Tomerford and Tomerford (No 3)

[2011] FamCA 564

FAMILY COURT OF AUSTRALIA

TOMERFORD & TOMERFORD (NO 3) [2011] FamCA 564

FAMILY LAW - CHILDREN – Application for parenting orders – parties agree the children will live with the mother – parties agree about the children spending time with the father – parental responsibility to be determined – father seeks equal shared parental responsibility -  mother seeks sole parental responsibility – intractable parental conflict – where mother is the children’s primary carer – where children have close attachment to the maternal grandparents – where the mother has facilitated and encouraged the children’s relationship with the father – where father makes repeated allegations of sexual abuse of one child by the maternal grandfather – no evidence to substantiate sexual abuse allegations – need to protect children from harm arising from false allegations – finding that equal shared parental responsibility could lead to ongoing parental conflict – presumption of equal shared parenting responsibility rebutted – sole parental responsibility allocated to the mother

Family Law Act 1975 (Cth) ss 60CC, 61B, 61C, 61D, 61DA, 65DAC, 65DAE

Marvel v Marvel (2010) 43 Fam LR 348
Goode v Goode (2006) 46 Fam LR 422

APPLICANT: Mr Tomerford

RESPONDENT: Ms Tomerford

INDEPENDENT CHILDREN’S LAWYER: Ms Wooi

FILE NUMBER: NCC 600 of 2009

DATE DELIVERED: 7 July 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 27, 28 and 29 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Greenway

SOLICITOR FOR THE APPLICANT:

Mr Velcic

Dom Velcic & Co

COUNSEL FOR THE RESPONDENT: Mr Tregilgas

SOLICITOR FOR THE RESPONDENT` Viney Williams

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Wooi

Orders

1. That all parenting orders made in relation to the children B born … April 2005 and C born … December 2006 (“the children”) prior to 27 June 2011 are discharged.

2. That orders made on 28 June 2011 are discharged.

3. That the mother have sole parental responsibility for the children.

4. That on each occasion on which a decision needs to be made about a major long term issue in relation to the children or either of them, the mother shall:

   4.1advise the father of the relevant issue;

   4.2invite the father to express a view about the issue within a reasonable nominated period of time;

   4.3give genuine consideration to any view expressed by the father within the nominated period; and

   4.4advise the father in writing of the decision made by the mother.

IT IS NOTED that publication of this judgment under the pseudonym Tomerford & Tomerford (No 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC600 of 2009

Mr Tomerford

Applicant

And

Ms Tomerford

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is a dispute between parents which has been reduced to one issue; that is the allocation of parental responsibility. The father seeks equal shared parental responsibility and the mother seeks sole parental responsibility.

2. The matter had been set down for six days of hearing.  Over the course of the first three days the parties reached agreement about the children’s residence, periods of time to be spent with the non-resident parent and certain specific issues.  Orders were made by consent on three occasions as each area of agreement was reached.  On the third day, after the third set of orders had been made, the Court was told that the disagreement about parental responsibility was intractable.  All parties asked that the Court determine that issue on the basis of the untested affidavits, the reports and oral evidence of the single expert Dr R, and oral submissions on behalf of each party.  The matter proceeded in that way.

History of the matter

1. The father and mother are aged 50 years and 37 years respectively.  They were married in 2001 and lived together for just over seven years until final separation on 19 January 2009.  At the time of marriage, the father was just beginning a career as a pastor in Religion 1, the mother was a manager of a small business on the Central Coast of New South Wales.  The parties were divorced in April 2010.  The father remarried six months later.  The mother has not remarried and does not have a partner.  Both parties presently live with their respective parents.  The father and his wife in Newcastle, the mother in Town 1.

2. There have been three children of the marriage, J born in  May 2003, who died at 10 months of age after a prolonged illness.  The two younger children are B born in April 2005 (6 years) and C born in December 2006 (4½ years).

3. After the parties separated the mother and children moved to live with the maternal grandparents in Town 1.  The parties attended mediation.  The children have lived with the mother since separation and had irregular contact with the father. 

4. On 11 March 2009 the father filed an Application in the Federal Magistrates Court seeking that the children live with him and spend supervised time with the mother.  The father also filed a Notice of Child Abuse or Family Violence in which the following allegations were raised:

   1.      That the mother had been sexually abused as a child.

   2.      That as a matter of fourth hand hearsay the maternal grandfather had sexually abused the mother and her sister when they were children.

   3.      That the father was fearful for the safety of the children in the home of the maternal grandfather.

5. On 19 March 2009 and 5 May 2009 orders were made providing for defined time with the father.

6. On 30 June 2009 fresh interim orders were made by consent for the children to spend three days and two nights with the father in each week.

7. The mother asserts that in July 2009 the father continued to pursue reconciliation with her.  This was supported by letters written by the father to the mother[1]. 

   [1]  Annexure ‘E’ & ‘F’ to affidavit of mother sworn 2/11/2010

8. On 4 September 2009 the mother was contacted by the JIRT team in relation to a call received by the Department of Human Services’ Helpline in relation to C[2].  There was no further action taken as a result of this investigation.

   [2]  Pars 77-81 of mother’s affidavit sworn 2/11/2010

9. On 25 September 2009 the father filed a further Notice of Child Abuse or Family Violence.  The allegations by the father were that C complained to him that the maternal grandfather had engaged in conduct towards C on or before 4 September 2009 which was sexually and physically abusive.

10. On 1 October 2009 orders were made in the Federal Magistrates Court by consent including the following orders:

    1. ………….

    6. The parties are hereby restrained from taking the children to any medical appointments in relation to allegations of sexual abuse, Police or welfare authorities without the leave of the Court following an application by the Independent Children’s Lawyer.

    ..

    8. The father is hereby restrained from bringing any further application in relation to abuse of the children [B] born […] April 2005 and [C] born […] December 2006 without first obtaining the leave of the Court and in respect of any such application for leave is to file an affidavit in support of any further allegations of that nature (sic).

11. In late January 2010 the parties and children were interviewed by Dr R[3], the single expert in this matter.  At that time the father was asked about his statement to a third party, a pastor in the Town 1 area, that the maternal grandfather was a paedophile.  The maternal grandfather is a lay preacher and has been a pastor.  The father said he was certain that the maternal grandfather had sexually abused his daughters.[4]

    [3]  Page 1, par 1, Dr R’s report dated 1/3/2010

    [4] Page 10, par 1, Dr R’s report dated 1/3/2010

12. On 14 April 2010 the report by Dr R was released.  The report did not support the children living with their father, but did support ongoing contact with him for shorter periods.  Dr R expressed an opinion about the alleged abuse of C[5], which opinion I accept:

    ….  From [C’s] various comments about touching and who changes her nappy, it would seem [C] is contributing to the tension in the parental relationship.  Certainly her parent’s lack of trust for each other makes them unavailable to help her deal with a lively internal world, which at times troubles her.  Her history of how she is learning to become comfortable to defecate in the toilet, her apparent constipation after being with her father and her painful anal infection indicates her need for parental sensitivity at this time, rather than [the father’s] more authoritarian approach.

    While [the father] is correct to question why [C] has commented ‘Pa touched me’, he appears to have gone beyond appropriate enquiry into a fixed belief about [Mr D’s] culpability, based on his prejudice against [Mr D].  I do not share his concerns.

    [5] Page 15, pars 2 and 3, Dr R’s report dated 1/3/2010

13. On 28 July 2010 orders were made by consent reducing the time between the children and their father.  The orders provided for the father to spend time with the children on alternate weekends from 9.00 am Friday until 2.00 pm Sunday commencing 30 July 2010. 

14. In October 2010 the father remarried.  The mother was unaware of the father’s remarriage and the children were not invited to participate.

15. On 4 January 2011 the father filed a Notice of Ceasing to Act in the Federal Magistrates Court. 

16. On 12 January 2011 the mother caused her solicitors to write to the father in person raising the implications of the orders for B commencing school on 28 January 2011.  Once B commenced school, he would no longer be able to spend time with the father from 9:00am Friday. The mother proposed a variation of the orders by way of reduction to a 9.00 am start on Saturday.  The parties were unable to agree about a change. 

17. The mother took B to school on Friday 28 January 2011 and did not make C available to the father.  Later that day a police officer attended the mother’s residence and conducted a welfare check on C at the request of the father.

18. On 11 February 2011 the father made an ex-parte application to the Town 1 Local Court for a recovery order in respect of both children.  This application was made without the leave of the Federal Magistrates Court, or any other Court.  The details of the Independent Children’s Lawyer were not included in the application.  In support of this application the father swore an affidavit in five paragraphs which raised the following concerns:

    1.      That the children were at risk of “continued abuse by the maternal grandfather”.

    2.      That C was “constantly displaying signs of fear and had a red and sore genital area”.

    3.      That C had been indicating that she was afraid of the maternal grandfather and that he was touching her inappropriately.

    4.      That C had been hospitalised for dislocated elbow, concussion and has had facial injuries in the past.

    5.      That B is “presenting as a scared little boy and has asked me on a number of occasions ‘are you my dad’ ”.

    There was no reference in the father’s documents to the matter of his time with the children being unilaterally reduced by the mother.

19. On 11 February 2011 when the father was due to see the children, the mother was approached by detectives from the JIRT team outside the home of her sister.  The recovery order from the Local Court at Town 1 was produced that evening when the children were in bed.  Both parties agreed that the recovery order would be effected the following morning.

20. The mother was unable to have the matter urgently restored in the Local Court in Town 1.  After five to six days the children were returned to the mother by arrangement between the parents.  The father had by then instructed solicitors.

21. On 3 March 2011 the mother filed an Application in a Case in this Court seeking a reduction in time spent between the children and their father to four hours each Sunday supervised in a centre in Town 1.  

22. On 11 March 2011 after a contested interim hearing, an order was made that the children spend time with their father, failing agreement otherwise, each alternate Sunday from 10.00 am to 4.00 pm.

23. On 30 March 2011 the father filed an Amended Application conceding the children’s residence to the mother and otherwise seeking equal shared parental responsibility and time with the children each alternate week from after school Friday until 5.00 pm Sunday, and in every other week on Sunday from 10.00 am to 4.00 pm and block holiday contact as specified.

24. In April 2011 an application was brought before the Court by the Independent Children’s Lawyer, prompted by the Department of Family and Community Services (“the Department”) for access to the file of this Court.  There was at that time an open investigation into the allegations about C made by the father to a third party.  The father opposed the release of the file.

25. On 8 April 2011 access was granted to the Department to inspect the Family Court file and leave was granted to the mother to take the children to interviews as requested by police or welfare authorities.

26. In May 2011 the children and the parties were reinterviewed by Dr R.  The father said he believed C to have been sexually abused, but understood there was no evidence[6].

    [6]   Page 2, Dr R’s report dated  2/6/2011

27. On 2 June 2011 a second report was delivered by Dr R.  Dr R noted that the children were still recovering from the stress caused by the extended period of five to six days which they unexpectedly spent with the father in February, following the father’s receipt of a Recovery Order.  There was a recommendation for day time only contact between the children and the father for the balance of the 2011 year and an introduction of overnight contact in 2012.

28. The Court was advised by counsel for the Independent Children’s Lawyer that the enquiry by the Department into the allegations relating to C was closed.

29. On 27, 28 and 29 June 2011 the parties entered into consent orders, guided by Dr R’s report and specific oral evidence of Dr R. Those orders provide that the children will live with the mother and spend gradually increased time with the father, commencing with six hours each alternate Sunday, leading up to alternate weekend time.

30. This Court is now asked to make one final parenting order that is in relation to parental responsibility.

The Law

1. Section 61C of the Family Law Act 1975 (Cth) states that each of the parents of a child who is not 18 has parental responsibility for the child. The parents are therefore autonomous, that is each parent has all of the rights, responsibilities and duties of a parent (s 61B). The making of a parenting order triggers the possibility of a change to parental responsibility.

Presumption of Equal Shared Parental Responsibility

1. In this matter the Court has made orders by consent in relation to who the children live with, spend time with and other specific matters. Parenting orders do not confer or diminish parental responsibility beyond what is expressly stated in those orders (s 61D). When making parenting orders, the Court must apply a rebuttable presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility (s 61DA(1)). The presumption relates solely to the allocation of parental responsibility as defined in s 61B and as set out above.

2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in abuse of the child or family violence (s 61DA(2)).  That is not the case here.

3. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  The Court must apply the presumption unless it has been rebutted (s 61DA(4)).

4. Section 60CC sets out how a Court determines what is in a child’s best interests. Accordingly I must consider the matters set out in that section.

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of their parents.

1. At present, the children enjoy a meaningful relationship with the mother. Although the children, in particular B, can be anxious when spending time with the father away from the mother, they also enjoy a meaningful relationship with the father. In order for the children to continue to have meaningful relationships with each of their parents, it is essential that the possibility of overt conflict between the parents be eliminated. 

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

1. Although the mother has made allegations that the father perpetrated domestic violence and taunted the children during the relationship, all of which allegations the father denies, it can be assumed that the parties consider that their consent orders adequately protect the children from subjection or exposure to abuse or family violence.

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

1. Neither of the children has expressed a relevant view.  It could hardly be the case that children aged six and four would understand the concept of parental responsibility.

Section 60CC(3)(b) - the nature of the relationship of the children with each of their parents and other persons (including any grandparent or other relative of the child).

1. The children have their primary attachment to their mother who provides the bulk of their care.  They are also closely attached to their maternal grandparents in whose home they live. 

2. The children have a relationship with their father which is both loving and affectionate, but which can also be anxiety provoking for both of them at times.

Section 60CC(3)(c) - the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent.

1. The parents are both highly critical of each other.  The mother has however shown a consistent ability and willingness to help the children to maintain a relationship with their father. 

2. The affidavit of the father’s wife and the father’s mother both speak of the easy, affectionate and loving relationship that the children have developed with their step-mother.  This is strong evidence of the mother’s willingness to promote that relationship and not to undermine it.  Accordingly, it is unlikely that the mother has caused or contributed to the difficulties in the relationship between the children and the father. 

Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:

i)       either of their parents; or

ii)      any other child, or other person (including any grandparent                  or other relative of the children), with whom they have   been living.

1. There would be no change of circumstance of the children arising from the allocation of parental responsibility other than the prospect of conflict being reduced. This prospect would only be of benefit to the children.

Section 60CC(3)(e) - the practical difficulty and expense of the children spending time and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. The parties have by consent reached agreement which will ensure an ongoing relationship between the children and their father.

2. The children will travel between Town 1 and Newcastle by car as they have become used to doing.

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

1. One of the issues which was squarely raised in these proceedings was the mental health of the father.  The single expert Dr R has more than once referred to the father’s lack of child focus.  In his affidavit[7] the father refers to the distress he suffered after the death of the parties’ first son in April 2004 and having been given medication and referred to a psychologist.  There is no evidence of treatment of the father at that time.  There is however the evidence of a psychologist Dr E who saw the father two and a half years later between 13 November 2007 and 29 January 2008[8].

   [7]  Par 26 affidavit of father sworn 2/11/2010

   [8]   Annexure ‘F’, pars 95, 96 affidavit of father sworn 2/11/2010

2. The psychologist Dr E in Town 2 Queensland assessed the father as suffering from depression in severe range, anxiety in the extremely severe range and stress in the severe range.

3. The doctor says this at the end of his report:

   I last saw [the father] on 29 January 2008.  His treatment program was not completed at that time. 

4. There is also the evidence of Dr O[9], a specialist general practitioner at Town 3.  Dr O saw the father between December 2008 and 9 February 2009, a period of two to three months.  Dr O reports “that the father was recovering from an anxiety disorder and was subsequently able to stop his medication”.  There is no indication that Dr O had been provided with a copy of the report and/or notes of Dr E or that he had the file of the general practitioner Dr L who had referred the father to Dr E. 

   [9]  Annexure ‘G’ affidavit of father sworn 2/11/2010 – Report of Dr O

5. There are periods unaccounted for between April 2004 and November 2007 and January and December 2008 where the inference can be drawn that the father had untreated mental health issues, namely depression and anxiety.  That is consistent with the mother’s assertion that the father was moody, irritable and found dealing with the children stressful.  In his report Dr E says this[10]:

   These findings were consistent with other clinical data obtained from interviewing [the father] which included evidence of depressed mood, diminished interest in normally pleasurable activities, diminished cognitive performance, irritability, restlessness, feeling overwhelmed, low perceptions of control and excessive uncontrolled worry.

   [10] Annexure ‘F’, affidavit of the father sworn 2/11/2010

6. There is a further report by a psychologist dated 5 March 2009.  The report is based entirely on a social history given by the father and the father’s responses to a personality assessment inventory.  There is nothing to suggest that this psychologist had seen any documentary evidence of the father’s past medical treatment. 

7. However assuming that the positive report in that psychological assessment is accepted, the father’s own evidence creates a picture of fluctuating mental health.  Certainly he was quite ill in late 2007/early 2008 when he saw Dr E. 

8. There is no overall assessment of the father’s mental, psychological and physical health and those are significant matters in a consideration of parental responsibility and capacity to meet a child’s needs.  At present the father has the support of his new wife and of his parents who are providing a home for him.  He is undeclared bankrupt.  There is no medical evidence for the period since February 2009. 

9. There is also the matter of the father’s allegations of sexual misconduct by the maternal grandfather.  In these proceedings the father indicated that he wished to “draw a line on past allegations”.  This was something the father also said to Dr R.  However the father has been prepared to make allegations about abuse of C up until at least February 2011. 

10. The Court raised with counsel for the father the impact on C if another allegation of abuse is made, which necessarily triggers investigative actions by the Department of Family and Community Services in combination with the police (JIRT).  There is an immediate impact on C in terms of interview and examination, and a secondary effect for both the children of stress caused to the mother by these investigations.

11. Counsel for the father submitted that the father has voluntarily entered into an order restraining him from making such complaint.  However the Court cannot be entirely satisfied that this will be sufficient.  There was a previous order in 2009 restraining the father from making an application based on those allegations of abuse.  The father defied that order at a time when he was unrepresented, as he presumably will be after the determination of these proceedings.  The desire to be vindicated in his concerns about C and the allegations that the maternal grandfather sexually abused the mother during her childhood, have caused the father to lose child focus.  Anything which can reduce the possibility of that happening again should be put in place.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of their parents, and any other characteristics of the children that the court thinks are relevant.

1. The children are a boy aged six years and a girl aged four years.  B is assessed by Dr R to be an anxious child both by nature, in terms of his personality, and in terms of consequence of having been raised by anxious parents who had recently suffered the death of their infant son.  He is particularly stressed by sudden changes and transitions.  He was adversely affected by being removed without notice from his mother’s care in February 2011 for an unexpectedly extended period, and being unable to contact her during that period.  He finds separation from his mother stressful.  He sometimes regresses, for example he has recently developed a habit of soiling himself.  He enjoys the company of his father once the separation process is over.  The situation for B is somewhat fragile.

2. C is a more emotionally resilient child. But her every word has been listened to more than once whenever she makes complaints about her family, on both sides.  She has been questioned and examined about allegations of sexual misconduct by her maternal grandfather. This may cause C to be conscious that there are rewards for complaint. 

3. Both children need a predictable and stable arrangement for their care. 

Section 60CC(3)(h) - if the children are Aboriginal or Torres Strait Islander.

1. Not relevant.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents.

1. The mother has had responsibility for the care of both children since January 2009, including their financial care.  The father is unable to contribute financially due to bankruptcy.  The mother asserts that he has made no financial contribution since separation.  The father says he has on a very limited basis. 

2. While the father has not been able to contribute to the financial support of the children, there is no doubt of the father’s commitment to the children.  He has persevered with arrangements which have involved considerable travelling in order to spend short periods of time with the children.  He has probably under-estimated the impact of his behaviour on the children, especially at times when his mental health was strongly affected by depression and anxiety. 

Section 60CC(3)(j) & (k)– any family violence involving the children or a member of the children’s family.

1. Not relevant.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the children.

1. In considering the best interests of the children in relation to parental responsibility, the Court is urged by Dr R to make orders least likely to lead to the institution of further proceedings, especially for the sake of B. 

Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant

1. The parties have thoughtfully put in place a program which will enable the use of a clinical child psychologist to monitor the progression of time between the children and their father and their overall psychological health.  The parties have also put in place resort to a family dispute practitioner in the event that they are unable to agree.  If there was equal shared parental responsibility, the possibility of using these mechanisms and then still needing to resort to litigation is real. 

2. In the Full Court decision of Marvel v Marvel (2010) 43 Fam LR 348 [103], their Honours say this:

   It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of the effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long- term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contraventions applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.

3. It is the view of the Court that this is just such a case; where equal shared parental responsibility would lead to further conflict.

4. This is a matter where expert evidence before the Court sets out in clear terms the consequences of ongoing conflict, including litigation, between the parents.  In her first report Dr R says this[11]:

   If the children’s anxious behaviours do not settle then the frequency of their visits to [the father] will need to be reviewed.  It is important to minimize i) their distress over loss of their father and paternal grandparents and ii) their anxieties around the parental discord and legal proceedings. Both of these sets of emotions will disrupt their development (sic).

   [11]  Page 17 Dr R’s report dated 1/3/2010

5. The father had possession of that report for about nine months when he made an application for recovery based on a repetition of the allegations of abuse of C and risk to both children.

6. In June 2011, in her second report, Dr R[12] says:

   The parental failures, especially evident in [the father’s] behaviour, in the last eighteen months are of great concern as they have been unable to create the certainty [B] requires.  [B’s] needs must have priority in future orders, which should finalise the legal proceedings and make allowances for significant changes in the children’s lives to occur through mediation. 

   [12]  Page 12 Dr R’s report dated 2/6/2011

7. On the basis of the matters set out above, the Court finds that there is evidence which satisfies it that it would not be in the best interests of the children for their parents to have equal shared parental responsibility.

8. Accordingly, the presumption of equal shared parental responsibility is rebutted.

Parental responsibility

1. The issue of parental responsibility therefore remains to be determined.  That determination will not however trigger for consideration how much time is to be spent between the children and each of their parents.

2. In the Full Court decision of Goode v Goode (2006) 46 Fam LR 422 at 436[47] their Honours say this:

   … even if the presumption of equal shared parental responsibility is not applied and neither party seeks an order for equal time (or by implication substantial and significant time), the court is nonetheless required to consider, in determining what is in the best interests of the child, the arrangements that will promote the child’s best interests.

3. In this matter the parents reached agreement on the issue of time to be spent.  The Court considered in making the relevant orders by consent, that the arrangements did promote the best interests of both children.

4. The options appear to be an order that:

   1.Each parent has parental responsibility (analogous to the situation prior to the making of any parenting order).

   2.The parents have shared parental responsibility for some or all of the major long-term issues.

   3.One parent has sole parental responsibility.

5. Section 65DAC of the Act says this:

   1.        This section applies if, under a parenting order:

   (a)2 or more persons are to share parental responsibility for a child;  and

   (b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

   2.The order is taken to require the decision to be made jointly by those persons. 

   3.The order is taken to require each of those persons:

   (a)to consult the other person in relation to the decision to be made about that issue;  and

   (b)to make a genuine effort to come to a joint decision about that issue.

   4.To avoid doubt, this section does not require any other person to      establish, before acting on a decision about the child communicated by one of those persons, that the decision has been     made jointly. 

6. The obligation does not relate to issues that are not major long term issues (s65DAE).

7. An order for shared parental responsibility would mean that either parent could raise a relevant major long term issue triggering the obligations to consult and make genuine efforts to come to a joint decision.

8. These parties are at this time unable to consult.  They do not trust each other.  They do not communicate at all.  Through their counsel they each indicated that they would use the clinical psychologist who has been appointed and a registered family dispute practitioner to make parental decisions.  There are serious consequences of these stated intentions of the parties.  The proposed involvement of a clinical psychologist and family dispute practitioner would be a cumbersome process of regular consultation.  The more serious consequence is that the work of the clinical psychologist could be adversely affected.  Her job will be to monitor and form a clinical opinion of the behaviour and psychological wellbeing of the children, then to advise the parents of her opinion.  In the event that the parents do not agree on whether to accept that advice, the parents propose to resolve that dispute with the dispute resolution practitioner.  If they cannot, the matter would be the subject of a further application and litigation.  If one parent accepted advice and the other did not, the disaffected parent may urge a change of expert or withdraw from the process.  The benefit to the children would be lost.

9. The parties have a clear history not only of conflict, but considerable disdain for each other. 

10. The mother makes allegations of past domestic violence against her by the father[13] all of which the father denies.

    [13]  Pars 11-19 affidavit of mother sworn 2/11/2010

11. The mother makes allegations of cruel teasing of the children by the father[14]  likewise denied by the father. 

    [14]  Pars 63-65 affidavit of mother sworn 2/11/2010

12. The mother has been infuriated and distressed by the allegations the father has made about her own father to people local to the Town 1 community.  She denies any misconduct by her father towards her in her childhood or towards C.  She concedes abuse as a child by a family friend and asserts she told the father.

13. At least in May 2011 the father continued to hold the belief that C has been abused, although he accepts that there is no evidence to substantiate that belief

14. The father regards the mother as “rude and arrogant”[15].  The parties attempted to use a communication book as a means of relating essential information about the health and welfare of the children in the care of each parent. This has not been successful.

    [15]  Par 503  affidavit of the father sworn 2/11/2010

15. The father and his mother appear to be critical of the extent to which the children both have been sick and have asked for medication.  The mother asserts that the father has failed to give the children the medication that is required and to allow B to wear his glasses. 

16. In relation to education the mother has enrolled the children at School 1 in Town 1.  The father enrolled both children in School 2 Newcastle Suburb 1 in anticipation of their attending that school if they lived with him.  He bought uniforms and intended to send B to that school in the brief period in February 2011 when the children came into his care as a result of the recovery order. 

17. Although both schools are faith based, there is no basis for assuming that the parties agree about the faith of the children or the religious instruction they will receive during their education.

18. There is evidence that the mother reported to the father accidents and illnesses of the children.  This is confirmed at least on one occasion by a letter from the father’s solicitors in relation to an incident where C’s arm was injured and she received treatment during the night.  That letter was highly critical of the mother and raised an enquiry about why the child was up late at night. 

19. These are some examples of the parties’ inability to come to agreement about decisions relating to the children. Based on this history, there is every reason to think that there would be highly charged disputes between the parties about major long term issues.

20. The mother has shown an ability and willingness to assist the children in maintaining a relationship with the father and with the father’s current wife. I am satisfied that the mother will advise the father of decisions she makes about major long term issues relating to the children. 

21. Accordingly, since the children will spend the great majority of their time with the mother, and the parties themselves have considered that the appropriate person for the children to live and spend the majority of time with is their mother, then the parental responsibility should be allocated to her.

22. The mother will have the obligation stated in the orders to advise the father of issues arising, to consider his point of view and advise of the decision made.

23. The father may feel frustrated, even diminished, by this arrangement.

24. However these orders are designed to ensure that both parents have a meaningful involvement in the lives of these children to the maximum extent consistent with their best interests.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 7 July 2011

Associate: 

Date:  7 July 2011