Tucker and Landis
[2015] FCCA 54
•19 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TUCKER & LANDIS | [2015] FCCA 54 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility agreed – whether appropriate to order equal shared parental responsibility or in circumstances whether equal shared parental responsibility is rebutted – allegations by each party in respect of the other parent’s failure to meet obligations – determination that equal shared parental responsibility was appropriate and should apply – consideration of objects and principles and factors required to be considered in relation to determination of with whom children should live – consideration of relocation and consequences of unilateral actions by mother in respect of the father’s relationship with the children – consideration of family report and of concerns with regard to the long-term effect on the father’s relationship with the children if placed with the mother – consideration of mother’s capacity to foster relationship with the father – balancing significant considerations with regard to geographic consequences of living with one parent or the other – determination that children live with father – determination that if mother were to reside in the same locality then equal time otherwise appropriate. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 60DA, 61B, 61C, 61D, 61DA, 65DAA, 65DAC, 65DAE |
| Lansa & Clovelly [2010] FamCA 80 AIF v AMS (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Heath & Hemming (No 2) [2011] FamCA 749 Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010) Sigley & Evor (2011) 44 Fam LR 439 Marvel & Marvel (2010) 43 Fam LR 348 Mazorski v Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 M & S (2007) FLC 93-313 Godfrey & Sanders [2007] FamCA 102 Champness & Hanson (2009) FLC 93-407 Hepburn v Noble (2010) FLC 93-438 MRR v GR (2010) 240 CLR 461 |
| Applicant: | MR TUCKER |
| Respondent: | MS LANDIS |
| File Number: | BRC 9651 of 2013 |
| Judgment of: | Judge Coker |
| Hearing date: | 25 November 2014 |
| Date of Last Submission: | 25 November 2014 |
| Delivered at: | Townsville |
| Delivered on: | 19 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Middleton |
| Solicitors for the Applicant: | Carroll Fairon Solicitors |
| Solicitors for the Respondent: | In person |
ORDERS
That all previous parenting Orders be discharged
That the Mother and the Father have equal shared parental responsibility for the major long term issues of the children, [X] born [omitted] 2002, [Y] born [omitted] 2004 and [Z] born [omitted] 2009, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding Order 2 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the children whilst they are living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the children whilst they are living with or spending time with him.
IN THE EVENT THAT THE MOTHER DOES NOT RESIDE IN THE ROCKHAMPTON AREA
That the children live with the Father.
That the children spend time with the Mother at all times as may be agreed and, failing agreement as follows:
(a)For the first half of all school holidays in odd numbered years;
(b)For the second half of all school holidays in even numbered years; and.
(c)For up to 10 consecutive nights once per school term in the event that the Mother is in the Rockhampton area, with the Mother to provide the Father with at least 14 days’ notice.
Changeover during the school holiday periods shall occur as follows:
(a)At the commencement of the school holidays, on the first Saturday of the school holidays at 1.00pm until the middle Saturday of the school holidays at 1.00pm; and
(b)From the middle Saturday of the school holidays at 1.00pm until the last Saturday of the school holidays at 1.00pm.
That unless otherwise agreed, all changeovers shall occur at McDonald’s [omitted].
That the children shall communicate with their parents via Skype where possible when facilities enable Skype (otherwise via telephone) on each Tuesday, Thursday and Sunday from 5.00pm – 6.00pm. That the parents with whom the children are living with at the time shall initiate the call.
When the children are communicating with the other parent each parent shall:
(a)Ensure that the children are available to receive the telephone call;
(b)Arrange for the children to telephone the other parent on the following night if, for any unforeseen circumstance, the children miss the telephone call from that parent;
(c)Both parties to ensure that the children have privacy during their communication with the other parent.
That the children are at liberty to call either parent at all reasonable times and the parent whom they are with shall assist the children to make any calls they request.
IN THE EVENT THE MOTHER RESIDES IN THE ROCKHAMPTON AREA
That the children shall live with each parent on a week-about basis with changeover occurring after school Friday.
That for the school holidays during March/April, June/July and September, the week-about arrangement shall continue.
That for the school holidays during December/January, the children shall spend half of the holidays with each parent as follows:
(a)The first half with the Mother and the second half with the Father in even years;
(b)The first half with the Father and the second half with the Mother in odd years;
(c)Changeover shall occur as follows:
(i)For the commencement of the school holidays, on the Friday of the last week of school;
(ii)On 5.00pm Friday which falls in the middle week of the holidays;
(iii)For the conclusion of the school holidays, 5.00pm on Friday immediately prior to the commencement of school.
That those changeovers which do not occur at school shall occur at Rockhampton [omitted].
Each parent shall:
(a)Keep the other parent informed at all times of their residential address, email address, landline and mobile contact telephone numbers and shall advise of any change within forty-eight (48) hours of such change occurring;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the children and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the children; and
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.
That the parents agree to communicate in relation to the children via email in the first instance and text message, if email is unavailable, and that the communication be respectful and relate to the care, welfare and development of the children.
That the parents agree to respond to each other within three hours if the communication is by text message, and within 24 hours if the communication is by email. The parties will make a genuine effort to respond to the specific issues raised to ensure that only one email needs to be sent per specific issue in each week.
The Mother and Father authorise, by this Order, the schools, churches, swimming clubs or any other activity attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children.
That each party be restrained from denigrating the other parent or their partner in the presence of the children or allowing the children to remain in the presence of any other person acting in such a way.
That during the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the children; and
(d)Use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
That the Mother will ensure the children do not have contact with her brother Mr F.
IT IS NOTED that publication of this judgment under the pseudonym Tucker & Landis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT TOWNSVILLE |
BRC 9651 of 2013
| MR TUCKER |
Applicant
And
| MS LANDIS |
Respondent
REASONS FOR JUDGMENT
THE APPLICATIONS
These proceedings were commenced on 7 November 2013 by
Mr Tucker. For convenience, I shall refer to him during these reasons as "the Father". The Respondent to the Application is Ms Landis. Again, for convenience, I shall refer to her as "the Mother".
The Father's Application [omitted] December 2002, [Y] born [omitted] 2004 and [Z] born [omitted] 2009. The orders proposed by the Father were in simple form and could be summarised as follows:
·That the Father have sole parental responsibility for decisions to be made in relation to the long-term care, welfare and development of the children.
·That the children live with the Father.
·That the children spend time with the Mother as ordered by the Court.
·That the orders shall sufficient authority to the children's treating doctors, schools, churches, swimming clubs or any other activity the children become involved in to enable the parents to contact them and be advised of the children's treatment, progress or otherwise.
·That each party advise the other of their address and contact telephone number and shall notify the other as soon as practicable in the event that if any of the children suffering a serious accident or illness whilst in that parent's care.
·That the Mother and the Father be at liberty to attend at school and/or extracurricular activities which would ordinarily attract a parent's participation or attendance.
·That neither party denigrate the other party or their partner in the presence or hearing of the children or allow others to denigrate the other party or their partner in the presence of the children.
·That the Mother be restrained from relocating the children without the Father's written consent.
The Mother filed a Response in relation to that Application on 2 December 2013. The orders sought in the Response were quite comprehensive but, again, could be summarised as follows:
·That the children live with the Mother.
·That the Mother be restrained from relocating the children without the Father's written consent.
·That the Father spend time and communicate with the children at all reasonable times and in particular if not living in Townsville for one half of the gazetted Queensland school holiday periods and on one weekend in each month during the gazetted school term.
·If the Father is living in Townsville, for each alternate weekend from after school Friday until before school Monday, for one half of the Queensland gazetted school terms and for the children's birthdays, parents birthdays, Father's Day and Mother's Day to be spent with each parent as appropriate.
·That the Father have the opportunity to communicate with the children by telephone when they are in the Mother's care on each Sunday and Wednesday between the hours of 6 pm and 7 pm, and that the children be at liberty to call either parent at any time that they might request to do so.
·The changeovers occur if not at the school then at the McDonald's [omitted] Family Restaurant or at some other mutually agreed public location.
·That each party exchange information as to their address and telephone number.
·That the orders operate as authorisations as proposed in the Father's application.
·That each party notify the other of serious injury to the children and that each party be at liberty to attend school activities.
·That neither parent denigrate the other, their partner or other family members in the presence or hearing of the children, and that they ensure that the children are removed from the presence of any other person acting in such a manner.
·That each parent be restrained and an injunction issue restraining them from speaking disrespectfully of the other parent or inquiring as to private matters in relation to the other parent's household to not denigrate the other parent.
·To ensure that the parents communicate between each other in writing and by email, other than in an emergency.
The Father's position in relation to this matter was more comprehensively outlined in the case outline prepared on his behalf by his solicitors. The proposed orders were in these terms:
(1)That all previous orders be discharged.
Equal shared parental responsibility
(2)That the Mother and the Father shall have equal shared parental responsibility for the children, [X] born [in] 2002, [Y] born [in] 2004 and [Z] born [in] 2009 including but not limited to:
(a)The children’s education and extracurricular activities, both current and future;
(b)The children’s religion and cultural upbringing;
(c)The children’s health;
(d)Any changes to the children’s living arrangements that makes it significantly more difficult for the child to spend time with either parent.
(3)That the parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)Each shall inform the other about the decision to be made;
(b)They shall consult each other on terms they agree;
(c)They shall make a genuine effort to come to a joint decision.
(4)That notwithstanding the above:
(a)The Mother shall be responsible for the daily care, welfare and development of the children when they are living with her; and
(b)The Father shall be responsible for the daily care, welfare and development of the children when they are living with her.
Arrangement for the children to live with and spend time with the parents
(5)That the children live with the Father in Rockhampton.
(6)That the children spend time with the Mother at all reasonable times and as may be agreed and, failing agreement, as follows:
(a)For the first half of all school holidays in odd numbered years:
(i)Changeover at the commencement of the visit shall occur on the Saturday immediately following the commencement of the school holidays at 1.00pm; and
(ii)Changeover at the conclusion of the visit shall occur on the middle Saturday of the school holidays at 1.00pm.
(b)For the second half of all school holidays in even years as follows:
(i)Changeover at the commencement of the visit shall occur on the Saturday immediately following the commencement of the school holiday at 1.00pm; and
(ii)Changeover at the conclusion of the visit shall occur on the middle Saturday of the school holidays at 1.00pm.
(c)For up to 10 consecutive nights once per school term in the event that the Mother is in the Rockhampton area, with the Mother to provide the Father with at least 14 days notice.
Changeover
(7)That unless otherwise agreed, all changeovers shall occur at McDonald’s [omitted].
Telephone communication between the children and parents
(8)That the children shall communicate with their parents via Skype where possible when facilities enable Skype (otherwise via telephone) on each Tuesday, Thursday and Sunday from 5.00pm – 6.00pm.
(9)That the parent with whom the children are living with at the time shall initiate the call.
(10)When the children are communicating with the other parent each parent shall:
(a)Ensure that the children are available to receive the telephone call;
(b)Arrange for the children to telephone the other parent on the following night if, for any unforeseen circumstance, the children miss the telephone call from that parent;
(c)Both parties to ensure that the children have privacy during their communication with the other parent.
(11)That the children are at liberty to call either parent at all reasonable times and the parent whom they are with shall assist the children to make any calls they request.
Communication between the parties
(12)That the parents agree to communicate in relation to the children via email in the first instance and text message if email is unavailable.
(13)That the parents agree to respond to each other within three hours if the communication is by text message, and within 24 hours if the communication is by email. The parties will make a genuine effort to respond to the specific issues raised to ensure that only one email needs to be sent per specific issue in each week.
(14)That all communication between the parents shall be respectful and relate to the care, welfare and development of the children.
Authorities and communication of information
(15)That each party shall advise the other of any changes to their address and contact telephone number within 14 days of the change.
(16)That these orders shall be sufficient authority to the children’s treating doctors, schools, churches, swimming class/clubs or any activities the children become involved in to the effect that the Father and the Mother be able to contact same and be advised of the children’s treatment and/or progress and obtain reports, school photographs, newsletters and swimming or other schedules after payment by them of any necessary fees.
(17)That each party shall notify the other as soon as practicable in the event that the children suffer a serious accident or illness whilst in their respective care.
(18)That the Father and the Mother be at liberty to attend any school activities which would ordinarily attract a parent’s participation.
Restraints
(19)That neither party shall denigrate the other, their partner or other family members in the presence or hearing of the children and that parent is responsible to remove the children from the presence of any person who is denigrating the other party, their partner or family members.
(20)That during the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the children; and
(d)Use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
(21)That the Mother will ensure the children do not have contact with her brother Mr F.
In the alternative, in the event that the Mother relocates to Rockhampton
(22)That the children shall live with each parent on a week-about basis with changeover occurring after school Friday.
(23)That for the school holidays during March/April, June/July and September, the week-about arrangement shall continue.
(24)That for the school holidays during December/January, the children shall spend half of the holidays with each parent as follows:
(a)The first half with the Mother and the second half with the Father in even years;
(b)The first half with the Father and the second half with the Mother in odd years;
(c)Changeover shall occur as follows:
(i)For the commencement of the school holidays, on the Friday of the last week of school;
(ii)On 5.00pm Friday which falls in the middle week of the holidays;
(iii)For the conclusion of the school holidays, 5.00pm on Friday immediately prior to the commencement of school.
(25)That those changeovers which do not occur at school shall occur at Rockhampton [omitted].
In particular, it is necessary to note that the Father's position in relation to proposals with regard to parenting had significantly changed. Firstly, he proposed that there should be equal shared parental responsibility rather than sole parental responsibility as originally detailed in the Application filed on 7 November 2013. Further, he proposed that there be in place arrangements for the children to live with him in Rockhampton and to spend time with the Mother at all reasonable times including for one half of all school holiday periods, as well as for 10 consecutive nights per school term in the event that the Mother was in the Rockhampton area, and that she provide the Father with at least 14 days' notice of her intention to be in that locality.
The Father's trial position, appeared to reflect the recommendations of the family reporter insofar as the living arrangements for the children should the Mother be in the Rockhampton area. Whilst not specifically detailed in the material, I certainly gained the impression that, during the hearing, the Father's perspective was to suggest that if the Mother was in Rockhampton then his proposal was not simply that there be time spent to coincide with visits but rather that there be a week about basis, with changeovers occurring on the Friday.
The Father's proposal, however, was not something that was able to be considered by the Mother, her evidence clearly being that she would not relocate to Rockhampton. Her position remained firm in respect of what she proposed with regard to the parenting of the children, including that they live with her and have the opportunity to spend time with the Father.
It does appear, however, that the Mother's position also, at least to some degree, varied to the extent that if the Father were in closer proximity to the Mother's residence in Townsville, then that she also would consider, if not equal time, far more significant and substantial time than would be able to be facilitated as a result of the parties living in two cities, more than 700 kilometres apart from each other.
The difficulties that arise in relation to this matter were summarised to a significant degree in the statement contained within the Family Report prepared by Ms P. I will, of course, address her evidence far more significantly but it is noteworthy that at paragraph 140 under the heading “recommendations” she said:
From the writer's perspective the tyranny of distance has complicated this matter. Unless Mr Tucker and Ms Landis can negotiate that they will reside within reasonably close proximity to the other the writer sees merit in this matter proceeding to trial.
Unfortunately, that was the case and as is clear from that statement and from all of the evidence that fell in relation to the matter, the tyranny of distance as well as at least from the Father's perspective, an inability to live in Townsville because of its close association with the military and his suffering from post-traumatic stress disorder, is such that a distance needs to be maintained which precludes him from living in the Townsville area.
Unfortunately, the Mother's position also is that she does not wish to move from Townsville and whilst there is not, if you like, a psychological impediment in relation to a move, the Mother understandably suggests that it is not possible for her to move because of her associations here including family and friends as well as, of course, study and work opportunities that are available for her.
The issues, then, are with whom these children live, being mindful of the various considerations that must be looked at pursuant to the Family Law Act.
THE EVIDENCE:
I turn, then, to the evidence of the parties and of their various witnesses. The Father called evidence from his partner, Ms F and from his step-Father Mr H. Both Mr H and Ms F were required for cross-examination by the Mother, though her cross-examination was very limited and did little, if anything, to assist her case or to challenge the veracity of the evidence of Ms F and Mr H.
Similarly, her cross-examination of the Father was of the shortest compass, and whilst I suggested that there might be other areas that she wished to inquire into, she raised little in relation to the Father's material though I certainly acknowledge that she responded more comprehensively in her own Affidavit, to the evidence of the Father.
I turn, then, firstly to the evidence of Ms F and Mr H before addressing the evidence of the Mother's witnesses or, of course, of the parties themselves. Ms F’s Affidavit filed 28 October 2014 details the relationship between Ms F and the Father and notes at paragraph 8:
Since starting my relationship with [Mr Tucker] I have spent school holiday with him and the children. They are great kids. They are intelligent but definitely had their own individual personalities. Whilst they all seem generally happy, I've also noted that [Y] and [X] find it hard to relax and drop their guard.
Ms F gave me the impression that she was a person who would be particularly observant of such issues in relation to the children, and I would think that her observations of the children, particularly in their interaction with the Father, would be most astute. The evidence of
Ms F related to her observations of the children with their Father and also, of course, the observations of their behaviours during the time with their Father.
She noted in paragraph 10, that the times that have been made available, she says for her and the Father to spend time with the children, have been restricted and that the Mother had been difficult to deal with, in regard to contact or time spent with the children. That, of course, is a matter that is in dispute in relation to these proceedings and whilst not specifically addressed in cross-examination, the Mother did respond, though rather unhelpfully, in respect of that comment by Ms F where she simply says, "I have not dealt with Ms F about organising holidays or visits."
Unfortunately, of course, it doesn't address the much more significant issue of whether there is that encouragement and fostering of the relationship between the Father and the children.
Ms F indicates that her relationship with the children is, as she puts it "great". At paragraph 19 she says:
[Y] and [Z] in particular spend a lot of time with me when they are in our care. [Z] follows me around like a shadow. She often won't let me leave to go to the bathroom and if I do escape for a second she'll be running around trying to find me. I spend a lot of time with [Z] helping her draw pictures, counting to 10 and even writing her name. She seemed so happy for the one-on-one attention that I love to provide.
Ms F then goes on to describe her observations of [Y] and rather astutely notes that [X] needs to warm to her and that may certainly arise from the fact that she is a little older and perhaps more aligned to her Mother's views or attitudes.
Interestingly, Ms F referred to an instance when the children were with their Father and her and of an exchange of water bombs in play between the children, the Father and Ms F. She notes in paragraph 20:
She came right up to me with a water bomb and threw it as hard as she could at my neck. It actually really hurt. I said to her, "Ow! Man, that really hurt!" Her response was in a whisper, "It's supposed to."
The Mother's response in relation to that is that she had not heard [X] say a nasty word to anyone and could not believe that [X] would say that. More particularly, she suggested that she was concerned that [X] had a bad attitude for three days as this implied to her that:
[X] is unhappy for three whole days while in the care of [Mr Tucker] and Ms F.
She goes on to note then that anyone who knows [X] knows that she does not have an attitude problem, and this just seems unlike [X] and she is concerned that this is occurring.
The fact is, however, that the inference that can be drawn most specifically from what Ms F says was the exchange between she and [X], was that the child was acting upon some form of instruction indicating, "It's supposed to."
I generally was impressed by Ms F. She struck me as a mature woman who had had certain difficulties in her life. She clearly has experienced mental health concerns, depression and the like during her relationship with the Father and explained that her depressive disorder and its consequences for her, arose from difficulties that she experienced when, as an [occupation omitted] in 2009 and 2010, suffered injuries which caused her pain and difficulties in the performance of [omitted] and that this led to depression.
It was troubling that the Mother's only questions to Ms F related not to real issues in respect of interaction with the children or the relationship that Ms F had with the children, but whether, in fact, Ms F suffered from a psychiatric disorder, and she inquired whether she had been discharged from [omitted], where she had previously been employed, because of mental health issues. Tragically and, I think, rather hurtfully, but certainly without consideration as to the need for the question or the effects of the question, the Mother inquired of Ms F whether she was able to have children and Ms F indicated that she was not able to have children.
The inference was that the Father and Ms F were somehow colluding to have children in their family that they would not otherwise be able to have, but the question was, I thought, one that reflected very poorly upon the Mother and her attitude to the important role that Ms F will have in the lives of the children.
Ms F was asked, by the Mother, about issues in relation to her experience with parenting and in particular comments made by Ms F about the children not properly attending to their hygiene, cleaning their teeth and the like. Particularly, with a child as young as [Z], there is a need to remind children of the necessity for such hygiene to be completed and Ms F, I think, rather naively made reference to an expectation that the children would clean their teeth without being reminded and that they had not done so.
As I say, I was generally impressed with Ms F and note that similar observations arose when Ms P, the report writer, met Ms F and spoke with her. Generally, the impressions that were gained from the comments by Ms P were positive in relation to Ms F and that was borne out in the observations that were noted by Ms P particularly involving Ms F and the children. She said at paragraph 120:
The affectionate relationship between [Y], [Z] and Ms F was evident. The children were openly affectionate towards her. Whilst [X]’s relationship with Ms F was not as close, the writer noted both [X] and Ms F were friendly and inclusive of the other. The writer sensed they enjoy each other's company.
The impression I gained was that Ms F specifically understood the distinction between her role as a partner of the Father and perhaps, in time, his wife and the Step-mother of the children and the more important role that the Mother took in relation to the children. Unfortunately, I did not gain an impression that the Mother held a similar recognition and respect for the role that Ms F would have and did already have, in the children's lives.
Also called on behalf of the Father was his Step-father, Mr H. Mr H’s Affidavit filed 3 March 2014 related much more to his observations of the Mother in the past than of any more specific observations at the present time. Mr H was, however, an impressive witness.
He was cross-examined by the Mother about a number of his statements contained within his Affidavit of March of 2014. Those statements related to circumstances and incidents that arose, in fact, during occasions that the parties were still together in 2012 and, whilst challenged in relation to much of them, Mr H remained adamant that his recollections of the state of the house and of the need to completely re-clean the property because of concerns that the Mother had that the children might be removed from her care because of the state of the house when the children had at different times become ill, rang true.
The Mother had, certainly, a different perception in relation to what might or might not have been the case and whilst there may be, to at least some small degree, an element of exaggeration on the part of the witness, I am inclined to the view that the house was not in an appropriate or proper state though the fact must be acknowledged that the Mother was, to a significant degree, the person responsible for the care of three children, that there were health issues and concerns with those children to varying degrees and to different extents during periods that she was solely responsible for the care of the children, and whilst she may not have maintained the home to the level that would be seen as appropriate by Mr H, there would need to be consideration of the competing needs that had to be looked at by the Mother.
There is, certainly, no evidence arising from Mr H in relation to the current capacity of the Mother to provide for and to meet the physical needs of the children and, in that regard, of course, her own witnesses commented favourably upon her housekeeping and her capacity to balance all of the issues that arise, in relation to the children.
Notwithstanding that difference in perception, however, I must say that Mr H impressed me as a generally accurate historian and recaller of circumstances that existed. It may be that there were different perceptions as to the state of cleanliness or untidiness of the home but it was very evident that Mr H recalled exactly the circumstances of his travel, who was present and what assistance he provided to the Mother at times when she called upon him to provide such assistance, for example, when [Y] was diagnosed as a diabetic or, on occasions, when one or other of the girls had been ill.
Mr H impressed me, generally, as a grandparent who would have had and would in the future have a significant beneficial interaction and relationship with the children and appeared genuinely concerned for the needs of the children and more particularly, concerned as to the Mother's capacity to provide for them and to meet those needs.
Insofar as the Mother's witnesses were concerned, she called evidence from her sister Ms L, a close and long-term friend, Ms C and also there was evidence from a friend, Ms T, as well as another friend Ms J who is a school teacher by occupation.
Ms J was not required for cross-examination and Ms T was not available though her evidence was allowed in. Insofar as the evidence of Ms J is concerned, I acknowledge that she is a teacher by occupation being employed [omitted].
She indicates that she has known the Mother for a little under a year and that friendship has developed as a result of [Y]'s relationship with her son [name omitted]. She also notes that she and her family have shared camping trip holidays with the Mother and that they therefore had the opportunity to live in close proximity to each other and therefore to view each other's lifestyles.
Ms J speaks highly of the Mother. She notes that the Mother ensures that the children's emotional and physical needs are met and that they are clean and well-dressed and that the home is well maintained. She also notes the Mother's ability to provide for and to meet the needs associated with [Y]'s diabetes and that she maintains that health requirement quite appropriately. I accept the evidence of Ms J in relation to this matter though, of course, if you like as the reverse of the evidence of Mr H, it relates only to more recent observations and not in any respect to the longer term observations that might be available.
Insofar as the evidence of Ms T is concerned she, in fact, speaks only of a period of about nine or 10 days in the children's life between 27 December 2013 and the 5 January 2014. The evidence relates to specific observations by her which, with respect, do little to assist me in relation to the long-term determination in respect of this matter.
Her comments with regard to observations on 5 January 2014 with regard to what she thought were different behaviours on the part of the children in the Father's household are not of great consequence and certainly do not assist me in relation to the determination of the matter though I have no doubt as to the genuineness of the intent upon the part of Ms T.
Insofar as the evidence of Ms L is concerned, I was troubled by a number of matters that arose in relation to that evidence. Firstly, I gained the distinct impression that Ms L had taken a far more significant role in relation to this matter and was a strong advocate for the Mother. For example, she noted in paragraph 8 of her Affidavit the following:
As you are aware [Y] is a diabetic. Ms Landis handles his levels amazingly and is very confident in teaching myself, [Mr Tucker], family, school, everyone in his life how to treat his hypo and hyper and his daily maintenance.
I accept that the Mother is competent in that way but am a little troubled at the suggestion that the Mother teaches everyone in relation to the matter. Additionally, the role of advocate seems even more strongly indicated in paragraph 9 where reference is made to the Father's wishes in relation to this matter in that Ms L says:
I'm aware that [Mr Tucker] wants the kids to relocate but I advise against this. The children are loving the lifestyle up here and all want to stay. Trust me, they love both their parents but want to be able to live with their mum. They have voiced their feelings to me.
The impression I get is that Ms L is a forceful personality and it would be clear that the children would be expressing to her wishes that they would think reflect the expectations of Ms L, rather than perhaps a more accurate assessment of what they might want. Be that as it may, I certainly accept, however, that the children indicated their close attachments to their Mother and their desire to, if not have their parents living together or sharing their care, then first and foremost to spend the primary, or the majority of this time with their Mother.
Ms L was a forceful witness though unfortunately, as I say, not necessarily a helpful or impressive witness. She was reluctant, perhaps understandably, to speak about her brother Mr F and threats made by him to her, to the Mother and possibly to the children and seemed reluctant to even acknowledge that there were concerns genuinely held by the Father in relation to the children.
Ms L also advocated, as I indicated, strongly a position in relation to the Mother, repeating almost verbatim statements with regard to the Father being away on tour or otherwise absent because of military commitments but when pressed was adamant that these indications had not been given to her by the Mother but had been given to her by the Father. I do not necessarily accept that was the case and certainly would be inclined to think that there was little interaction between Ms L and the Father and certainly not the exchanges that she sought to rely upon, as indicating his absences from the family home.
Similarly, Ms L was quick to advocate that the children's views or statements should be relied upon more than anything suggested by the Father unless it was, as Ms L saw it, critical of the Father. For example, when challenged as to whether she actually knew how much time the Father was away during the relationship or subsequent to separation, what contact he made with the children, she immediately indicated that she did know, at least in a roundabout way what the situation was and the limitations in the contact made by the Father, because [X] had indicated to her that the Father did not talk and that, as she put it, "He never bothered to ring us."
Ms L had little positive to say in relation to the Father and even when given the opportunity, in respect of the Father's inclusion of [C] in the time spent with the children at the school holiday period recently past, would not consider that the Father had acted appropriately but rather when asked whether the Father was inclusive of family, her response was, "It depends on how you look at it". When specifically referred to the fact that [C] had spent time on the holiday and that it apparently had gone well and that there had been positive times for the children and the Father as well as [C], Ms L seemed reluctant to acknowledge that that might have been a positive or a good thing and, in fact, indicated that when the suggestion was made that [C] might spend some time with the Father and the children, the best she could say was that, "I was a bit reluctant."
Ms L was adamant that she was, as she put it, "Here for the kids” and whilst I accept that that was a motivation for her, I would also unfortunately be of a view that there was also a determination to paint the Mother in the most positive light and the Father in certainly a less positive assessment of what might be able to be provided. Ms Landis is no doubt a strong supporter of the Mother and an aunt and a sister who is available to provide assistance and support, but I'm not necessarily of the view that her evidence was of significant assistance to the Mother's case, in respect of this matter.
Insofar as the evidence of Ms C is concerned, I was impressed by
Ms C. She is obviously a friend who stepped up at the time of the tragic death of the Mother's Mother, the maternal Grandmother, and took on a role which provided support and nurture for the Mother when as a young teenager she desperately needed it. She indicated, however, that from a period about three years after she started caring for the Mother at about the age of 14 that being, from 17 years of age, for perhaps seven or eight years, there was little contact between the Mother and her.
When asked why they hadn't kept in touch, Ms C indicated that there had been a, "misunderstanding" between she and the Mother rather than a falling out and that, despite attempts by Ms C to communicate with her, the Mother had ignored her. Notwithstanding that, Ms C, I think very generously welcomed the Mother and, of course, the children back into her life when in January of 2014 Ms C's daughter [name omitted] took her to the Strand and they met the Mother.
Thereafter, Ms C has had significant involvement in the life of the Mother and, of course, in the life of the children and has provided support both emotional and, on occasions I would expect, physical with regard to the care and supervision of the children. Ms C noted that the Mother's house is clean, her fridge is well stocked with ample amounts of fruit and vegetables and there is meat in the freezer and cupboards full of food.
Additionally, she noted the love between the Mother and the children and when caring for the children and their Mother returns to collect them after work or study, that the children run to her for hugs and that the Mother shows them a lot of affection. I accept that this is an accurate reflection of the observations that have been made by Ms C, particularly when, in my assessment, she sought to be absolutely fair and balanced in her evidence noting that the children love their dad and loved to see him but want to go home to their Mother at the end of the day.
Ms C noted in her Affidavit that she would not lie to help either [Mr Tucker] or [Ms Landis] in this case and I accept that that is true. I would also note, however, that her motivation seems to be premised on the assumption that the children want to live with their Mother and I, with respect, am not as certain as is Ms C, of the weight or sincerity of statements by the children in relation to wanting to live with their Mother.
As is almost invariably the case, the evidence of the parties themselves and, of course, where relevant, the evidence of experts such as family reporters or psychologists and psychiatrists, does take some significance in relation to the proceedings. Here, the evidence of the Mother and the Father was of considerable importance, in relation to the determination of the proceedings.
Unfortunately, the Mother did not cross-examine the Father to any great extent. The Father, however, had filed a lengthy affidavit in relation to the final hearing and detailed a number of matters that he says were of particular significance. He outlined, in particular, issues with regard to the most recent holiday period, the end of term 3 school holidays in 2014 and noted, as he put it in his material, that they were most rewarding for both the children and for him. He went on to suggest that the difficulties and there have been difficulties particularly between he and the oldest child, [X], with regard to behavioural issues, had been to a significant degree resolved and he noted in his Affidavit:
We have established rules and boundaries in this household that the children clearly understand. The children know that when they stay with us the same fair rules will apply every time.
He then goes on to note that these occasions have become, as he put it:
…easier and easier and there was less time necessary to deal with problems in relation to the children’s attitude and behaviours.
The Father went on at length to describe the circumstances surrounding Ms L’s son, [C], accompanying the children on the last occasion that they were with him and he noted as he assessed that [C] had had a great time and as he put it, it was:
…so nice seeing all the children playing together.
It was clear that the Father expressed real delight in his relationship with the children improving and there being greater opportunities for him to enjoy time with the children. He went on in his material to detail issues with regard to what he said were concerns in respect of his dealings with the Mother, specifically with regard to his communications with the children and the difficulties that he experienced in that regard, as well as the difficulties that he says were continuing with regard to joint decision-making, notwithstanding the orders in that regard.
The Father particularly outlined concerns with regard to educational decisions and noted that [Z] had been attending the [omitted] kindergarten, had been told that the child would be attending there on certain days but then when inquiries were made by the Father about the child’s attendance that had changed. And when inquiries were made only eventually was he advised that the child was now attending at another place.
The Mother and the Father were not able to agree on much of what was to be decided. The Mother, I thought, attempted to paint a somewhat rosy picture of the circumstances that existed and suggested that whilst there might have been some difficulties in relation to their exchanges with each other it was, if anything, the Father’s fault and certainly was not as difficult a situation as the Father suggested.
The Mother in her Response to a number of the matters that were detailed by the Father noted that the complaints by the Father were not as significant as was suggested by the Father. In particular, she noted in her Affidavit that whilst there may have been some unpleasant exchanges they were, she suggested, as a result of harassing or unnecessary inquiries made by the Father. When taken to her own evidence in relation to the matter, however, there was little that could be directly pointed to as in any way being disparaging, abusive or unnecessary inquiries made by the Father in relation to the children.
In his Affidavit, the Father addressed a number of concerns that he had with regard to the Mother’s interaction with the children and the effects of that interaction upon his relationship with the children. Under the heading, ‘[Ms Landis’] Attitude Towards Me as the Father’, he expressed concerns that the Mother:
…openly shares her opinions about him in front of the kids and the children have told him on occasion that the Mother says inappropriate things about him.
The statements that were made by the Father in that regard and comments that he related in respect of many of those statements rang true. There was a general impression that I gained in relation to this matter that whilst the Mother was more than willing, as it would appear suggested, to talk the talk she was far less inclined to walk the walk and to take the appropriate steps with regard to ensuring that the children were protected from the circumstances of the breakdown of the relationship, that they were not told of unpleasantness between the Mother and the Father, and that it was not suggested to the children that the Father had acted in some way inappropriately.
The impression I gained, was that the Mother was on her best behaviour in court and yet, she did not display the restraint that would have been expected. The impression that I gained repeatedly, was that there was an air of cockiness about her in answers that she gave and in her approach in relation to these proceedings. In particular, even though I had specifically advised her of the need to compose her thoughts in relation to the evidence to be given in relation to the matter and, in particular, to consider what issues she wished to address with the Father, her cross-examination of him was virtually non-existent.
There were only four or five questions asked. They related to whether the Father knew that the Mother intended to move to Hervey Bay and the Father’s answers were, I thought, appropriate. He indicated that he wasn’t sure whether he was told that the move was being made but what was certain is that he had previously indicated that he did not consent to a move being made. The Mother seemed to fail to appreciate the distinction between the two or simply was uninterested in the distinction between the two because she continued to emphasise that she had told the Father she was moving and it appears from her attitude in relation to these proceedings and to the Father particularly, that his wishes and wants in relation to the children were secondary to what she considered she might want.
The Mother asked the Father whether he considered that the children were happy and healthy and were well cared for. He responded that they were healthy and happy children and he indicated that his belief was that with him they were well cared for. When asked whether the Father believed that the Mother cared well for the children, he indicated that he had some concerns for her environment and went on to indicate that there were generally concerns he held with regard particularly to the Mother’s emotional state and of her influence upon the children. There were also concerns expressed by the Father about the various moves by the Mother and the effect upon the children both educationally and socially, as a result of those moves.
Although the Father was not in the witness box for very long I must say that I gained the distinct impression that his concerns in relation to the Mother and most particularly his concerns with regard to the fostering of the relationship by the Mother between he and the children were genuine and real concerns, arising from circumstances that had occurred over the preceding years. The impression that I gained of the Father was that he was genuinely wishing greater involvement in the children’s lives and, in fact, was very genuine in his desire to have the children live with him and if possible to have a shared care arrangement, but if not possible, then that it was most appropriate that the children live with him.
Insofar as the Mother, I did have a number of concerns with regard to her. My overriding impression was that the Mother had an attitude which could perhaps be most easily summarised as, “I am the Mother and I am entitled to have the children in my care”. I gained this impression through her material but more particularly through the answers that she gave and most specifically her body language, in relation to the proceedings. She seemed almost cocky in many respects in relation to what was being asked of her in relation to the proceedings and failed, I thought, to appreciate the importance of the issues before the court.
The Mother was challenged about her behaviours, particularly with regard to movements contrary to the wishes of the Father and the actions that she took with regard to changes of accommodation, changes of town, changes of school and the like. Interestingly, the Mother did not seem to think that there were any real difficulties for the children in that respect. She emphasised, for example, that the children had adjusted well to changes and that being the children of a defence force member, there had been a number of moves and that the children dealt with those and adapted well.
Such an answer was interesting because, of course, one of the Mother’s prime arguments in relation to there being no change to arrangements with regard to the parenting of the children, particularly if they were to move to Rockhampton to live with the Father, was that there would be upheaval for them, that there would be change in school, that there would be change in accommodation and, of course, significantly, a change in the primary responsibility held with regard to the care of the children.
Notwithstanding that contradiction, however, there were numerous exchanges between counsel for the Father and the Mother, particularly relating to text and email exchanges between the Mother and the Father, which I thought showed the Mother’s real attitude, in relation to the Father’s involvement in the children’s lives.
For example, the Mother acknowledged that she had suggested to the Father that if he challenged her with regard to her having the children in her care, he would be in for the battle of his life and that he would never see the children again. She acknowledged that she removed money from a joint account and that the entry on the joint account in reference to the withdrawal was, “fuck you”.
The Mother’s response to the concern then expressed by the Father and the fact that he changed the bank account details, particularly with regard to moneys being paid into the account, was that the Father had acted immorally. The Mother’s hypocrisy in failing to realise her actions had been what directly led to the actions of the Father was troubling. The Mother seemed to think that she had complete control, in relation to this matter.
When she left for Perth, she left, she said, for moral support. She had gone, however, to see a friend and not to seek assistance from family, but more particularly, when the Father was able to locate her and made calls, he was generally refused the opportunity to speak with her. On [date omitted], three days before the child [Z]’s birthday, the Father was able to speak with the children and requested the opportunity to speak again. The Mother saw no difficulties in saying that he would not be able to speak with the children again until [Z]’s birthday three days later. The Mother’s attitude was that two calls a week were appropriate and that nothing else needed to be considered. She was disparaging of the Father.
She was particularly disparaging of the issues with regard to his mental health, referring to him not being in a psychiatric ward and receiving care, but being in a mental hospital. It was clear that the Mother had little appreciation of the hurt she caused to the Father. She acknowledged that she may have said words to the effect that she didn’t give a, “shit about what he wanted” and acknowledged specifically that she had told the Father that she was going to be the biggest “fucking bitch in your life.” Quite simply, the Mother was, unfortunately, true to her word.
There appears to be little appreciation by her, of the needs and rights of the children to a relationship with the Father, other than on the basis of what the Mother says that she would be agreeable to facilitate. The fact is that the Mother has little appreciation of the importance of the Father in the children’s lives and there is a real concern identified not only by the Father, but also by the independent report writer, Ms P, about her willingness to facilitate a proper relationship with the Father or to even appreciate the importance of that proper relationship with the Father. The Mother was determined to get her own way in relation to these proceedings.
The Mother relies heavily upon the support of others, and as I indicated, in particular the support of her sister Ms L and her former carer, Ms C, who provided evidence in relation to this matter. They are no doubt ready and able to assist, but they provide that assistance within an atmosphere of confrontation with the Father. I get the distinct impression that the Mother is confrontational in many respects, and that was obviously identified by Ms C, such that if the Mother makes disparaging comments about the Father or about the children’s relationship with the Father, to maintain interaction with the children, Ms C or, I expect, others must accede to her views and support her views.
An overarching impression in relation to this matter was that the Mother would broach no contest in what she considered appropriate, but unfortunately what she sought in relation to the children was designed and arose far more from what she wanted for herself, than what might be wanted for the children.
It was significant, that counsel for the Father noted that the Mother suggested that anyone challenging her views was lying. The Father was a liar. It was clear that others who had made suggestions contrary to what she suggested, for example, the Father’s step-father, Mr H was lying when he referred to the state of her home. Most troubling however was reference contained with the family report to the children talking about the difficulties at handover, and mum crying and being upset.
The Mother denied that that was the case. When asked whether the children were lying in the report, the Mother thought that it was perfectly appropriate to consider that the children were lying. She failed to take into consideration that her demeanour may have changed, and whilst she did not necessarily consider that there was a tear on her cheek, or a stammer in her voice, the children could pick up a change and saw her as upset. The Mother was confrontational therefore, even in relation to statements being made by the children.
The Mother was a difficult person to assess. The impression that I gained in relation to this matter, was that she loved these children, that she had provided as best she could for these children, and that she would continue to do so. However, it was also unfortunately clear, that the Mother had a very unilateral view of what was appropriate with regard to the children, and that the Mother’s only concerns were her relationship and her family’s relationship with the children, and there was little real appreciation at all of the importance of fostering a relationship with the children and the Father. She certainly did not appreciate that there was more involved than sending the children off to their Father and collecting them at the conclusion of time spent with the Father.
Again, the distinct impression was that there would be little, if any, encouragement of the relationship with the Father, and certainly no fostering or developing of the relationship when the children were in the Mother’s care, or as I’ve noted earlier in these reasons, through the support of the Mother’s sister Ms L. The Mother troubled me in her evidence in relation to these proceedings.
THE FAMILY REPORT:
I turn now to the evidence of the Report Writer Ms P. Ms P’s report, dated 3 March 2014, and released on 5 March 2014, concluded with the recommendation to which I have already made reference, which was to the effect, as I noted, that the writer saw merit in the matter proceeding to trial. But Ms P did go on to recommend that there be a continuation of the operation of orders, certainly until trial, that had been made in November of 2013.
Those orders included provision for the children to live with the Mother, for the Mother to not relocate the children from Townsville without the Father’s consent or an order of the court, and that the Father spend time and communicate with the children. The orders then went on at some length to detail arrangements with regard to communication, and arrangements with regard to ensuring that there was a positive relationship between the children and the Father.
Ms P recommended the children spend holiday time with the Father, and that the parents share the costs of travel, and arrangements of that nature, between them, on an equal basis. It’s noteworthy that those recommendations were made, because of course, as time has progressed, the matter has been prepared for trial, and the lengthy trial Affidavits of both parties has been made available to Ms P.
I specifically asked Ms P at the conclusion of her evidence, especially so that the Mother was clear, what her recommendations might now be. I had certainly gained the impression from her cross-examination that her views had hardened, at least insofar as the Mother’s inability to foster a relationship with the Father was concerned, and that therefore she was much more in favour of an order which would allow the children to live primarily with the Father, if not able to live equal time with each of the parents.
In particular, I asked her current recommendations, and she noted that in her opinion shared care of the children would be best. But if not able to be arranged, then it was the Father who gave the children the better, “long-term outcomes for the children”. She went on to note that the Father and Ms F were the best prospect for the future encouragement and fostering of a relationship with the Mother and the Father. As she noted, there were little things that the Mother still did to undermine the Father’s relationship and interaction with the children.
In that regard, she made reference specifically to the Father’s suggestion of a Castle Hill walk with the children, and of the fact that the Mother a few days prior, took the children on the same walk. Not for any other reason, it would appear, than to remove the novelty, or the one-offness, of such an occasion being facilitated with the Father.
Ms P in her Report emphasised a number of matters in these proceedings. She noted particularly the issues that needed to be dealt with, and in particular with regard to shared parental responsibility, noted that the Mother had acknowledged that since separation she had unilaterally exercised parental decision making regarding where the children physically resided and the choice of school.
Ms P noted the Mother’s unwillingness to express an opinion in relation to the Father’s health, though it appeared clear that she had very firm views as to the Father’s mental health, and the effects of that upon the capacity of the Father to care for the children. Interestingly at paragraph 46 of her Report, she noted as follows:
When the writer mentioned VVCS counselling that may assist her to understand the effects of PTSD, Ms Landis indicated she was not interested in counselling for herself. She did say if the children require counselling she would facilitate their attendance.
Quite simply, the Mother was not willing to go, it would seem, the extra yards in relation to this matter. Ms P spoke favourably about the Father and Ms F. She noted, in discussions with the children, the children’s wishes which obviously were relevant in relation to these proceedings. [X] is reported at paragraph 122 of the report to have spoken of three wishes, the first of which related to living in a mansion that was equally divided in two so that the Mother and the Father could have one side each and, rather interestingly, noted that when Ms P suggested that the parents live side by side in a duplex or, in other words, a smaller residence than a mansion, [X] was adamant that, “each parent needed space from the other”.
The fact is that this child was already astute enough to know that the parents were not able to work together and to live or work in close proximity. [X]’s second preference, if it was able to be facilitated, was to live with each parent on an equal care basis but noted, as was emphasised by the Mother, that [X]’s third preference was to live with the Mother and spend time with the Father.
[Y]’s preferences were similar. He wished, in the first instance, for there to be equal shared care rotating on a fortnightly basis, but if they were not living in the same area then [Y] also preferred the option of living with his Mother and spending, he said, an equal amount of time with his Father. Ms P noted, however, that [Y] was unable to actually clarify what this might have meant or how it might have been able to be effected.
Under the heading “Evaluation”, Ms P noted, at paragraph 132, the following:
During this assessment, the writer gained the impression
Mr Tucker is keen to resume an active role in the children’s life. From his perspective, an equal shared care arrangement would be optimal for [X], [Y] and [Z]. Assessment data indicates prior to Ms Landis’ abrupt department from Hervey Bay, Mr Tucker informed her of his intention to live in the area. Presently, Mr Tucker resides in Rockhampton whereas Ms Landis resides in Townsville. Both parents have family support in the area they now reside. At the time of assessment, both parents were leasing accommodation. Neither Mr Tucker, Ms F nor Ms Landis are employed. During this assessment, Mr Tucker expressed strong reluctance to relocate to Townsville. He advocated cues such as defence force personnel, equipment and the bases would remind him of the trauma he has experienced. Reasoning she had constantly relocated during the relationship, Ms Landis expressed a reluctance to move away from her family support.
It was also noteworthy that Ms P spoke warmly of the relationship between Ms F and the children. It was important that that be considered, because the Mother seemed somewhat disparaging of the importance of that relationship and, in fact, suggested at one stage that she had helped in the relationship between Ms F and [X] by pointing out some faults in Ms F’s interaction with the child. I say that because, particularly at paragraph 120, Ms P noted that both parents were openly demonstrative towards the children and the children were spontaneous in their displays of affection.
She noted that the parents reciprocated that and went on to note particularly, that [Y] and [Z] displayed an affectionate relationship with Ms F and were openly affectionate towards her. She noted that [X]’s relationship with Ms F was not as close, but the writer went on specifically to note:
Both [X] and Ms F were friendly and inclusive of the other. The writer sensed they enjoyed each other’s company.
Ms P’s report in relation to this matter was of assistance, but I must say that I was also assisted by her evidence before the court. In cross-examination, she reinforced her assessment of there being a strong relationship by the children with each of their parents and that they felt loved and nurtured by both. She also noted specifically that Ms F was a positive influence on the Father and on the children, and that this was positive in their relationship.
She went on to specifically acknowledge that the Mother had failed at the time of report writing but it would seem still, to grasp the critical importance of fostering a relationship with the Father and of the need for her to be positive in that regard, and noted that this impaired her ability to foster a relationship with the children and the Father and that that was, of course, a concern.
Ms P acknowledged that there were cogent reasons for the Father not wishing to live in Townsville, particularly in light of his PTSD and the cues that arose from living in a military city, such as Townsville. Significantly, Ms P was asked about the effects upon the children if there were to be a change in residence, either on the basis of the Mother moving to Rockhampton to be in the same locality as the Father and there being shared care or, alternatively, a more significant change being effected, where the children would live primarily with the Father and spend time with the Mother.
Ms P noted that both of the parents acknowledged that the children had changed schools and that it was the Mother who had emphasised that there was no problem in the changes, particularly noting that there was no problem with the change to Townsville. Ms P went on specifically to note that the Father had given her the impression that whilst there had been changes and moves during the relationship and his employment with the defence force, there had not been as many changes as the Mother had suggested and certainly it was his impression that the children had coped well.
Ms P also, I think rather significantly, recognised the close relationship that the children had with [C], their cousin, and their aunt, Ms L, and noted that that relationship would have to be maintained. But she went on specifically to say:
The relationship with the Father is far more important.
Ms P was positive about the Father and his ability to foster a relationship with the Mother, as well as, of course, to maintain the relationship with [C], Aunt [Ms L] and others significant in the children’s lives, and was most impressed with the steps taken by the Father to encourage and include [C] in a holiday occasion spent recently with the Father. Ms P indicated that she had no concerns with the children’s ability to cope with the move into the Father’s primary care in Rockhampton if that were to be ordered, provided that there were arrangements for regular contact, both physical and by telephone or other electronic means, between the children and the Mother.
Ms P indicated that she was confident that the Father and Ms F would foster the relationship with the Mother and certainly seemed to emphasise the fact that she was far more confident that they would take those steps, than would be the case if the children lived primarily with the Mother.
In cross-examination by the Mother, Ms P acknowledged that the two older children, [X] and [Y], had expressed as a preference equal time and, if not able to be facilitated, then to live primarily with the Mother, but seemed to suggest that the maturity involved in such decisions being made was not as high as would have been hoped and certainly, therefore, should not have been a determining factor in the proceedings.
The Mother, I think, was a little surprised at an answer given by Ms P when she asked whether there would be a negative impact upon the children if they were separated from her as the primary carer. Ms P did not suggest there would be a negative impact, though I certainly would not consider that there would not be some upheaval and difficulty for the children, but in fact noted specifically that the children’s real concern would be to wonder what would hold the Mother in Townville when they were, in fact, now in Rockhampton with their Father.
I thought that a significant point because it reflected much more upon the Mother than it did upon the children. The children would cope and the children would deal with whatever was the final determination in relation to the proceedings, but the real issue here was the Mother’s determination not to attempt to facilitate an arrangement which might provide for the best interests of the children. It reflected poorly upon the Mother, particularly when she did acknowledge that the Father had his own difficulties as a result of his PTSD and would not be able to live in Townsville, whilst there were not the same constraints or difficulties upon her in making a move, particularly, as Ms P noted, in circumstances where it would be appropriate at the time that she finished her studies to make such a move.
I was assisted by the evidence of Ms P in relation to this matter.
THE LAW:
I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, relating to the welfare of children. I am also mindful of one of the central issues in relation to this matter, initially being the determination of parental responsibility and time to be spent with the children. There does however appear now to be agreement with regard to equal shared parental responsibility, though it is necessary for the court also to be satisfied that it is appropriate and in the best interests of the children.
In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA 80, a decision handed down on 11 February 2010, his Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136] The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137] Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138] But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139] The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140] No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141] The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142] Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143] “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144] Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145] Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146] Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147] A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148] The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149] If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150] The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151] An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152] Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
DISCUSSION:
As is evident from the comments made in relation to this matter, there is much in contest with respect to with whom the children should live and where they should live. Parental responsibility was in contest but, to a significant degree now, has been resolved, the mother apparently not seeking any divergence from the normal presumption, and the father, perhaps in light of the family report recommendations, adopting equal shared parental responsibility as an appropriate arrangement with regard to the children.
Section 61DA acknowledges the presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility but recognises that there may be circumstances that give rise to a rebuttal of the presumption. Even if the parties are agreed, the Court must also be satisfied that such an arrangement would be appropriate, and to determine whether the children’s best interests are met by making orders for equal shared parental responsibility.
Initially, the parties struggled with the decision-making process, and the need to consult with each other and to jointly reach agreement as to the arrangements to be put in place. The most obvious example of that is the mother’s move from Hervey Bay to Townsville, when the father had taken steps to locate her and the children and specifically indicated an objection to any further move. The mother simply moved without consideration of the effects upon the children, and specifically the wishes of the father. If such a position continued to exist, it would be hard to imagine that there would be a basis upon which equal shared parental responsibility could be ordered.
Fortunately, circumstances have moved on. The mother was more amenable to more significant periods of time being made available to the father, should he be in closer proximity to Townsville, if the children were living with her, and the father has varied his position from the original application such that it appears that he now proposes equal time with each parent, if the mother were to be residing in Rockhampton or environs. Additionally, the distinct impression was that the parties now recognised that the children deserved both parents involvement in all aspects of their lives, and in particular in the decision-making process relating to the long-term care, welfare and development of the children.
I am satisfied that these parents can work together and that it is appropriate, as they seek, for orders to be made for them to have equal shared parental responsibility in relation to decisions to be made with regard to the children.
The issue then for determination is with whom the children should live, it being clear that neither parent is willing or able, at least at this time, to reside in the same locality as the other parent. Accordingly, consideration must be given to those matters which must be looked at pursuant to the statutory imperatives, and to follow, at least generally, the steps identified by Kent J in Heath & Hemming (No 2).
The proposals of each of the parties are clear. They are identified at the commencement of these reasons and the clear distinction relates to living primarily with the father in Rockhampton, if the mother is not in the same locality, or with the mother in Townsville, and there being opportunities for time to be spent with the father. The parties’ positions, geographically, are diametrically opposed, and as noted Ms P identified the tyranny of distance as having complicated this matter.
The next step then is to consider the objections and principles set out in section 60B(1) and (2), and the considerations set out in section 60CC, particularly arising from subsections (2), (2A) and (3). Section 60B(1) and (2) are in these terms:
60B(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.
60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC, headed “How a Court determines what is in a child’s best interests” details matters that the Court must consider, though of course it is not exhaustive, each case turning on its own particular facts. Section 60CC(2), (2A) and (3) are in these terms:
60CC(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.
60CC(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
60CC(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.
Subsections (2) and (3) of section 60CC delineate Primary and Additional Considerations. There is no suggestion however that the Primary Considerations “trump” the Additional Considerations but rather simply direct the Court, and of course, parties to the need to be mindful specifically of issues with regard to children’s relationship with both parents and the need to protect children from situations of abuse, neglect or family violence. Simply for convenience, I will deal with those matters arising pursuant to the Primary Considerations before turning to consideration of relevant matters arising pursuant to the Additional Considerations.
These children have a meaningful relationship with both of their parents. It is acknowledged by both parents that there is a need to foster and further develop the relationship with the other parent, and I accept that the children would benefit from that meaningful relationship. Normally, section 60CC(2)(b) is seen as a counter-balance to the importance and significance of a meaningful relationship with the parents being fostered. It is necessary in some instances to put the issue of protection of a child’s emotional or physical wellbeing ahead of the benefits of a meaningful relationship. Subsection (2A) specifically directs a Court to do so.
In this matter, however, there is little that would give rise to concern with regard to the physical wellbeing of the children. Both parents clearly acknowledge by their proposals for at least significant and substantial time to be spent with the other parent, that there is a capacity in that other parent to meet the physical needs of the children. Each parent, however, does raise some concerns with regard to the emotional or psychological welfare of the children, and if you like, the risk that arises with the other parent in that regard.
Whilst not in my assessment of such significance as to weigh against a meaningful relationship being fostered by substantial time with each parent, it is important to recognise that there are concerns that need to be addressed. Insofar as the father is concerned, there have been mental health issues, and the effects of post-traumatic stress disorder are such that he is unable to reside in close proximity to Defence Force facilities, and that of course excludes Townsville as a place at which the father could reside. However, there is nothing in the evidence that would suggest that the father’s or Ms F’s mental health would have any adverse consequences for the children, or place them at risk.
With respect to the mother, however, there are some concerns, not so much relating to the children’s physical wellbeing, but more with regard to emotional and intellectual development. The mother has willingly disrupted the children’s schooling on regular occasions, and as noted earlier in these reasons, was somewhat hypocritical in then suggesting that a move to the father might be disruptive to the children’s education. More significant however, has been her attitude to the children’s relationship with the father, and the importance of fostering and encouraging that relationship.
Whilst there may have been some improvements, as evidenced for example in suggesting that more substantial time could be available to the father if he were to reside in closer proximity to Townsville, ie in Ingham or Ayr, she also showed little appreciation of the importance of the father in the children’s lives, as indicated by her texts and emails, such as not giving a “shit about what he wanted” or being the biggest “fucking bitch in your life”.
Such attitudes do not auger well for an abiding and long-term change in perspective, and that is of significance when considering most significantly the arrangements with regard to the parenting of these children. It does not weigh against the importance of a meaningful relationship with the mother being supported, but does obviously raise a concern with respect to the mother’s capacity to foster that relationship with the father, should the children live primarily with her.
Insofar as the additional considerations are concerned, a number of matters do arise. They include those considerations set out in section 60CC(3)(a),(b), (c), (d), (e), (f), (i) and (l). I have already commented at some length upon issues with regard to the nature of the relationship that the children have with their father and I would note also with Ms F, and the fact that the younger children, [Y] and [Z], were demonstrative of those attachments and of the wish to have greater opportunities for time with the father. As noted by Ms P, [X] was less effusive in that display of affection but she noted that they “enjoyed each other’s company” when speaking of Ms F and [X].
I am satisfied that whilst a view was expressed by the children to have equal time and if not able to be facilitated, then to live primarily with the mother, that as Ms P suggested, it was a less than maturely formed view, and certainly was not a factor which would be determinative of the proceedings. Quite simply, the children’s relationship with each parent and others significant in their lives, should be fostered to the greatest extent possible in light of the circumstances that exist.
Section 60CC(3)(c) requires consideration of the extent to which each of the child’s parents has taken or failed to take the opportunity to involve themselves in the children’s lives. By extension however, it requires consideration of the actions of either parent insofar as possibly thwarting the involvement of the other parent in the children’s lives. To that extent there is a real distinction to be drawn between the father’s attempts to involve himself in the children’s lives, and the mother’s behaviours in precluding telephone communication and time with the children, even to the extent of relocating the children contrary to expressed wishes of the father.
I am satisfied that there is a more complete appreciation now of the inappropriateness of such actions by the mother, but as indicated in these reasons, I am still not satisfied that the mother will, for example, be able to desist from such behaviours, particularly if she felt pushed by the father, or more especially, if pressured by members of her family to exert her “rights”.
Whilst there would, no doubt, be an effect upon the children of any change to the circumstances in which they currently find themselves, particularly if they were to live with the father in Rockhampton, both parents note that they are children used to change in their life and, in any event, it would not be so traumatic as they would be residing with their father and Ms F, with whom there is an obvious relationship and affection. Additionally, as noted by Ms P, the children would not experience, in her assessment, significant upheaval if they were to reside in Rockhampton, but may be emotionally effected if their mother were not to relocate with them.
Change simply for the sake of change, is to be avoided but where, in balance, change of circumstances could be seen as beneficial to the children, there is little of concern that would arise in respect of any detriment to the children in this matter.
No matter what might be the outcome in this matter, there will be practical difficulties and expenses associated with the children spending time with the other parent, if they continue to reside in Rockhampton and Townsville. It is a factor, therefore, that must be considered but it weighs evenly upon each party because the children clearly will need to be in one place or the other, and unless the parent without primary care were to move into the same locality, costs and difficulties will continue. It should be noted that the father says he cannot, because of his medical condition, move to Townsville. The mother also says that she will not move from Townsville to Rockhampton and she is of course entitled to take that position, but there is certainly less that would impact upon her in that regard.
I have already commented in these reasons at length about the capacity of the parents to meet the needs of the children and also as to their attitudes to the responsibilities of parenthood. Each can obviously meet the physical needs of the children with respect to a roof over their head, food on the table and ensuring proper clothing and attendance at school. Clearly, there is however a distinction to be drawn favourable to the father in respect of the capacity to meet the children’s emotional needs, as well as to displaying a proper and responsible attitude to parenting. It is a factor which is of particular significance in relation to this matter and as I noted when commenting upon the primary considerations, weighs heavily in favour of the father.
Finally, section 60CC(3)(l) requires the court to consider orders which are least likely to lead to the institution of further proceedings. It is impossible to say with certainty that one order will have that effect, or will be more likely to be a final determination than might be the case with another order. However, there is certainly some comfort to be taken from the fact that the father has established roots in Rockhampton, and appears settled in that locality. The mother, however, does not have that similarly secure or settled circumstance and I am certainly of the view that orders which have the children living primarily with the father, if the parties are not in the same locality, will provide a more secure base for the children, and therefore by inference ensure a more settled routine, and therefore less likelihood of further proceedings.
In light of these considerations, I am satisfied that with the father there is greater opportunities for the children to have their relationship with both parents developed to the fullest extent possible. Additionally, I am mindful of the need, as best it can be done, to provide a settled environment for the children and again am satisfied that that can best be achieved by the children living in Rockhampton, primarily with the father if the mother is not in the same locality, but if she is in the same locality, then on an equal shared basis.
Whilst consideration of course should be given to the wishes of the children, and they have been clearly stated, I am not satisfied that they should be given significant weight, particularly in light of the assessment of Ms P, and also in my assessment arising from the adverse influences of the mother and members of her family. The relationship with the mother and with others significant in the children’s lives is established and will continue to be fostered if the children live with the father and have the opportunity for significant and substantial time with the mother. As noted by Ms P, the children have a close relationship with their cousin and aunt, but the relationship with the father is “far more important”.
In all the circumstances, therefore, the children residing in Rockhampton, either in a shared care arrangement, should the mother determine to live there, or primarily with the father if the mother lives elsewhere, is the arrangement which will best meet the children’s needs and right to a relationship with both of their parents.
I have already in these reasons noted that in my assessment the presumption of equal shared parental responsibility is not rebutted, and am obviously required therefore, when considering the provisions of section 65DAA, to assess whether equal time or substantial and significant time would be in the children’s best interests and be reasonably practicable. Clearly, if the parties were in the same locality and the mother can effect a change in her residence, then equal time would be appropriate, and more importantly would be practicable. The children want it, the parents recognise that it would be appropriate, and the family report writer suggests that from an emotional perspective, it would be most beneficial to the children.
If the mother does not live in the same locality as the father, then of course equal time would not be practicable, particularly when one considers those matters identified in section 65DAA(5). Geography would loom large. These children are 12, 10 and 5 years of age, and their educational needs would require settled arrangements in relation to the school that they attend. It would be impossible and in fact, inappropriate to suggest other than that the children live with the father, if the parents are not in the same locality. There would obviously be opportunity however, for significant and substantial time to be available for the mother and the children to spend time together, and the mother can best determine how that might occur outside of gazetted school holiday periods.
For the reasons that I have therefore outlined in relation to this matter, I am satisfied that the Orders as indicated at the commencement of these reasons best reflect the appropriate parenting arrangements for the children.
I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of Judge Coker
Associate:
Date: 19 January 2015
2
3
2