing difficulties between the parents the children have a good and meaningful relationship with both of them. The family report writer noted the children expressed very positive feelings towards both their mother and father. Neither parent disputes this.
A meaningful relationship is not one that should be defined by the extent of time a child spends with a parent. Children benefit from and develop their relationship with their parents by experiencing the varying aspects of life with each parent. School days and weekends will bring different experiences in each household.
Under either proposal the children would be with both parents on a regular basis each fortnight however the mother’s proposal would see a reduction in the time the children spend with their father. This may have the potential to compromise their relationship with him although I am not satisfied there is sufficient evidence to conclude that that would necessarily follow. Whilst the mid week time would no longer happen the children would still spend Friday’s after school with the father every second week and the father would be responsible for getting them to school on Monday mornings.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
This is one of the most significant considerations in this case. The mother says the children have been exposed to family violence but although the father concedes there was one incident that the children witnessed he says they were not present on other occasions. I do not accept his evidence in that regard and find that he has minimised his role in the violence and its effects on the mother and children.
The last two years however have been free of any significant incidents. Despite this the court needs to be satisfied that the children would not be exposed to it in the future. Mr Bates argued that although the violence is of concern, given the recent improvement and the limited opportunity for the parents to come into contact with each other in front of the children except in a public place the risk is now minimal.
The Independent Children’s Lawyer sought an order that the mother’s partner not be present at handovers so as to avoid any re-occurrence of hostilities. Neither the mother nor the father sought such a restraint.
The father accepted that the incidents in 2006 should not have happened and said that both he and Mr B had moved on. The mother considered that if handovers are to occur at a public place such as McDonalds the likelihood of further altercations would be minimised. Whilst I have some doubts that the parties will ever be able to move on, given the mother does not want the restraint on Mr B coming into contact with the father despite her litany of complaints about him I am satisfied that it is not necessary.
There is no evidence that the father’s current relationship is characterised by violence. If that is the reality and continues in that vain the children should not be exposed to violence. I therefore accept the Independent Children’s Lawyer’s submissions that the risk is minimal.
The father was concerned that Mr B was using physical discipline on the children. The parties have agreed to a restraining order in that regard that would extend to ensuring their partners also do not use this form of discipline. The father said that despite his initial concern he felt that it had abated. I am therefore satisfied that the children would not be at risk of inappropriate discipline in either household.
The additional considerations: s.60CC (3)
Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views
The children have told the family report writer that they want to spend equal time with each parent. The children appeared from that report to be interested in the many activities the father has them doing. Whilst this is a positive I have no doubt they are influenced by the enjoyment they get from these activities. Given their ages and the corresponding lack of maturity to understand the consequences of living in two homes I do not place much weight on the wishes. When this factor is weighed against all the other factors and in particular the inability of the parents to communicate effectively the wishes need to give way to the more practical considerations.
Having said that however I take on board the expressed desire by the children to spend more time with their father when I consider the mother’s request to reduce the time they currently spend with him. The disappointment they would feel in such a reduction mitigates against the mother’s proposal.
The nature of the relationship of the child with each of the child’s parents
I accept the Independent Children’s Lawyer’s submission that the children have a good relationship with both parents. Whilst there may have been difficulties in the relationship between the children and
Mr B I am satisfied that that has gone by the wayside as Mr Bates put it.
The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
There is little hope that either parent will be able to encourage the children to have a close relationship with the other parent. The animosity between them is too great. Despite this the children have been able to develop a good relationship with both parents. This situation is likely to continue no matter what orders are made but the potential for ongoing problems is more likely to arise in an equal shared care arrangement where the parents would have to co-operate more effectively than these parents are capable of.
The likely effect of any changes to 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 with whom he or she has been living
The mother’s proposal would see a reduction in time the children spend with their father. This may, at least initially, be difficult for the children who dearly love spending time with him. Given they have expressed a wish to spend more time with their father a reduction of that time may cause resentment.
The mother argues that the reduction will provide consistency for the children by ensuring that any practical difficulties similar to those discussed above in relation to equal shared care arrangements do not arise. There is much merit in the mother’s argument however I am satisfied that at least during 2007 and 2008 whilst not devoid of difficulties the problems have not been insurmountable.
The capacity of each of the child’s parents and any other person, including any grandparent or other relative of the child, to provide for the needs of the child including emotional and intellectual needs
These children each have special needs. Given [Y]’s behavioural problems I am satisfied that he needs stability and predictability. A week about arrangement has the potential to be destabilising given the different ways these parents parent.
The mother has been more involved with [Y]’s school and is more attuned to his needs in this regard. Her proposal of the children spending the school week with her and having alternate weekends with the father has much merit at least under this consideration.
[X]’s hearing difficulties also require ongoing attention. The mother has attended to her needs in this regard and the father has no complaints in this regard.
I am satisfied that both parents would be able to cater for the children’s day to day needs but that the mother has greater insight into the special needs of the children.
In a week about arrangement there is greater probability of issues arising and not being addressed consistently. The proposals by the mother and the Independent Children’s Lawyer are less likely to compromise the children’s care.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
The father argues that the mother has consistently attempted to alienate the children from him. If that is the case she has failed as he enjoys a very good relationship and they clearly love him.
The animosity between the parties is such that they simply would not be able to positively promote the other parent to the children. In that regard they have both fallen short in their parental responsibilities.
The father’s violence is another example of a lack of parental responsibility.
One of the areas in which the father has demonstrated a positive attitude to his responsibilities as a parent is his attention to the sporting and extra-curricular activities of the children. He is clearly dedicated to ensuring the children follow their interests. The mother argues that she has had practical difficulties in ensuring the children always attend their events but she is not opposed to the children being involved in these activities.
The Independent Children’s Lawyers proposal in this regard would ensure the children not miss out however I will make provision for the mother to notify the father in the event that she can not make arrangements to take the children to or collect them from an activity.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person
Whilst there are no current Apprehended Violence Orders in place affecting either party or their partners there is a history of such orders against the father. Whilst the current threat of violence appears to have abated I remain concerned that if the children are again exposed to their father being violent to anyone he would not be an appropriate role model for them.
However for the reasons that I have already considered I am satisfied that the risk can be minimised by limiting the opportunities for these parties to come into contact with each other except in a public place such as McDonalds.
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
The Independent Children’s Lawyer argued that there is less likelihood of a return to court if the current arrangement remains. A week about arrangement would be risking a break down given the lack of communication and different parenting styles. The mother’s proposal of reducing the father’s time may see resentment from the children which could in turn lead the father to undermine the parenting of the mother.
I am of the view that if a shared parental responsibility orders was made, as suggested by the Independent Children’s Lawyer, there would be the potential for future disputes between the parties to escalate to such an extent that litigation would follow.
The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent s.60CC(4)
I have already considered this above.
[X]’s School
The father was concerned that the mother intended to enrol [X] in [N] School and was worried that there were no special provisions at that school to address her special needs. There was insufficient evidence before the court as to what she needed and what was available at the different schools. During the evidence and addresses however I became satisfied that the mother had followed up with [X]’s needs and I have confidence she would ensure that those needs are met. The father in submissions conceded that he would not have a problem with [N] High if her needs were met.
I have indicated I intend to make an order for the mother to have sole parental responsibility. Because of this I do not intend to make a specific order for which school [X] should attend. That decision will fall to the mother.
Should there be a restraint on the parties from moving outside the Lake Macquarie/Newcastle areas?
This area was not covered in cross examination but was important to the father. The mother has previously moved to Tamworth only to return when orders were made by consent in 2003.
Both parties are bound by the orders I make. If one parent moves out of their current area compliance by that parent would be problematic.
Neither party indicated any intention of moving outside the area. I am not persuaded that it is necessary in those circumstances to make the order.
Conclusion
When I weigh all the considerations above I am satisfied that the children should continue to live primarily with their mother and spend significant and substantial time with the father. Whilst there was much merit in the mother’s proposal to reduce the time the children spend with the father in order to provide a more stable routine when that was weighed up with the other considerations I am satisfied that their time should remain from Wednesday to Monday each alternate week. This would continue a long standing arrangement that has largely worked for the children and would avoid disappointment for them in having their time with their father reduced.
The problems with the risk of violence will be minimised by ensuring the parties do not come into contact with each other unless a school pick up is not possible and in those cases the handovers are to occur at a McDonalds.
For these reasons I make the orders set out at the beginning of this judgment.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Associate: Helen Drysdale
Date: 11 December 2008
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