Towers and Towers

[2014] FCCA 2599

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOWERS & TOWERS [2014] FCCA 2599

Catchwords:
FAMILY LAW – Parenting – high conflict – poor communication – credit issues.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

MRR v GR [2010] HCA 4

Applicant: MS TOWERS

Respondent: MR TOWERS

File Number: PAC 4980 of 2012

Judgment of: Judge Altobelli

Hearing dates: 4-6 August 2014

Date of Last Submission: 6 August 2014

Delivered at: Wollongong

Delivered on: 25 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Cairns

Solicitors for the Applicant: Gonzalez & Co

Counsel for the Respondent: Mr Livingstone

Solicitors for the Respondent: JPM Legal

Counsel for the Independent Children's Lawyer: Ms Conte-Mills

Solicitors for the Independent Children's Lawyer: Phillip A Wilkins & Associates

ORDERS

1. The Father, Mr Towers, have sole parental responsibility in relation to the education and health issues of the Children X born (omitted) 2010 and Y born (omitted) 2012 (‘the Children’).

2. That for all other purposes, the parents Ms Towers and Mr Towers shall have equal shared parental responsibility for the Children.

3. That the Children live with the Mother:

   (a)From after school (including day care or pre-school) each alternate Friday or 4:00pm if the Friday is a non-school day, until the commencement of school Wednesday morning, or 10:00am if a non-school day; and

   (b)From 2015 onwards:

   (i)For half of the short school holidays between terms 1 and 2, 2 and 3, 3 and 4 by agreement and failing agreement for the first half in years ending with an odd number and the second half for years ending in an even number.

   (ii)During the Christmas holiday break from December 2015 until Y commences school for alternate weeks from the conclusion of the school terms until the commencement of school.

   (iii)After Y commences school for half the Christmas School Holiday period as agreed and failing agreement for the first half in even numbered years and the second half in odd numbered years.

   (c)From 4:00pm on the Saturday evening prior to Mother’s Day until 5:00pm on Mother’s Day if the Children are not otherwise living with the Mother.

   (d)On Christmas by agreement and failing agreement from midday on Christmas Eve until midday on Christmas Day in even numbered years and from midday Christmas Day until midday Boxing Day in odd numbered years.

   (e)Other times as agreed between the parties in writing.

4. The Children shall live with the Father at all other times.

5. The Children shall spend time with the Father on Father’s Day from 4:00pm on the Saturday evening prior to Father’s Day until 5:00pm on Father’s Day if the Children are not otherwise living with the Father.

6. The Father shall notify the Mother in advance of all medical and health or related appointments for the Children.

7. The Father shall authorise any treating health practitioner involved with the Children to provide information and reports relating to the treatment of either Child to the Mother.

8. The Mother is authorised to attend upon any treating health practitioner.

9. The Father shall notify the Mother in advance regarding any school function involving the Children or either of them to which parents are invited to attend or be involved.

10. The Father shall authorise any school (including day care or pre-school) attended by the Children to provide information including reports, parent/teacher interview information, newsletters to the Mother.

11. The Mother is authorised to attend upon any school attended by the Children.

12. Both parents are at liberty to communicate with the Children when they are living with the other parent.

13. Neither parent is to denigrate the other parent or allow a third party to do so in the presence or hearing of the Children.

14. The Mother take all steps to ensure the Children do not refer to her partner as “Daddy”.

15. Both parents shall notify the other as soon as reasonably practicable of any accident or emergency involving the Children that requires medical treatment or hospitalisation while the Children are in their care.

16. That for the purposes of changeovers not occurring at school, the Father shall deliver the Children to the Mother at a location which is approximately half way between their respective residences and the Mother shall return the Children to the Father at this location.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

PAC 4980 of 2012

MS TOWERS

Applicant

And

MR TOWERS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about two children, X, born (omitted) 2010, four years old, and her brother, Y, born (omitted) 2012, aged two years old.  The Applicant is their mother.  She is 27 years old.  The Respondent is their father, who is 34 years old.  The parents are unable to agree about where the children should live, and how much time they should spend with the other parent.  These reasons for judgment explain why the Court has made the orders that it has made.

Background

1. The parents were in a relationship for about eight years.  They married in (omitted) 2005, and separated in July 2012.  In the immediate period after separation the children remained living with their father and spent no overnight time with their mother until the first of a long series of Orders was made in February 2013. 

2. Since separation the children have continued to live with their father in the home of the Paternal Grandparents.  He works part-time in his parents’ business.  The Mother has re-partnered since separation with Mr A.  He was a family friend known to the Mother, Father and the children.

3. The relationship between the parents was an unhappy one.  The evidence indicates that they both make quite serious allegations against the other about violence, abuse, neglect, excessive consumption of drugs and alcohol, and mental health concerns.  What becomes patently obvious from the evidence is the insuperable communication difficulties that exist between them, as well as the non-existent trust. 

4. It is often the case that the history of the litigation between the parents provides a very accurate insight into the current state of their relationship, and their capacity for cooperative parenting.  To give credit to the parents, they eventually settled not just the property proceedings between them, but also the property proceedings that the Mother had commenced against the Paternal Grandparents.  Whether these settlements reflect a pragmatic reality that settlement was better than the alternative of litigation, rather than trust and the ability to communicate, is another thing. 

5. This case has been in Judge Dunkley’s docket since December 2012, but was heard by myself.  The first Order His Honour made was on 11 December 2012.  It is significant to note that X was two years old at the time, about to turn three, and Y was only nine months old.  Most of the children’s lives, therefore, have involved litigation about them. Judge Dunkley ordered the children to live with their father, and spend time with their mother, with changeover to take place in the foyer of (omitted) Police Station.  On 12 February 2013 His Honour made further interim Orders relating to the children, including one for equal shared parental responsibility, for the children to live with the Father and to spend time with their mother.  This time the orders provided for urinalysis.  On 20 June 2013, His Honour made further Orders in relation to the children, this time suspending the Mother’s time until 2 July.  On 2 July 2013 his Honour discharged the order suspending the Mother’s time and reinstated contact, but varied it in relation to Y.  On 12 August 2013, further Orders were made relating to the children, this time by consent.  On 13 December 2013, Orders were made by consent again, this time dealing with Christmas Eve, Christmas Day and Boxing Day.  On 31 July 2014, the Mother settled her claim against the Paternal Grandparents and then, on 4 August 2014, the parents resolved their property case. 

6. As foreshadowed before, this procedural history hardly engenders confidence in the ability of the parents to manage conflict, or to communicate, and it provides ample insight into trust issues.

The competing proposals at the final hearing

1. The children were represented by their own lawyer, an Independent Children’s Lawyer.  The Independent Children’s Lawyer proposed as Final Orders that the Father have sole parental responsibility in relation to education and health issues, but otherwise the parents have equal shared parental responsibility.  The Order proposed that the children live with their mother in week 1 from after school Friday to before school Monday, and in week 2 from after school Monday to before school on Wednesday, as well as half the school holidays.  The children would live with their mother at all other times.  By the time of closing submissions, Counsel for the Independent Children’s Lawyer conceded that another option available to the Court was for the Mother to have the children in her care for one block period, as opposed to two block periods each fortnight.

2. The Applicant Mother’s proposal was contained in her Amended Application filed 25 October 2013.  She proposed equal shared parental responsibility and, in effect, an equal time arrangement in blocks of three nights, and four nights.  However, once X reached school age, the children would live with her, and spend time with their father from Thursday to Sunday on the first, third and fourth weekend of each month, and for half of the school holidays. 

3. The Father’s proposal at the final hearing was contained in a Minute of Order annexed to the case outline of his Counsel, Mr Livingstone.  The Father proposed that he have sole parental responsibility, that the children live with him, and spend time with the Mother each alternate weekend from Friday at 5:00pm until Sunday at 5:00pm, as well as during school holidays and special occasions.

4. The precise Orders sought by the parents and the Independent Children’s Lawyer are reproduced in the first schedule to these reasons. 

The evidence

1. The Mother relied upon the following documents:

   ·Amended Initiating Application, filed 25 October 2013;

   ·Affidavit of Ms Towers, sworn 8 October 2012

   ·Affidavit of Ms Towers, filed 10 December 2012;

   ·Affidavit of Ms Towers, filed 29 January 2013;

   ·Affidavit of Ms Towers, filed 31 July 2014;

   ·Proof of evidence document of Mr A (the Mother’s partner), dated 4 August 2014; and

   ·Proof of Evidence document of Mr A, sworn 5 August 2014.

   Both the Mother, and Mr A were cross-examined.

2. The Father relied upon the following documents:

   ·Amended Response, filed 15 May 2013;

   ·Affidavit of Mr Towers, filed 11 July 2014;

   ·Affidavit of Ms M (the Paternal Aunt), filed 4 July 2014; and

   ·Affidavit of Ms A (the Paternal Grandmother), filed 4 July 2014.

   The Father and Ms Towers were cross-examined.  Ms M was not cross-examined.

3. The Independent Children’s Lawyer relied upon the following documents:

   ·Family report by Mr J dated 16 September 2013.

   Mr J was cross-examined.

4. For ease of reference, after setting out the applicable law these reasons for judgment will deal with the evidence of Mr J first, and then examine all of the evidence by reference to the relevant primary and additional considerations set out in s.60CC of the Family Law Act 1975, as well as other relevant statutory provisions.  As will be seen in the discussion about Mr J’s evidence, his Report was of far less assistance to the Court than was his oral evidence. 

Applicable law

1. In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

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

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     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.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (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.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) 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.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     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.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (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;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (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;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (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;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (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 following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (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;

   (m)  any other fact or circumstance that the court thinks is relevant.

1. In MRR v GR [2010] HCA 4, the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "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."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n 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".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

The evidence of Mr J, the Family Consultant

1. Mr J's Report is dated 16 September 2013.  His description of the background to the dispute and the current arrangements for the children is consistent with the evidence.  His description of the Mother’s proposal is also consistent with the evidence.  He records, however, that the Father indicated to him that he would have “no problem” with the possibility of equal care, subject to the need for the parents to live closer to each other.  As it turns out, and having regard to the Father’s evidence, the Court is less confident that the Father’s statement to Mr J represented how the Father truly felt at the time. 

2. Mr J’s description of the issues in dispute and the issues identified is consistent with the evidence before the Court, particularly his description of the allegations that each parent made against the other.  Interestingly, and a matter that will assume greater significance in these reasons, at paragraph 10 he recorded the Mother’s feeling that “she remains angry with him” – that is, the Father.  Both her distrust of him, and his distrust of her, permeates what they each told the Family Consultant, and which he has duly recorded.

3. The observations recorded of the interaction between the children and the parents were unremarkable.  Both children seemed to interact freely, and appropriately, with both parents. 

4. This important observation is found at paragraph 37, part of Mr J’s evaluation:

   What the state of Ms Towers’ mind following the separation, and the animosity which may have then applied, it was not apparent the parties’ relationship is now overtly hostile.  Ms Towers said that although she remains angry with Mr Towers, she is able to contain her emotion so that the children’s love for him will not be comprised.  She said she is able to talk with him about the children, and to use a communication book constructively.  Likewise, Mr Towers said that he and Ms Towers are able to communicate positively at changeover.  In addition, during the observation session, the parents were able to remain together amicably, albeit briefly, in the same room.

5. Furthermore, at paragraph 43 the Family Consultant states:

   Therefore, if it is found probable that Mr Towers remains sober and drug-free, then equal care emerges from this assessment.  Given the children’s tender years, it is important that they remain substantially involved with both parents so that the foundations of their future relationships are strengthened.  The parties indicated some agreement to an arrangement, which approximates equal care, and they appear to be able to communicate productively regarding the children.  Ms Towers is about to enter a live-in relationship with a person with whom the children are comfortable and familiar.  She indicated that she does not intend to move away from Sydney, and it seems she and Mr A would be able to reside in an area close to the father.  Mr Towers’ domestic arrangements are such that he has the support of his parents, and he is able to sustain sufficient flexibility to maintain family employment and to care for the children on the days they are with him. 

6. Mr J ultimately recommended an equal time arrangement based on four days: three days, together with half the school holidays.

7. It is important to recognise that Mr J's Report was based on interviews conducted on 7 September 2013, and by having regard to the Affidavits that had been filed as at that date.

8. At paragraph 43, he refers to a number of important issues.  His assumption that the Father remained sober and drug‑free is, as it turns out, entirely consistent with the evidence.  It is clear that the parents are no longer in agreement about equal time.  The Mother has, in fact, entered into a relationship with Mr A, who is a person that the children are comfortable and familiar with.  The Court, in fact, accepts that the Mother has no intention to move away from Sydney.  The evidence indicates, however, that the Father is committed to moving to a different part of Sydney that would make it very difficult, if not impossible, to implement equal time.  It is also clear, however, that the Father’s move would not take him away from the support system provided by his parents.

9. Almost a year had passed between the date of the interviews, and the date that Mr J was cross‑examined.  Mr J was cross‑examined last, after the Court had heard extensive evidence from both parents.  By the time Mr J was cross‑examined, the continuing difficulties in the parents’ relationship was patently obvious from the evidence, and most certainly so for the experienced Counsel representing the parents and the Independent Children’s Lawyer.  Ms Conte‑Mills, Counsel for the Independent Children’s Lawyer, commenced the cross‑examination.  She explained in questioning, entirely consistent with the evidence, that neither the communication book, nor the SMS communication between the parents was working effectively. Mr J quite quickly, and appropriately, acknowledged that if the parents were relying on a communication book, it was a contra‑indicator to equal time but, moreover, if the communication book was not working, it was a further contra‑indicator against equal time.  By the time the difficulties that the parents were having in terms of arranging and attending appropriate medical appointments in relation to Y were explained to him, Mr J stated words to the effect that, in that situation “equal care is out the window”. 

10. Notwithstanding this, he remained of the view that both children had a good relationship with both parents and that neither had deficits in their parenting capacity.  He did express concern, however, about the children living with one parent in what he described as a “climate of hostility” and said that if one parent was generating this, that parent should not be the primary carer of the children.

11. When it was put to Mr J that the evidence seemed to indicate the Mother’s continuing, and strongly felt distrust, and disrespect of the Father, even so long after the date of separation, Mr J began to have doubts about whether the Mother had the capacity to change.  He intimated that she probably needed counselling.  He did not believe, based on the evidence put before him, and his own observations, that the Father needed counselling or therapeutic assistance with drug, alcohol and anger management issues, given that his understanding of the manifestations of this behaviour was that it was reactive and situational, rather than something less transient.

12. He was of the view that if the Court concluded that equal shared parental responsibility was not in the children’s best interests, a substantial and significant time order was appropriate.  He felt strongly about the inappropriateness of a changeover at a police station, preferring a public place or, in time, a school.  He did express concern about the children’s future development if the high level of conflict continued, but did also remain committed to the idea of substantial and significant time for either parent.

13. Counsel for the Mother, Mr Cairns, had little cross‑examination.  This is unsurprising given the recommendations in the Report.  Counsel for the Father, Mr Livingstone, had quite a few things to put to Mr J.  For example, Mr J expressed the view that it would be beneficial to Y to attend preschool before he goes to school, and that there was benefit in that preschool being where his sister goes to school.  When it was put to him that the Mother perceived the Father’s desire to get X to preschool as delegating parenting, his observation was that this was indicative of a lack of faith in the Father’s parenting capacity.  Mr J was clearly concerned about the lack of appropriateness of the children referring to the Mother’s partner as “daddy”, particularly when this occurred before they commenced cohabitation.  Whilst Mr J found it hard to be critical of Mr A in this regard, he was unequivocal about the inappropriateness of this, even in circumstances where the children called their father the (country omitted) word “Baba.”  The implied concern, of course, was about the lack of insight on the Mother’s part in encouraging this to take place, a matter which is, in fact, reflected in the evidence.

14. Mr Livingstone put to Mr J an incident that occurred on Mother’s Day 2014 at changeover at (omitted) police station.  More will be said about this incident below, but he agreed that the incident was of concern, particularly how the Mother dealt with it.

15. Ultimately, Mr Livingstone elicited from Mr J the concession that if the parental relationship had actually deteriorated since separation, even after each parent has undertaken parental education, the soundest prediction would be that the conflict would continue into the future.

16. Finally, in response to a question from the Bench about the difficulty of identifying the initiator of conflict, Mr J indicated that this was often reflected in what a parent said or did, and that the initiator manifested, at the very least, immaturity as a parent. 

17. As it turns out, having regard to the oral evidence of Mr J, little weight can be placed on the recommendations contained in his Report.  Indeed, the totality of the evidence demonstrates that paragraph 37 of his Report is quite wrong, and whilst it was not put to him in these terms, Mr J readily indicated in the witness box that if the matters put to him were correct, shared care was certainly contra‑indicated, and equal shared parental responsibility was possibly contra‑indicated.  Nonetheless, his professional opinion is that even if the matters put to him were correct, a substantial and significant care arrangement was still beneficial for the children, and that both parents had the capacity to sustain the same.

Credit Findings

1. It is regrettably necessary in this case to make findings as to credit.  The evidence of the parents was divergent in many respects and, particularly for the Mother, her stated concerns were inconsistent with the Orders that she sought.  It is, therefore, necessary for the Court to satisfy itself about credit issues, in order to independently ascertain the appropriateness of the proposals put before it. 

2. Issues in relation to the Father’s credit may be dealt with very quickly.  He was honest, disarmingly so.  This is particularly the case in relation to the past problems he has had with marijuana and alcohol consumption.  He did not seek to minimise the nature and extent of his past problem, either in his Affidavits, or in cross‑examination.  What he disclosed was consistent with the independent evidence produced to the Court on subpoena from his treating doctors.  He was candid in the description of the very difficult relationship that he had with the Mother both before and after separation, their lack of trust for each other, the frustrations he felt about their communication difficulties, and in terms of his assessment of their future prospects for co‑parenting.  The evidence that he gave about incidents involving the Mother during their relationship when the police were called is, again, consistent with the records produced by the New South Wales Police.  He was responsive in cross‑examination and at no time created the impression that he was avoiding the question, or even minimising the issue in respect of which questions were being asked.  From the credit perspective, the Father was an impressive witness.

3. Regrettably, the same conclusion does not apply to the Mother.  She was frequently unresponsive in answering questions.  She was warned by the Bench at least once in this regard.  Her demeanour and attitude at times conveyed a measure of disdain for the Court process.  Cross‑examination quickly revealed significant inconsistencies within her own evidence, and between the evidence she gave to the Court and statements made by her to third parties recorded in business records such as COPS entries.  She provided an inadequate explanation as to why she disclosed her Aboriginal origins in the Amended Application filed 25 October 2013, but not in the original Application filed at Camden Local Court on 9 October 2012.  In two of her four Affidavits (for example, paragraph 24, Affidavit of 8 October 2012), she categorically makes allegations against the Father “and his parents” in relation to:

   ...assault, sexual assault, repeated derogatory taunts, intentionally damaging or destroying property, unreasonably denying me the financial autonomy that I otherwise would have had, preventing me from keeping connections with my family and friends, and unlawfully depriving me of my liberty.

   By the time of her third Affidavit, 25 January 2013, at paragraph 25 the allegation is amended so that it is directed to the Father alone.  No satisfactory explanation was given of this obvious change in very serious allegations.  Cross‑examination revealed that her allegation of sexual assault against the Father was not substantiated in any of her four Affidavits, and what she did describe as the sexual assault in cross‑examination was disclosed for the first time in the witness box.  The allegations that she made about the financial control exerted by the Father is plainly inconsistent with a document annexed to the Paternal Grandmother’s Affidavit.  The allegations about isolation, and controlling relationships is again inconsistent with the evidence of the Father, photographs he produces, and the evidence of the Paternal Grandmother.  Moreover, the serious allegations she makes against the Father are strikingly inconsistent with the proposal that she herself advances to the Court.  The Mother’s evidence about the incident in which she assaulted the Paternal Grandmother is inconsistent with the evidence of the Paternal Grandmother, and, significantly, inconsistent with the police report contained in the COPS entry.  In cross-examination, she categorically denied that she assaulted her mother-in-law, but she was charged, convicted and fined in respect of the incident, an Apprehended Violence Order was entered against her and then she had the temerity to tell the Court that she refused to pay the fine in principle, a matter that hardly engenders confidence in the Mother’s credit, let alone willingness to comply with Court Orders.

4. The Mother’s explanation for not complying with Orders for urinalysis was plainly unconvincing.  She said it was a misunderstanding on her part, and that she thought that the Order had been made against both parents as a matter of fairness.  The inference is that she did not have a problem.  She explained to the Court that she “did not take it seriously at the time”.  As it turns out, the Mother’s past drug use was a live issue in this case.  The Mother’s explanation for failing to provide the drug test as ordered is glaringly inadequate, particularly in circumstances where it led to the Court suspending the Order for the children to spend time with her.

5. The Mother was challenged in cross-examination about the amount of time that the younger child Y slept in her bed, prior to separation.  She denied that this was the case.  When confronted with paragraph 14 of her Affidavit 8 October 2012 in which she deposed “when I left the home in June 2012, my son was still sleeping in my bed with me and I was breastfeeding him,” she sought to explain that in fact what happened is that she would put him back in his cot after feeding, a matter nowhere deposed to.

6. She was challenged about her assertion that she was held captive in the Father’s parents’ home, where they lived.  She explained that she was not using figurative language, that is, she meant literally captive.  This is inconsistent with the evidence of both the Father, and the Paternal Grandmother.  It is inconsistent with the proposal she puts to the Court.  Moreover, she agreed that she never complained about this to her treating doctors, the clinics where the children were taken, to the   Aboriginal elders, to police, and to anyone else including any passers-by.

7. In relation to her use of marijuana, she described herself as having smoked it once.  When challenged about that, she was confronted with paragraph 22 of her Affidavit of 8 October 2012 in which she deposed:

   In respect of my own personal use of drugs, Mr Towers did encourage me at the commencement of our relationship to use marijuana with him.  I did engage in this for a short period about six years ago, and it was limited only to social use.

   Her initial response was to deny the correctness of the statement at paragraph 22, and to blame it on her lawyer.  Within seconds, however, she changed direction and sought to explain that what she was trying to say was that she did not have an addiction to drugs.

8. She was challenged about the family violence allegations made against the Father.  There was an incident at the home on 27 June 2012 involving an argument over tobacco and rolled cigarettes.  The police were called.  She agreed she told them that she had no fears for her safety.  When confronted with the record that she wanted no further action taken, she denied this and said that she asked for an Apprehended Violence Order.  When given the opportunity to explain what happened, however, she said that she “got bad advice from a domestic violence worker not to turn up” and so it was dismissed.  Her explanation was thoroughly unconvincing.

1. When cross-examined about a medical record of a mental health assessment conducted on her on 29 October 2010, in which the doctor records her description of having a “good relationship with the Father”, her only explanation was that she could have been referring to her feelings in the past.  This is inconsistent with her assertion that, in the context of a relationship that commenced early 2004, the Father had perpetrated the litany of behaviours described above.

2. The Mother denied past mental health issues, and in particular that she had disclosed suicidal thinking following her decision to abort a child in 2008.  She was confronted with records dated January 2009 from Dr M in which he records that she presented with suicidal thinking.  At first she said that she never had such thoughts.  Then she explained that she never tried to commit suicide, and then opined that maybe the doctor was just summarising things generally.

3. The Mother was cross-examined about paragraph 28 of her Affidavit sworn 31 July 2014 in which she says:

   Since the separation I have not told the father I want to move to (omitted).  I have established myself here in the (omitted) area, my partner lives in the area as does his family;  I have groups that I attend in the area. 

   The fact is, and she eventually agreed to this, that she lives with her partner in the same house, not just in the same area, and this has been the case for some time.  It is unclear why the Mother would be so equivocal about this fact, but it certainly does not engender confidence by the Court in her evidence.

4. The totality of the matters set out above lead the Court to have quite serious concerns about aspects of the Mother’s evidence, particularly her allegations about family violence and abuse, and her evidence about her own past mental health problems.  This taints all of her evidence, however, which will thus need to be considered very carefully.

5. The Court has no reservations about the evidence of the Paternal Grandmother, and the Paternal Aunt Ms M, was not required for cross-examination.

Meaningful Relationship

1. This is not a determinative consideration on the facts of this case.  All proposals advanced to the Court would ensure that these children have the benefit of a meaningful relationship with both of their parents.

Protecting the Children from Harm

1. Despite the quite serious allegations that each parent makes against the other, the proposals they advance before the Court are quite inconsistent with any concern that the children need to be protected from harm whilst in the other parent’s care.  Even if this were not the case, however, the evidence seemed to suggest that there is little substance in the Mother’s family violence allegations, and that such issues as existed about the Father’s drug and alcohol consumption, and the Mother’s mental health, are past issues that are no longer relevant to a decision about the future of the children.  This is consistent with the view formed by the Family Consultant, Mr J.

Nature of Children’s Relationships

1. Neither parent disputes that the children have a good relationship with the other.  This is supported by the observations of the Family Consultant.  It is also apparent that the children have a good relationship with the Paternal Grandparents with whom they have grown up, for most of their lives.  The Paternal Grandmother, in particular, is involved on a daily basis in the care of the children, though that is in an assisting role during the limited hours each day when the Father is working in the family business.  This is not a determinative consideration.  All of the proposals before the Court will enable the children to continue to have good relationships with both parents, and the Paternal Grandparents, as well as all of the other significant adults in their lives to date.

Parental Involvement

1. Section 60CC(3)(c) refers to the extent to which each parent has taken, or failed to take, the opportunity to participate in decision-making, spend time with the children, and communicate with the children. It is a part of the Father’s case that the Mother has not taken advantage of all of the opportunities that he has afforded since separation for the Mother to become involved in decisions, spend time with the children, and communicate with them. There is some substance to this contention. For example, the explanation that the Mother gives in her evidence about the delay between the date of separation and the date when proceedings were actually commenced in the Local Court at Camden is unconvincing and, to a certain extent, seeks to externalise responsibility to third parties (for example, Legal Aid or her lawyers) a tendency the Mother has already demonstrated in her evidence, mentioned above. The Court prefers the Father’s evidence that if he had been approached in this period immediately after separation he would have facilitated the Mother spending time with the children.

2. After the first of the series of contact orders were made in her favour, the Court is not satisfied about the Mother’s explanations as to why she did not attend on several occasions.  In this regard, one example is the evidence that she gives at paragraphs 100-106 of her Affidavit of 25 January 2013.  Even if the Court accepts this evidence at face value, which it must because it was not challenged, it simply does not adequately explain the Mother’s inaction in the relevant period. 

3. Another example of declining to participate in making decisions about the children related to the Father’s proposal to the Mother that X’s day care be extended from one day per week.  She agreed in cross-examination that the Father had proposed this.  When it was put to her that she declined the proposal, she sought to explain this on the basis that she was prepared to do so provided the Father gave her an extra night each week, and thus she would take X to day care.  This incident probably says far more about the Mother’s attitude to the responsibilities of parenthood, than it does about participation in decisions.  It is regrettable that the Mother saw this as an opportunity to bargain with the Father for extra time, rather than participate constructively in a decision that would have been of obvious benefit to X.

The Likely Effect of Change for the Children

1. To a certain extent, change is inevitable for these children.  For example, X will start school next year, a very significant change in her life, indeed a milestone.  Each of the proposals advanced to the Court will involve change for them, involving, to one degree or another, periods of separation from the other parent.  The Father proposes to move the children to (omitted) where he will have independent accommodation for the children and himself, as well as work, and a proximity to family.  There are benefits to the children in this regard, but also the disadvantage of having to travel more to spend time with, or live with their mother.  The change proposed by the Mother probably represents the greatest change for the children, in that they will move from what even she acknowledged in cross-examination has been the Father’s primary care of them, assisted by the Paternal Grandmother, since the date of separation.

2. The strength of the children’s relationship with each parent, and the significant adults in their life, probably indicates an ability to cope with the potential changes in their lives that are thrown up as a result of the orders sought.

Issues of practical difficulty and expense

1. As indicated in the previous paragraph of these reasons, the Father’s proposal involves a relocation from the (omitted) area of Sydney, to the (omitted) area of Sydney.  The evidence from both parents suggested this did not create insuperable obstacles to any of the Orders that they propose.  The Mother certainly opposes the children moving away, but intimated that even if they did move away, and went to school in the (omitted) area as the Father proposes, she would nonetheless be prepared to do the travel associated with an equal time arrangement.  Whilst the issue really is whether this is in the children’s best interests, the Court accepts her evidence that she would probably do what needs to be done in order to make any parenting order work, noting of course her opposition to the move to (omitted).

Issues of parental capacity

1. At one level, there can be no doubt that each parent is able to provide for the physical needs of the children.  The Family Consultant had no doubts about this.  Both parents seem to acknowledge this capacity, in the other parent.  The Court’s only reticence, however, is in relation to their ability to meet the children’s emotional needs.  In discussing this, the Court acknowledges there is some risk of overlap between discussing the capacity of a parent to provide the child’s emotional needs, and a discussion about parental attitudes to the children and to the responsibilities of parenthood.

2. The Court’s concern is that the Mother is less able to provide for the emotional needs of the children than is the Father.  The starting point in this regard is the complete inability of the parents to communicate effectively with each other, even with the assistance of a communication book, and even though the issues are significant ones for the children.  This lack of ability to communicate leads to mutual distrust, and what the Court considers to be a significant risk that one parent may not be as able as the other to encourage the children’s continuing relationship with the other parent, a matter that the Court considers essential to meeting the children’s emotional needs.  Quite frankly, the Mother is the problem here, not the Father.  At no stage did the Court form the impression from the Father’s evidence that he was anything other than totally committed to encouraging the children’s relationship with their Mother in a substantive way.  By contrast, the Mother says she can, but her actions, and other evidence she gave, suggest to the contrary.

3. For example, the Mother’s seething, palpable distrust of both the Father, and the Paternal Grandmother, permeated all of her evidence.  In relation to the Paternal Grandmother, for example, the Mother said that she did “not like her at all”.  In relation to the Father, she said that he is “not evil, but manipulative”.  She had clearly convinced herself, based on what X told her, that all of the care of the children was provided by the Paternal Grandmother.  The Mother freely agreed that she is “not over it”, that is, her dislike of the Father. 

4. The evidence that the Mother gave, and her partner gave, about the children calling him “Daddy”, even before they commenced cohabitation, is of deep concern.  In the witness box, she struggled to see the problem from the children’s perspective of calling her partner “Daddy”.  When she was asked what would happen if the Court ordered her to stop allowing the children to call her partner Daddy she said words to the effect: 

   I’d be upset, Mr A would be heartbroken, I like the way the family is, I would have to consider it. 

5. The fact that the Mother would even have to consider complying with an Order, and struggled to see the potential confusion in the children’s minds of calling her partner “Daddy”, coupled with the fact that she refuses to pay a Court-imposed fine arising out of her assault of the Paternal Grandmother, all raise serious issues in this Court’s mind about her understanding of the children’s emotional needs, let alone her capacity to provide for them. 

6. One of the most important emotional needs that these children will have is for their Mother to be at least neutral in terms of the children’s relationship with their Father, and preferably for her to be positive about the same.  This Court has real concerns about her ability to do so.

Issues of maturity, sex, lifestyle and background of parents

1. This is not a determinative consideration.  For whatever reason, the Mother appears to have embraced her Aboriginal descent recently, and at a later stage of these proceedings.  The Father has no objection to this, indeed encourages it and would like to be able to attend events where, for example, X dances with her Mother.  The Mother’s response to this was frosty, to say the least. 

2. The children have, hitherto, enjoyed all the benefits of an association with their (country omitted) culture and heritage.  The Mother does not appear to object to this. 

3. The Court is satisfied that these children will have the benefit of exposure to the (country omitted) heritage of their father, and Aboriginal heritage of their mother.

Parental attitudes to the children, and to the responsibilities of parenthood

1. Prior to separation there can be no doubt that the Father demonstrated a very poor attitude to his children, and irresponsible parenthood, by engaging in the use of marijuana and excessive alcohol.  Even he realises this now.  The evidence suggests this is a problem in the past.

2. Both parents have failed their children through their inability to contain their conflict, both before and after separation.  Let there be no doubt about this – parents, including the parents in this case, fail their children when they cannot communicate effectively in relation to them.  Since separation the only difference between the parents is that the Father appears to have a keener insight into the problem, and its consequences, whereas the Mother at times signalled a false optimism about the future, which is plainly inconsistent with the present reality.  This is manifested in her proposal for equal shared parental responsibility in circumstances where, since separation, they have not been able to agree to additional time, they have not been able to agree to attending day care or spending extra time at day care, and they have not even been able to maintain a unified front when it comes to the provision of appropriate health services, especially for the child Y who has special needs.

3. The particular problems associated with the Mother and her attitudes about the responsibilities of parenthood, have become apparent from a close examination of events in the post-separation period.  The totality of the evidence allows the Court to find that there were a number of disturbing lapses by the Mother after separation.  It must be remembered that it was her case (disputed by the Father) that she was the primary carer of the children before separation and responsible for meeting their needs.  Assuming that to be the case, what became apparent from the evidence is that, by the time of separation, Y had not been vaccinated, a birth certificate had not issued in respect of him, and he was failing to gain weight in accordance with the relevant milestones.  When Y went into the Father’s care at the date of separation, however, all of these issues were quickly dealt with. 

4. An insight into the Mother’s attitude is given by the way she responded to questions about these topics, in cross-examination.  Firstly, the Mother sought to externalise responsibility for her inaction to others, including the Paternal Grandmother, and the Father.  This was plainly unconvincing.  Even if the Paternal Grandmother had in fact lost the documents to register Y’s birth, given the seriousness of the vaccination, it was incumbent on the Mother to do more.  Given that the Mother had retained Y’s blue book at separation, and did not provide it to the Father until directed by the Court, and long after separation, the Father was put in a position where he did not even know whether Y had been vaccinated.  When this was put to her in cross-examination her response was to the effect: 

   He says he was the primary carer, so he should have known. 

   This was a standard which, with respect to the Mother, she hardly applied to herself.  In any event, she certainly agreed that as between the two of them they could not agree about vaccination.

5. In relation to the issue of Y being underweight for his age, she asserted this was all the Father’s fault.  When it was put to her that she, being the alleged primary carer of Y, had failed to get him weighed before separation, she blamed this on the Father who was constantly drunk and under the influence of marijuana, according to her.  She could not tell the Court what Y’s weight was at the time of separation.  In any event, the evidence indicates that Y did not start to meet his weight milestones until coming into the Father’s care.

6. The Mother had to agree in cross-examination that even though they had both attended a specialist appointment in relation to Y’s turned eye, she had completely misunderstood the doctor’s advice about which eye Y had to wear a patch on.  She agreed that she had been putting the patch on the wrong eye.  She blamed this on the Father, asserting that he should have told her at changeover.  When it was explained to her that this was a perfect example of their inability to communicate, and be consistent about an important aspect of a child’s welfare, all she could say was to blame the Father again, pointing out that he should have noticed the problem at changeover.  The Mother’s consistent externalising of responsibility away from herself is yet another example of lack of insight, a poor attitude to the children, and to her responsibilities as a parent.

7. Returning to Y’s failure to achieve his weight milestone, the Mother said in cross-examination that there was no weight issue whilst Y was in her care.  However, she agreed, though, without telling the Father, she took the children to a doctor at (omitted) Hospital who diagnosed Y as having developmental delay about a month before the children went into the Father’s care.  The Mother freely acknowledged that she did not tell either the Paternal Grandmother or the Father about this.

8. It is clear that Y has some special health needs that need to be carefully attended to.  Whilst in his Father’s care, the evidence is that this has taken place.  The Mother’s attitude, based on the events set out above, do raise concerns about her levels of insight, her commitment and, indeed, her capacity to involve the Father, or even participate in decision-making about these special needs.

Violence and Family Violence Orders

1. Matters of family violence allegations have been discussed earlier in these reasons.  They are not determinative.

Parental Responsibility

1. The Mother seeks an Order for equal shared parental responsibility.  The Father seeks an Order for sole parental responsibility.  The Independent Children’s Lawyer proposes an Order for sole parental responsibility to the Father in relation to education and health issues, but in all other respects equal shared parental responsibility.

Has the statutory presumption set out in section 61DA been rebutted, based on subsection (4)?

1. Both the Father and Independent Children’s Lawyer submit that this is the case, where it is not the best interests of the children for the parents to have equal shared parental responsibility. The Court agrees. The analysis of the s.60CC considerations set out above quite strongly indicate some deficits in the Mother’s history of decision-making about the children, her capacity to meet their emotional needs, and her attitudes to the children and to the responsibilities of parenthood. By no means is the Father perfect, but he does offer more hope for the children in the future.

2. The Mother openly acknowledges her concerns about shared care at paragraph 55 of her affidavit of 31 July 2014.  She bases her concern on the fact that the parents do not currently have a good relationship, and do not have the level of communication that would make shared care work.  This is her own evidence.  It is undoubtedly correct.  It probably minimises the reality of the situation.   If she believes that shared care can’t work because of communication issues, it makes equal shared parental responsibility highly problematic.  The parental track record is hardly inspiring in this regard.

3. The Independent Children’s Lawyer is correct in submitting that the critical issues for these children are education and health issues.  These have been the problem areas in the past.  And in order to avoid an unsatisfactory situation of decisions about the children either not being made or not being made in a timely fashion, or without Court intervention, in relation to these issues, an Order for sole parental responsibility in this regard is appropriate.  However, in all other respects, equal shared parental responsibility is appropriate.

Equal time or substantial and significant time?

1. The Mother proposes equal time. The Independent Children’s Lawyer proposes substantial and significant time. The Father’s proposed Order is probably not a substantial and significant time Order, as it starts after the cessation of school on Fridays and concludes on Sunday nights. The question that is raised in s.65DAA of the Act is whether either is in the best interests of the children and reasonably practicable.

2. Even the Mother acknowledges, in her evidence, the difficulties associated with equal time because of the communication problems. The proposal for equal time, in her case, is a transitional issue to the children coming into her full-time care, even for a limited period. However, having regard to the analysis of the s.60CC considerations above, this Court cannot conclude that it is the children’s best interests. Moreover, an equal time arrangement cannot possibly be said to be reasonably practicable for the purposes of s.65DAA(5).

3. With great respect to these parents, they have no current or future capacity to implement an arrangement for equal time, and no current and future capacity to communicate with each other, particularly to resolve difficulties that might arise.  In any event, the Mother’s inability to support the Father’s relationship with the children would make an equal time arrangement a difficult one for the children to experience.

4. The Father’s proposal that the children live with him is more consistent with the evidence before the Court, and is supported by the Independent Children’s Lawyer.  However, his proposal that the children spend each alternate Friday to Sunday with their Mother is plainly insufficient, in terms of providing the opportunity for the children to continue a good relationship with her, and provides such limited opportunities for the Mother to become involved in the children’s schooling, as they progress into this phase of this life.

5. The Father’s proposal is inconsistent with the Family Consultant’s quite firm recommendations in this regard, and inconsistent with the Independent Children’s Lawyer’s proposal.  The Independent Children’s Lawyer’s proposal is clearly for substantial and significant time.  The children would spend three nights with their Mother over a weekend in week 1, and then two nights with their Mother during the school week that follows.  The proposal is consistent with the Family Consultant’s recommendations and does provide the children and the Mother the opportunity to maintain and develop their relationship, as well as for the Mother to engage the children in the activities that she proposes.

6. But why is an order for substantial and significant time in the children’s best interests, and reasonably practicable, when the same could not be said for equal time?  After all, the difference is only two nights per fortnight?  The Mother is entitled to know the answer to this question.  A number of issues have been raised relating to the Mother’s parenting that have clearly led the Court to decide that the children should be living primarily with their Father, but nonetheless spending substantial and significant time with her.

7. Less time with the Mother, and conversely more time with the Father, provides the Court with greater reassurance that the concerns raised about the Mother in these reasons for judgment will have less potential impact on the children and would, in any event, be negated by the stability of longer time with their Father.  In any event, the making of the modified sole parental responsibility order in favour of the Father means there is less scope for the concerns about the Mother in the past to be realised again in the future.

8. The only concern that the Court has about the Independent Children’s Lawyer’s proposal is that having two blocks of time each fortnight means greater travel for the children each fortnight between (omitted) and (omitted), where the Mother currently lives.  The fact that the changeovers will be at school during the school term, and, of course, once both children attend school, provides reassurance about the very tense changeovers that have hitherto taken place.  There is still the prospect for these problematic changeovers during changeovers associated with school holidays, and until both children start school.

9. By making it one block of time each fortnight, from after school Friday to before school on Wednesday, the children will have quality time with their Mother, and she will have the opportunity to be engaged with the children’s school community.  Of course, she will face the responsibility of taking the children to school each fortnight from (omitted) to (omitted).  But this is a responsibility she indicated she was prepared to take on.  Given the children’s ages, they should be able to cope with the absences from both parents for the periods in question.

10. To put the issue beyond any doubt, all of the evidence demonstrates to the Court that the advantages to the children of moving to (omitted) exceed the disadvantages of doing so.

11. The Order proposed by the Independent Children’s Lawyer was for “lives with”, rather than “lives with/spends times with”.  In circumstances where parental responsibility has been clearly defined, the Court can see no difficulty with such a proposal.  The proposed Orders in relation to school holidays appear appropriately child-focused, particularly from a developmental perspective.  The Order that the Mother take all steps to ensure the children do not refer to her partner as “daddy” or “dad” is entirely appropriate.

12. Having regard to all of the above matters, the Court is satisfied that the Orders proposed by the Independent Children’s Lawyer is in the best interests of the children and represents the best, most child-focused of the proposals before the Court.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:       27 November 2014

Schedule One

Orders sought by the Applicant Mother

1. The applicant mother and the respondent father are to have equal shared parental responsibility of the children namely X born on (omitted) 2010 and Y born on (omitted) 2012.

2. Until X attains school age the children (X and Y) live with mother for 7 nights in each 14 day cycle as agreed between the parties and failing agreement as follows:

Week 1:

(a)With the Mother from 9.00am on Wednesday until 5.00pm Saturday and for the same period in each alternate week thereafter;

(b)With the father from 5pm Saturday until 9am Wednesday and for the same period in each alternate week thereafter.

Week 2:

(a)With the Mother from 9am Wednesday until 10am Sunday and for the same period in each alternate week thereafter.

(b)With the father from 10am Sunday until 9am Wednesday and the same period in each alternate week thereafter.

1. Upon X reaching school age the children live with the applicant mother.

2. Upon X reaching school age the children spend time with the applicant father as follows:

   (a)From the conclusion of school on Thursday until 5pm on Sunday on the 1^st, 3^rd and 4^th weekend of each month; and

   (b)During the mid-year School Holiday Periods from Terms 1, 2 and 3 for half of the School Holidays as agreed in writing between the parties or failing agreement, for the first half in even numbered years, and for the second half in odd numbered years; and

   (c)During the School Holiday Period at the conclusion of Term 4, for half of the School Holiday Period as agreed in writing between the parties and failing agreement, for the first, third and fifth week of the School Holiday Period in even numbered years and the second, fourth and sixth week of the School Holiday Period in odd numbered years with changeover to occur as agreed between the parties or failing agreement, at 6.00pm each Friday; and

   (d)If the Children do not otherwise live with the Father in accordance with these Orders on the following days, then:

   4.1From 5pm Friday until 5pm Sunday on Father’s Day weekend; and

   4.2On the Father’s birthday at times agreed between the parties in writing and failing agreement from 3.30pm until 7.30pm in the event the Father’s birthday falls on a school day and from 10am to 5pm in the event the Father’s birthday falls on a day which the Children do not attend school; and

   4.3On each of the Children’s birthday’s at times agreed between the parties in writing and failing agreement from 3.30pm until 7.30pm in the event the Children’s birthday falls on a school day and from 10am to 4pm in the event the Child/ren’s birthday falls on a day which the Children do not attend school; and

   4.4For the purpose of the Paternal Grandparent’s birthday’s the Children will spend time with the Father as agreed in writing and failing agreement from 3.30pm until 7.30pm in the event the relevant day falls on a school day and from 11am until 3pm in the event the relevant days falls on a day which the children do not attend school.

   4.5For the purpose of Christmas Day as agreed between the parties and failing agreement from 12pm until 12pm Boxing Day in odd numbered years commencing in the year 2013.

   4.6For the purpose of Easter as agreed between the parties and failing agreement from 10am Good Friday until 10am Easter Sunday in even numbered years commencing in the year 2014; and from 10am Easter Sunday until 6pm Easter Monday in off numbered years commencing in the year 2015.

3. Should the children be spending time with their father in accordance with these Orders the father’s time shall be suspended to allow the children to spend time with the Mother for Days of Special Significance including;

   (a)From Friday at 5pm until 5pm Sunday on Mother’s Day weekend; and

   (b)On the Mother’s birthday at times agreed between the parties in writing and failing agreement from 3.30pm until 7.30pm in the event the Mother’s birthday falls on a day which the children do not attend school; and

   (c)On each  of the Children’s birthday’s at times agreed between the parties in writing and failing agreement from 3.30pm until 7.30pm in the event the child/ren’s falls on a day which the children do not attend school; and

   (d)For the purposes of Christmas Day as agreed between the parties and failing agreement from 12pm Christmas Eve until 12pm Christmas Day in off numbered years commencing in the year 2013; and from Christmas Day at 12pm until 12pm Boxing Day in even numbered years commencing in the year 2014; and

   (e)For the purpose of Easter as agreed between the parties and failing agreement from 10am Good Friday until 10am Easter Sunday in off numbered years commencing in the year 2013; and from 10am Easter Sunday until 6pm Easter Monday in even numbered years commencing in the year 2014.

4. Upon the Children attaining school age both the mother and the father are entitled to telephone the Children on days the Children are not living in their care.

5. For the purpose of telephone communication both the Mother and Father will keep each other informed of their landline telephone number and mobile telephone number.

6. In the event of any medical emergency involving the Children, including but not limited to serious illness, accident or hospitalisation, the party with the care of the child/ren;

   (a)Immediately contact the other party; and

   (b)As soon as practicable, provide the other party all the documentation and information in their possession regarding the incident;

   (c)Each party do all acts and things as may be required to;

   8.1Notify the other of the name of any general practitioner, paediatrician or other specialise who treats the Child/ren when the Child/ren are in that party’s care and provide to that person any authority necessary so that the other party can contact such person to obtain all information regarding the treatment and care of the child/ren; and

   8.2Authorise any medical practitioner or specialist treating or attending to the Child/ren to provide to the other party (at the other party’s expense), information or documents including medical reports and details of any treatment of the Child/ren from time to time.

Orders sought by the Respondent Father

1. That the Applicant have the sole parental responsibility for the children of the marriage, namely X born (omitted) 2010 (hereinafter referred to as “ X”) and Y born (omitted) 2012 (hereinafter referred to as “Y”) for making decisions about the long term care, welfare and development of X and Y.

2. That X and Y live with the Applicant.

3. That X and Y spend time with the respondent each alternate weekend from Friday at 5pm until Sunday at 5pm commencing from the second Friday after the date of these orders.

   3.1That for the purposes of spending time with X and Y, the applicant will deliver them to the residence of the respondent for the commencement of her time with them and the respondent will return them to the residence of the applicant at the conclusion of their time with her.

4. In addition to the time that X and Y spend with the respondent as set out in Order 3 above, on the following occasions of special significance, that X and Y spend time with the parties as follows:

   School term holidays being April, July and September

   4.1X and Y will spend time with the respondent as follows:

   4.1.1For the first week of each of these school holiday periods.

   4.2X and Y will spend time with the applicant as follows:

   4.2.1For the second week of each of these school holiday periods.

   4.3A week is deemed to be a period of seven days.

   4.4For the purposes of these orders the school term holidays are deemed to commence at 5pm on the first Sunday after the school term ceases and changeovers will occur at 5pm on the following Sunday.

   4.5The applicant will deliver X and Y to the residence of the respondent to commence these orders, and the respondent will return them to the residence of the applicant when changeover is to occur in accordance with order 4.4.

   Christmas school holidays from December 2015 to December 2018

   4.6These orders shall commence for the Christmas school holiday period commencing in December 2015 until the commencement of the Christmas school holiday period in December 2018.

   4.6.1X and Y will spend time with the applicant each alternate week from 10am on the first Sunday after the school term ceases until 10am the following Sunday when changeover will occur.

   4.6.2X and Y will spend time with the respondent each alternate week from 10am on the second Sunday after the school term ceases until 10am the following Sunday when changeover will occur.

   4.6.3Changeover will occur by the party with whom X and Y are spending time with at the time of changeover delivering them to the party’s residence to whom they are to commence spending time with.

   Christmas school holidays from December 2018

   4.7These orders shall commence for the Christmas school holiday period commencing in December 2018.

   4.7.1X and Y will spend half of the Christmas school holiday period being the second half with the applicant.

   4.7.2X and Y will spend half of the Christmas school holiday period being the first half with the respondent.

   4.7.3For the purposes of these orders the Christmas school holidays are deemed to commence at 10am on the first Sunday after the school term ceases and changeover shall occur at 10am on the Sunday closest to the middle of the school holiday period.

   4.7.4Changeover will occur by the party with whom X and Y are spending time with delivering them to the residence of the party for whom time with them is to commence.

   Christmas Day

   4.8That notwithstanding any other order, X and Y spend time with the applicant as follows:

   4.8.1From 2pm Christmas Day until 10am Boxing Day in even numbered years.

   4.8.2From 10am Christmas Eve until 2pm Christmas Day in odd numbered years.

   4.9That notwithstanding any other order, X and Y spend time with the respondent as follows:

   4.9.1From 10am Christmas Eve until 2pm Christmas Day in even numbered years.

   4.9.2From 2pm Christmas Day until 10am Boxing Day in odd numbered years.

   Easter Sunday

5. 5.0.1    That notwithstanding any other order, X and Y spend the (religion omitted) Easter Sunday with the applicant from 10am until 5pm.

   5.0.2That notwithstanding any other order, X and Y spend the (religion omitted) Easter Sunday with the respondent from 10am until 5pm.

   5.0.3That notwithstanding any other order, in the event that the (religion omitted) Easter Sunday and the (religion omitted) Easter Sunday falls upon the same day, X and Y shall spend time with the respondent from 10am until 2pm on that day, and spend time with the applicant from 2pm until 6pm on that day.

   5.0.4Changeover will occur by the party with whom X and Y are spending time with delivering them to the residence of the party to whom time with them is to commence.

   Birthdays

   5.1That notwithstanding any other order, on each of the birthdays of X and Y, both children spend time as follows:

   5.1.1if such days fall on a weekday, with the parent who does not otherwise have the care of them from 4.30pm until 6.30pm.

   5.1.2if such days fall on a weekend or during school holidays, with the parent who does not otherwise have the care of them from 2pm until 6pm.

   Mother’s Day and Father’s Day

   5.25.2.1    That notwithstanding any other order, if Mother’s Day falls on a day when the respondent does not otherwise have the care of X and Y, that they spend time with the respondent from 5pm Saturday until 5pm on Mother’s Day.

   5.2.2That notwithstanding any other order, if Father’s Day falls on a day when the applicant does not otherwise have the care of X and Y, that they spend time with the applicant from 5pm Saturday until 5pm on Father’s Day.

   Other times by Agreement

   5.3The applicant and respondent may agree to time with the children at any other times as agreed by them.

6. 6.0.1    That for the purposes of changeover, unless otherwise ordered, will occur by the party with whom X and Y are spending time with delivering them to the residence of the party to whom time with them is to commence.

   6.0.2The time that the respondent spends with X and Y in order 3 above is to be suspended during the school holiday periods outlined in order 4 above.

7. 7.0.1         The applicant and respondent will both be entitled to attend all events involving the children including;

   a. sporting fixtures
   b. extra curricula activities that allow for parental attendance
   c. school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.

   7.0.2The parent who has the children in their care of the day of such activity in order 7.0.1 above will ensure the children attend such activity, be responsible for their day to day care at such event and the children’s transportation to and from that event.

8. That the applicant and respondent shall keep each other informed of their current residential address, mobile and landline numbers, if any, and advise the each other of any change thereto within seven days of such change.

9. That the applicant and respondent are to notify each other as soon as reasonably practicable of:

   9.0.1any accident or emergency involving the children which involves medical treatment or hospitalisation while the children are in their care,

   9.0.2any medical problems or illnesses suffered by the children whilst in their care,

   9.0.3any medication that has been prescribed for the children,

   9.0.4any social, school or religious functions which the children are to attend,

   9.0.5any other matter relevant to the children’s welfare.

1. That both the applicant and the respondent shall permit, not unreasonably prevent or interfere with, and do all things reasonably necessary to facilitate the children making telephone calls to and receiving telephone calls from the applicant whilst in the care of the respondent, and the respondent whilst in the care of the applicant.

2. That the process to be used for resolving disputes about the interpretation, implementation or enforcement of these orders is as follows:

   11.1the applicant and respondent shall do all things necessary to attend counselling or mediation with an organization recognised under the Family Law Act or by the Commonwealth Attorney General; or

   11.2the applicant and respondent shall participate in a family dispute resolution with a person authorised under section 10G of the Family Law Act.

Orders sought by the Independent Children’s Lawyer

1. The Father, Mr Towers, have sole parental responsibility in relation to the education and health issues of the children X born (omitted) 2010 and Y born (omitted) 2012 (‘the Children’).

2. That for all other purposes, the parents Ms Towers and Mr Towers shall have equal shared parental responsibility for the children.

3. That the children live with their mother as follows:

   (a)In week 1: from after school (including day care or pre-school) each alternate Friday or 4:00pm if the Friday is a non-school day, until the commencement of school Monday morning, or 10:00am if a non-school day.

   (b)In week 2: from after school each alternate Monday, or 4:00pm if Monday is a non-school day, until the commencement of school Wednesday morning, or 10:00am if a non-school day.

   (c)From 2015 onwards, for half of the short school holidays between terms 1 and 2, 2 and 3, 3 and 4 by agreement and failing agreement for the first half in years ending with an odd number and the second half for years ending in an even number.

   (d)(i)         During the Christmas holiday break from December 2015 until Y commences school for alternate weeks from the conclusion of the school terms until the commencement of school.

   (ii) After Y commences school for half the Christmas School Holiday period as agreed and failing agreement for the first half in even numbered years and the second half in odd numbered years.

   (e)From 4:00pm on the Saturday evening prior to Mother’s Day until 5:00pm on Mother’s Day if the children are not otherwise living with the mother.

   (f)On Christmas by agreement and failing agreement from midday on Christmas Eve until midday on Christmas Day in even numbered years and from midday Christmas Day until midday Boxing Day in odd numbered years.

   (g)Other times as agreed between the parties in writing.

4. The children shall live with their father at all other times.

5. The children shall spend time with their father on Father’s Day rom 4:00pm on the Saturday evening prior to Father’s Day until 5:00pm on Father’s Day if the children are not otherwise living with the father.

6. (a)     The father shall notify the mother in advance of all medical and health or related appointments for the children, and;

   (b) The father shall authorise any treating health practitioner involved with the children to provide information and reports relating to the treatment of either child to the mother, and;

   (c) The mother is authorised to attend upon any treating health practitioner, and;

7. (a)     The father shall notify the mother in advance regarding any school function involving the children or either of them to which parents are invited to attend or be involved;

   (b) The father shall authorise any school (including day care or pre-school) attended by the children to provide information including reports, parent/teacher interview information, newsletters to the mother, and;

   (c) The mother is authorised to attend upon any school attended by the children.

8. Both parents are at liberty to communicate with the children when they are living with the other parent .

9. Neither parent is to denigrate the other parent or allow a third party to do so in the presence or hearing of the children.

10. The mother take all steps to ensure the children do not refer to her partner as “Daddy”.

11. Both parents shall notify the other as soon as reasonably practicable of any accident or emergency involving the children that requires medical treatment or hospitalisation while the children are in their care.

12. That for the purposes of changeovers not occurring at school, the father shall deliver the children to the mother at a location which is approximately half way between their respective residences and the mother shall return the children to the father at this location.