Underwood and Wickes
[2011] FMCAfam 741
•29 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| UNDERWOOD & WICKES | [2011] FMCAfam 741 |
| FAMILY LAW – Parenting – two children aged ten and six years – mother and children live in Melbourne, father lives in Sydney – found that mother has exposed the children to risk by leaving them in the care of others who behaved inappropriately – mother found to have taken appropriate steps to address these concerns – orders made for the children to continue living with their mother in Melbourne and to spend regular time with their father in Sydney. |
| Family Law Act 1975, ss.11F, 60B, 60CA, 60CC, 61DA, 65DAA |
| MRR v GR [2010] HCA 4 |
| Applicant: | MS UNDERWOOD |
| Respondent: | MR WICKES |
| File Number: | SYC 906 of 2011 |
| Judgment of: | Bender FM |
| Hearing dates: | 21 & 22 July 2011 |
| Date of Last Submission: | 22 July 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 29 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Allen |
| Solicitors for the Applicant: | Robin Harrison & Associates |
| Counsel for the Respondent: | Ms Langham |
| Solicitors for the Respondent: | Ansell Lawyers |
ORDERS
The parties have equal shared parental responsibility for the children [X] born [in] 2000 (“[X]”) and [Y] born [in] 2004 (“[Y]”).
[X] and [Y] live with their mother.
[X] and [Y] spend time and communicate with their father as follows:
(a)from the first Saturday to the last Saturday in each of the first and third term Victoria school holidays;
(b)from the first Saturday to the second Saturday of the second term Victoria School holidays;
(c)for three weeks in the long summer vacation as agreed between the parties and failing agreement for the first half commencing the first Saturday in the 2011/2012 long summer vacation and each alternate year thereafter and for the second half concluding on the Saturday before school resumes in 2012/2013 and each alternate year thereafter;
(d)for one weekend during each school term, nominated by the father by giving the mother 14 days notice in writing;
(e)whenever the father is in Melbourne upon the father giving the mother seven days written notice of his intention to travel to Melbourne;
(f)by electronic communication including Skype, email and telephone with the father to contact [X] and [Y] no less than twice per week and otherwise upon the reasonable request of either [X] or [Y] to do so; and
(g)as otherwise agreed between the parties.
The father shall be responsible for the travel costs associated with [X] and [Y] spending time with him pursuant to these orders.
Each party is free to be fully involved in the school lives of [X] and [Y], to receive copies of school reports, school newsletters, school photograph order forms and the like and to attend all parent/teacher interviews, events and functions to which parents are normally invited.
Each party shall advise the other of any serious illness or injury suffered by either of [X] and [Y] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X] and [Y] or any of them, and from permitting any other person so to do.
The mother is to attend upon one of either Women’s Health in [details omitted] or such other counselling service as recommended by them to obtain counselling to assist her with the emotional impact of the breakdown of the marriage and to further assist her in obtaining insight into the impact of her unhappiness on [X] and [Y].
For the purposes of the counselling referred to in order 8 herein, the mother shall provide her counsellor with a copy of the reasons for judgment delivered on 29 July 2011.
IT IS NOTED that publication of this judgment under the pseudonym Underwood & Wickes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SYC 906 of 2011
| MS UNDERWOOD |
Applicant
And
| MR WICKES |
Respondent
REASONS FOR JUDGMENT
Introduction
1.The parties in this matter moved from New Zealand to Sydney in April 2007 with their sons [X] born [in] 2000 (“[X]”) and [Y] born [in] 2004 (“[Y]”).
2.In early 2009 the parties separated. In March 2010, by agreement, the mother, [X] and [Y] relocated to Melbourne. [X] and [Y] spend each of the term school holidays and part of the long summer vacation with their father in Sydney.
3.In the first term school holidays 2011, because of increasing concerns about [X] and [Y]’s care with their mother, and in particular the abuse they were receiving in the hands of their carers whilst the mother was working, the father did not return [X] and [Y] at the conclusion of his time.
4.In May 2011, the mother issued an urgent Application for a Recovery Order. At the court’s direction, the father returned to Melbourne with [X] and [Y] where a section 11F Child Inclusive Conference was held on 18 May 2011. Interim orders were made on that day for [X] and [Y] to remain in Melbourne with the mother, for the preparation of a full Family Report and for the matter to be listed for an urgent final hearing.
5.The mother is seeking orders for [X] and [Y] to continue to live with her in Melbourne and to spend regular holiday time with their father.
6.The father is seeking orders that [X] and [Y] live with him and his partner in Sydney and spend regular time with their mother during school holidays. The father indicated that in the event the mother moved back to Sydney, whilst he would prefer [X] and [Y] to live with him, he would not strongly oppose orders whereby they live with the mother and spend regular, significant and substantial time with him.
Background
7.The mother was born [in] 1976 in Western Somoa. She is 34 years of age. In 1992 the mother migrated to New Zealand where she met and married the father. The mother currently works on a part-time basis for a [omitted] in [D] and earns approximately $20,000.00 per annum. She has not re-partnered.
8.The father was born [in] 1974 in New Zealand. He is 37 years of age. He is employed as a [omitted]. He earns $115,000.00 per annum. He re-partnered shortly after separation and lives with his now partner, Ms T, in [P].
9.The parties married [in] 1999 and, as noted earlier, moved from New Zealand to Sydney in April 2007.
10.During the marriage the parties assumed “traditional” roles, with the father the income earner, working up to 60 hours per week, and the mother the homemaker and parent with the primary responsibility for the children.
11.Some months prior to separation, the mother invited Ms T, a woman of West Somoan origin who the mother believes to be her fourth cousin (a relationship Ms T denies) to live with her family because Ms T was in need of accommodation. Ms T lived with the parties until shortly prior to their separation.
12.In early 2009, the parties separated after what the father describes as increasing unhappiness and volatility in their relationship. Within four weeks, the father commenced cohabitation with Ms T.
13.
The mother believes the father began his relationship with
Ms T prior to separation and whilst Ms T was living with the parties. This is denied by the father and Ms T. The mother was and remains deeply hurt and bitter about what she perceives as their betrayal and the loss of her family unit.
14.After separation [X] and [Y] remained living with the mother in Sydney. They spent regular time with the father by agreement. The father’s evidence was his time with the children took place on most weekends to enable the mother to work. The mother’s evidence was that whilst the parties had this agreement, the father was unreliable and this ultimately resulted in her losing her employment.
15.In March 2010, by agreement, the mother, [X] and [Y] moved to live in Melbourne. The parties agreed [X] and [Y] would spend school holidays with the father.
16.Upon arrival in Melbourne, the mother, [X] and [Y] lived with the mother’s adoptive sister and her family in [C]. The mother had not met her adoptive sister or her family before moving to Melbourne.
17.In May 2010, the mother obtained part-time employment with [omitted]. At this time the mother moved from her sister’s home because of difficulties between [X] and [Y] and the sister’s children. The mother’s sister is deeply religious and opposes the use of televisions, computer games and the like and therefore there were many clashes between [X] and [Y] and her children, as well as between the mother and her sister.
18.Upon leaving her sister’s home, the mother moved to a three bedroom home in Property C with a family from West Somoa, consisting of the parents and their three children. In October 2010, another couple and their young baby also moved into Property C. This meant that there were five adults, six children and one baby living in the home.
19.
At the time the mother moved to Property C, she obtained full-time work with [omitted]. This required her to leave home around
7.00 am and not return home until 7.00pm from Monday to Friday. [X] and [Y] were therefore left in the care of the other adults in the Property C property.
20.When [X] and [Y] visited their father in the September/October 2010 term holidays, they complained to him of bullying by the other children in their home, of no-one assisting them with their homework and of eating two minute noodles for dinner. Both boys asked to live with their father.
21.After the mother agreed to address [X] and [Y]’s concerns, they returned to her care at the conclusion of the holidays.
22.Because of her long working hours, and the concerns raised by [X] and [Y], the mother left [employer omitted] and obtained a part-time position with her current employer, being a [omitted] in [D]. The mother’s initial working hours were Mondays and Fridays from 9.00 am to 5.00 pm, on Tuesdays from 9.00 am to 2.30 pm and on Sundays from 9.00 am to 4.30 pm.
23.When the mother, [X] and [Y] first came to Melbourne, they attended [L] School in [C]. In 2011 the mother changed [X] and [Y]’s school to [C] Primary School. The mother explained the change of school as addressing bullying problems the boys had experienced at [L] School.
24.In February 2011, the mother, [X] and [Y] and the couple Mr S (“Mr S”) and Ms F (“Ms F”) and their baby moved together to a property at Property G, [C].
25.When the mother was working and the boys were not at school, their care was left with Mr S and Ms F in the Property G, [C] home.
26.In April 2011, [X] and [Y] went to their father for the first term school holidays. [Y] had a sore under his right armpit which became severely infected such that he required two courses of antibiotics. [X] developed a sore right foot which also required medical attention.
27.Both [X] and [Y] complained to their father of bullying and harsh physical discipline at the hands of Mr S whilst their mother was at work.
28.[X] and [Y] both asked their father to be able to remain living in Sydney with him and his partner.
29.Because of his concerns as to their health, their living conditions and their requests to stay with him, the father made the decision not to return [X] and [Y] to their mother in Melbourne.
30.The father advised the mother of this decision and enrolled [X] and [Y] at [P] School.
31.The mother then issued the urgent Application that brought this matter before the court.
32.As noted earlier in this judgment, on 18 May 2011, after a section 11F Child Inclusive Conference, interim orders were made for [X] and [Y] to live with their mother in Melbourne and to spend the then upcoming second term holidays with their father in Sydney.
33.When the father and his partner travelled to Melbourne for the Family Report interviews in June 2011, [X] and [Y], over a family dinner with their father, again complained of ongoing recent harsh physical discipline by Mr S when the mother was absent from home. This included Mr S threatening to evict the mother, [X] and [Y] from the home, putting [X] in a choking position and chasing [Y] and hitting him with a chair. They indicated that they were scared of Mr S and that they locked themselves in their mother’s bedroom when she was not at home.
34.
On 14 July 2011, the mother, [X] and [Y] moved into rental premises at Property B, [C] on their own. The mother has a
12 month lease and describes the property as having three bedrooms and a big yard, and being only a five minute drive from the boys’ school.
35.It is the mother’s evidence that her employer is most flexible and understanding of her situation, and that she is now working Mondays, Tuesdays and Fridays from 9.00 am to 2.30 pm to ensure she is able to take [X] and [Y] to and from school. She also works Sundays from 9.00 am to 4.30 pm and gave evidence that her adoptive sister cares for [X] and [Y] during that time. The mother reports the issues that caused her to move from her sister’s home last year have been resolved and that she, [X] and [Y] now have a very positive relationship with her sister and her children, such that [X] and [Y] ask to go over to play with their cousins.
The mother’s evidence
36.The mother’s proposal is that [X] and [Y] continue to live with her in Melbourne and that they spend time with their father in Sydney for all of the first and third term school holidays, for one week in the second term school holidays and for two weeks in the long summer vacation.
37.It is the mother’s evidence that she has always been [X] and [Y]’s primary carer. Whilst the parties were married, the mother was engaged in home duties whilst the father was working as the income earner, at times working up to 60 hours per week.
38.The mother complained of the father being controlling and a bully, both before and after separation, and that communication between them was very difficult as she felt he was constantly looking to criticise her and her parenting.
39.It is the mother’s evidence that she remains extremely hurt and feels a strong sense of betrayal arising from the circumstances of the breakdown of her marriage to the father. She genuinely believes that he and his now partner commenced their relationship prior to separation. It was her evidence that Ms T is the daughter of her third cousin and was invited to live in her then family home because of that relationship and because Ms T had nowhere else to go.
40.It was the mother’s evidence that after the parties separated, she had hopes that they would be able to reconcile and was devastated when the father and Ms T commenced cohabitation within a month of separation.
41.Whilst the parties’ separation took place over two years ago, it was very apparent when the mother was giving her evidence that she was still extremely bitter towards the father because of this relationship and has real difficulties in communicating directly with the father because of these feelings.
42.It was also apparent from the mother’s evidence that she had not shielded [X] and [Y] from her feelings of hurt and betrayal, and that they were very conscious of how the mother feels and in particular the mother’s dislike of the father’s partner.
43.The mother was cross-examined at length about her living circumstances after her arrival in Melbourne. It was her evidence that within the Western Somoan culture it was not unusual for there to be shared living arrangements amongst families to enable those families to support each other emotionally and financially.
44.It was the mother’s evidence that she had told the boys that when she was at work that the other adults in the home would be responsible for their discipline. It was her evidence that when she was told, as part of the Family Report process, of the complaints of [X] and [Y] in relation to the severity of the physical discipline of them by Mr S, that she had spoken to him and requested that he cease such behaviour.
45.The mother conceded that physical discipline of children within her culture is acceptable. She indicated that she physically disciplines the children by slapping them on the backside with a thong or on the hand with a belt. It was her evidence that this occurred during the marriage and that the father himself physically disciplines the children. During the parties’ marriage, the father would refer [X] and [Y] to her for physical discipline if they had misbehaved.
46.It was the mother’s evidence that in order to address the concerns in relation to the living arrangements for [X] and [Y], she has taken a 12 month lease on a three bedroom home in [C], and that she, [X] and [Y] moved into that property on 14 July 2011. It was her evidence that no-one else but she and the boys would be living at that home.
47.The mother also gave evidence that she worked on a full-time basis with [omitted] for a period of six months in the latter half of 2010. The very long hours involved in that employment made it far too difficult for her to be available for [X] and [Y]. She therefore resigned from the [workplace omitted] and obtained her current employment working at a [omitted] in [D] in or around February 2011. It was her evidence that her employers are very sympathetic to her responsibilities as a single mother and she has recently reduced her hours on Mondays, Tuesdays and Fridays so that she works from 9.00 am to 2.30 pm, which means that she can drop the boys to school and pick them up at the end of their school day.
48.It was the mother’ s evidence she continues to work from 9.00 am to 4.30 pm on a Sunday, but that her adoptive sister is able to care for the boys on that day, as well as after school if that should become necessary at any time.
49.It was the mother’s evidence that whilst she, [X] and [Y] had some difficulties when they first lived with her adoptive sister in 2010, those difficulties have now been resolved between them and [X] and [Y] have a positive relationship with their cousins, aunt and uncle, as does she.
50.It was the mother’s evidence that she would reduce her hours further if that became necessary because the boys were unhappy with their care arrangements.
51.It was the mother’s evidence that she would do anything to ensure that the boys continued to live with her.
52.The mother was challenged in relation to concerns that [X] and [Y] had missed over 20 days of school in 2011, as well as being late on several occasions.
53.It was the mother’s evidence that 15 of the missed days related to the period [X] and [Y] were overheld by their father in Sydney and that both boys had days off school when unwell. In relation to the boys being late, it was her explanation that prior to purchasing her car, she and the boys walked to school and there had been occasions when one or other of them forgot something for that day’s class which resulted in them having to return home to get that item, causing them to be late.
54.The mother gave evidence that both boys had done well at school this year and attached their mid-year reports to the affidavit filed by her on 13 July 2011. [X] was reported to have:
“worked consistently to ensure his results are at or above the expected standard,”
55.[Y] was reported to:
“understand and demonstrate appropriate behaviour in a range of different settings… In literacy [Y] is working above the expected level of reading and at the appropriate level of writing and speaking and listening… In Numeracy, [Y] is working above expected level in Number and Applied Mathematics.”
56.Both boys’ work habits, measured by effort and class behaviour, were noted to be “excellent”.
57.The mother was cross-examined at some length in relation to her financial circumstances, and in particular her capacity to afford to live in her new premises on her own with [X] and [Y].
58.It was her evidence that she has an income of approximately $865.00 per week, consisting of her wages of $390.00, child support from the father of $375.00 and government benefits of $100.00. The mother’s rental is $265.00 per week and she has car payments of $85.00 per week. From the balance she has to meet her and the children’s living expenses, including utilities, food, clothing, petrol, insurances and the like. It was the mother’s evidence that she would manage her finances.
59.It is noted that shortly prior to moving into her new accommodation, the mother purchased a motor vehicle for $14,000.00, $7,000.00 of which was paid from savings and the balance by way of a loan. The mother was also able to pay a bond and the first month’s rental on the newly leased property from her savings. It was the mother’s evidence that she had been able to save some $10,000.00 to meet these expenses since arriving in Melbourne. This does show some capacity to manage her finances in circumstances where she had a somewhat limited income.
The father’s evidence
The father
60.It is the father’s proposal that [X] and [Y] live with he and his partner, Ms T, in Sydney and that they spend regular holiday time with their mother in Melbourne.
61.It is the father’s evidence that he and Ms T currently live in a one bedroom unit in [P], but if [X] and [Y] were to live with them, they would obtain larger accommodation. It was the father’s evidence that when he decided not to return the boys in May of this year, he had already made enquiries and was about to rent a four bedroom home for he, Ms T and the boys.
62.It is the father’s evidence that he is employed as a [omitted], and has an annual income of approximately $115,000.00 per annum. He works Monday to Friday and indicated some degree of flexibility in relation to his working hours, including a capacity to work from home.
63.It was the father’s evidence that he had become increasingly concerned about the quality of care that the mother was providing to [X] and [Y] in Melbourne, and in particular her lack of attention to their health needs, the overcrowded accommodation in which they were living, the emotional and physical abuse to which they were being subjected by the other people in the mother’s home whilst she was at work, and to the neglect of their education which was evidenced by the large number of days the boys had been absent from or late to school in 2011.
64.It was the father’s evidence that the boys had reported to him that they were increasingly unhappy living with their mother and that they were continually asking to be able to live with him and Ms T in Sydney.
65.The father also complained of the mother’s failure to communicate with him in relation to issues concerning [X] and [Y]. By way of example, he indicated that when [X] and [Y] visited him for the first time in the June 2010 school holidays, [Y] arrived with a nasty rash for which he had been prescribed antibiotics. It was his evidence the mother had not advised him of the rash or any directions that the doctor had given for treatment of the rash.
66.The father also expressed concerns in relation to [X] and [Y] being exposed to the mother’s negative views of himself and Ms T, albeit he expressed some understanding as to why she feels so hurt and betrayed by the existence of that relationship.
67.In his affidavit material, the father had made complaint of the mother allowing [X] and [Y] to play M15+ video games. However, when cross-examined on this point, it became apparent that the father himself allowed [X] and [Y] to play such games when they were in his care and had done so prior to separation.
68.The father also raised concerns about the mother using physical discipline on [X] and [Y]. Again under cross-examination the father had to concede that he too had used physical discipline on both [X] and [Y], and that he and the mother had both disciplined the boys in this way during the marriage, including the father sending the boys to their mother for such discipline when they had misbehaved.
69.It was the father’s evidence that in the 2010 third term holidays and the 2011 first term holidays, the boys had expressed to he and his partner their strong wishes to live with them. It was the father’s evidence that on each of these occasions he then organised what he termed a “conference call” between himself, the mother and the boys, to enable the boys to tell their mother how they felt and to express to her their wish to remain living with the father in Sydney. On both occasions the mother became quite distressed, as did both [X] and [Y]. When questioned as to whether it was appropriate to have involved the boys in these discussions in this manner, it was the father’s evidence that he thought it was an appropriate way to enable the boys to tell their mother how they were feeling.
70.It was the father’s evidence that he did not have confidence that the mother would be able to maintain independent living in Melbourne for herself and the boys, and that they continued to be at risk of instability and lack of support emotionally, physically and in the context of their education.
71.It was the father’s evidence that he believed that he and his partner were able to provide a stable and secure home environment for [X] and [Y], and that it would be in their best interests if they were to live with him and Ms T.
Ms T
72.Ms T is the father’s partner. She filed an affidavit in these proceedings sworn 21 July 2011 and also gave viva voce evidence at the final hearing of the matter.
73.It was Ms T’s evidence that she is a [occupation omitted], who works for [omitted], approximately two stations from [P] where she lives with the father.
74.It was her evidence that she works from 7.00 am to 3.00 pm on Mondays and Thursdays and from 8.45 am to 5.00 pm on Tuesdays, Wednesdays and Fridays.
75.It was Ms T’s evidence that she did not believe she and the mother were related, though conceded that her family and the mother’s family lived two houses apart in their village in Western Somoa.
76.Ms T agreed that she had moved in with the parties at the invitation of the mother at a time where she was in need of somewhere to live. Ms T denied that any relationship between herself and the father commenced prior to separation, but agreed that a romantic relationship started up shortly thereafter and that they commenced cohabitation within a month of that separation. She could understand on that basis why the mother had been very hurt and felt somewhat betrayed that these were the circumstances of the breakup of her marriage.
77.It was Ms T’s evidence that both [X] and [Y] had complained to her about the treatment meted out to them by the other adults in their mother’s home when she was at work and that they had both expressed a desire to live with their father and her in Sydney.
78.It was Ms T’s evidence that she had a good relationship with [X] and [Y] and was very supportive of the father’s Application that they come and live with them.
Ms C
79.Ms C is a Family Consultant with the Federal Magistrates Court and she prepared a Family Report in this matter dated 4 July 2011. Ms C also gave viva voce evidence at the final hearing of this matter.
80.In paragraph 38 of her Report, Ms C describes the father as follows:
“Mr Wickes presents as a caring father who is co-operative and competent and committed to the children and wants what he believes is in their best interests. Since separation he has remained consistently involved in their lives. Mr Wickes provides [X] and [Y] with a contrast in parenting which probably reflects a more authoritative approach paralleled with what he perceives is the mother’s more care free style.”
81.In paragraph 39 of her Report, Ms C describes the mother as follows:
“Ms Underwood presents as assertive, co-operative and child focused. The children have lived with her since separation and she sees no reason why this should not continue. She strongly asserts that she cares for the children appropriately and attends to their needs despite Mr Wickes’s claims that she is neglectful at times. Ms Underwood has made some choices in the last year with living arrangements that have inadvertently placed the children at risk, made them fearful in their home and their education has been disrupted with significant absences.”
82.In paragraph 37 of her Report, Ms C makes the following observations in relation to both parties:
“The parents’ narratives lacked a focus on the needs of the children and insight as to how the current impasse has impacted on them. Ms Underwood and Mr Wickes remain distrustful of one another as they continue in their attempts to undermine each other’s role as parents. The parents have capitalised on the children’s growing awareness and capacity to make judgements about the other parent and on their potential to act as an ally in the parental conflict. Each parent is unintentionally placing their own needs over their children’s needs for protection.”
83.Ms C indicated that both [X] and [Y] expressed a desire to live with their father.
84.In paragraph 31 of her Report, she made the following observations:
“Both boys have consistently indicated they wished to live with their Dad although they also present as not really understanding the permanency of these arrangements. Both, during their individual interviews indicated their mother knew they wanted to live with their father and they missed him and the things they do together with him.”
85.Further, in relation to the wishes of the boys to live with their father, in paragraph 46 of her Report, Ms C set out the following:
“Both boys clearly stated they miss their father and would like to spend more time with him and this may account for their desperate views that they want to live with their father now, as they believe they may not have another opportunity to experience this.”
86.Ms C indicated in her Report that in many ways she considered this matter to be what was effectively a relocation case.
87.It was her position that she believed there were three options available for the parties in relation to the living arrangements for [X] and [Y].
88.The first option is for the mother and the children to return to live in New South Wales proximate to the father so that the children would be able to spend more time with their father in accordance with their wishes. In relation to this option, she noted that the risk to the children of harm whilst in the care of others would be significantly reduced and the children could return to the school they had been enrolled in when their father kept them in April 2011.
89.The second option would be for [X] and [Y] to live with their father and Ms T in New South Wales and reverse the current parenting arrangements. Ms C noted the benefits of this arrangement would be the children would not be subjected to inappropriate care by other adults and their health and educational needs would be routinely managed. However she noted that the disadvantages would be that [X] and [Y] would miss their mother and in all likelihood not really comprehend the enormity of the changes that could impact on them emotionally.
90.The third option was for [X] and [Y] to remain with their mother in Victoria and for the current parenting arrangements to continue. If this were to be the circumstance, Ms C indicated that the mother would need to immediately change her living arrangements so that the children were protected from any further risk of physical and emotional abuse by any other adults and she would also need to ensure the children’s education was a priority and that they attended school regularly.
91.At paragraph 50 of her Report, Ms C summed up the parents’ tasks in relation to the future for [X] and [Y] as follows:
“The task for the parents is to demonstrate clear and positive communication, to place the needs of their children over their own needs for revenge and control to end this current impasse and refocus their energies on co-operative parenting. Maintaining a strong connection and relationship with each parent, in the absence of parental conflict should provide [X] and [Y] with a solid foundation for happy, healthy and trusting adult relationships into the future.”
92.
Under the heading “Recommendations” on page 15 of her Report,
Ms C set out the following:
i.The parents maintain equal shared parental responsibility for the long term decision making and care of [X] and [Y]. Each parent maintains sole parental responsibility for day to day decisions whilst the children are in their respective care.
ii.If the Court decides it is in [X] and [Y]’s best interests to remain in the care of their mother it would be in their best interests if both parents lived in the same state so the children can spend positive and regular time with their father.
iii.Ms Underwood must ensure the children attend school regularly.
iv.If the Court decides it is in [X] and [Y]’s best interests to live with their father in NSW, then the time they spend with their mother is to be organised between the parents to also accommodate Ms Underwood work commitments but not less than a week of every school holiday period.
v.Regardless of with which parent the children live, Skype should be established and financially maintained so the children can communicate with their other parent. The children should have phone contact at least twice weekly and be afforded privacy for this to occur.
vi.Ms Underwood is to ensure appropriate accommodation for the children and that she undertakes their primary care and does not abrogate responsibility to other adults in the home.
vii.If the children are placed with their father, Mr Wickes is to ensure he locates in a timely manner appropriate accommodation which includes a separate bedroom for the children.
viii.The parents are to cease talking with and involving the children in Court matters and their adult hostilities. The use of a communication book and text messages may assist this process.
93.At the final hearing, I asked Ms C that if the court could be satisfied that the mother had addressed the issues around the accommodation that she provided the children in Melbourne and had developed the requisite insights that the living arrangements that she had put in place for [X] and [Y] had caused them extraordinary distress, would that be a matter that the court should give considerable weight to. Her answer was quite succinctly:
“Yes your Honour.”
94.Further, Ms C was asked what would be the impact on [X] and [Y] if orders were made that they continue to live with their mother and see their father in accordance with the current arrangements. Ms C’s response was as follows:
“If the children are safe in their mother’s care, and if she is able to ensure that they attend school regularly, more regularly than they have in the first two terms of this year, and there is some commitment by both parents to other forms of communication such as Skype and telephones, mobiles, I think the impact on the children will be minimal. I think that they will continue on doing what they do… I think the impact would be minimal in terms of their development and their emotional well-being and their psychological well-being.”
95.I asked Ms C that in the event I formed the view that it was in the boys’ best interests to continue to live in Melbourne with their mother, would arrangements for [X] and [Y] to spend a weekend, particularly if it were a long weekend, in each term with their father in addition to school holiday time be beneficial. Ms C’s response was as follows:
“I think that would benefit the boys significantly, your Honour.”
96.Finally, I asked Ms C that given the long-standing level of bitterness experienced by the mother in relation to the breakdown of her marriage and her inability to shield both [X] and [Y] from that bitterness, would she benefit from some personal counselling to assist her in dealing with those emotions and developing an understanding of the negative impact on [X] and [Y] of exposing them to her feelings about their father. It was Ms C’s response that the mother would greatly benefit from such an intervention.
Best interests of the child
97.Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
98.Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
99.Section 61da of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of a child that the parents have equal parental responsibility. Subsections 1 and 2 of that section provide as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
100.In this matter, the parties are in agreement that an order should be made for them to have equal shared parental responsibility for [X] and [Y]. The mother’s continuing sense of betrayal and resultant bitterness towards the father and the father’s belief that the mother is poorly parenting their sons at this time has resulted in the parties’ capacity to communicate with each other in a constructive and meaningful way in relation to their sons’ needs being very much damaged.
101.However, [X] and [Y] love both their parents dearly and it is vital for them that their parents find a way forward such that they are both contributing to and involved in the decisions that relate to [X] and [Y]’s long-term care and welfare.
102.In these circumstances, I am of the view that an order for equal shared parental responsibility is one that is made appropriately in this matter.
103.Where the court makes an order that parents have equal shared parental responsibility for their child, section 65daa of the Act requires the court to consider the child spending equal time, or substantial and significant time, with each of his or her parents.
104.Section 65daa of the Act provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
105.In the decision of MRR v GR [2010] HCA 4, the High Court considered the relationship between the question of whether it is in the best interests of the child to spend equal time with each of his or her parents and what is reasonably practicable.
106.In paragraph 13 of MRR v GR (supra), the High Court held:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist[1]. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub‑section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
[1] See Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651 [130]-[131] per Gummow J; [1999] HCA 21.
107.In paragraph 15 of their decision, the High Court further stated:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible…
108.Section 65daa(5) sets out the factors the court must have regard to when considering the question of “reasonably practicable” for the purposes of section 65daa(1) and (2). It provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
109.Whilst Ms C, the Family Report Writer, considered the ideal outcome for [X] and [Y] would be for they and their mother to move back to Sydney so that they could be in close proximity to their father, it was the mother’s evidence that whilst earlier this year she had considered such a move, it was her wish to remain living in Melbourne with [X] and [Y].
110.In these circumstances, whilst it may well be in [X] and [Y]’s best interests to spend equal time or significant and substantial time with each of their parents, the reality is that whilst their mother lives in Melbourne and their father lives in Sydney, it is not practicable for such orders to be made.
111.In these circumstances, the court will have to determine whether it is in [X] and [Y]’s best interests to remain living in Melbourne with their mother or to move to live in Sydney with their father.
112.To determine what is in the best interests of [X] and [Y], the court must consider the matters set out in sections 60cc(2) and (3) of the Act. Each of the matters set out under those subsections must be considered in the context of each of the parties’ behaviours and proposals, and a decision made as to which of those proposals, or such other arrangement as the court may determine, will be in their best interests.
113.Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
114.[X] and [Y] have a close, loving and positive relationship with both their parents.
115.The mother has been [X] and [Y]’s primary carer since birth and they have been in her primary care since separation.
116.It is clear that both [X] and [Y] are missing their father and crave an opportunity to spend more time with him than the current arrangements allow within the geographical constraints of the children living in Melbourne and the father living in Sydney.
117.As set out earlier in this judgment, it was Ms C’s evidence that if the current living arrangements, whereby [X] and [Y] see their father during school holidays continued, it would not impact on the strength of their relationship with their father, especially if both parents are much more positive about the other’s role in their sons’ lives and there is more effort made to ensure that the boys are able to have regular electronic communication with their father, particularly utilising such methods as Skype.
118.Ms C raised some concern as to the commitment of the father in encouraging the boys’ relationship with their mother in the event that [X] and [Y] were to live with him.
119.It was of some concern that in the father’s evidence, he indicated that when [X] and [Y] speak to their mother whilst in his care, he often places them on speaker phone in his hearing to, as he explained, ensure that the mother did not say anything which upset the boys.
120.The father seemed to lack some insight as to the restrictions that this placed on [X] and [Y] in being able to openly communicate with their mother and the message it gave them that he believes they need to be protected from their mother.
121.It was of similar concern that there have been periods since the mother moved to Melbourne where the boys’ communication with their father has been quite limited. This occurred particularly after the mother was served with the father’s Application for Divorce where there were many days thereafter when the father was unable to speak with his sons.
122.It is also apparent that despite efforts to do so on behalf of the father, since arriving in Melbourne the mother has not put in place arrangements to ensure that [X] and [Y] have been able to have any Skype communications with their father.
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
123.This subsection in many ways goes to the crux of the matter that is currently before the court.
124.There is no doubt that since moving to Melbourne and whilst in their mother’s care, [X] and [Y] have been subjected to both physical and psychological harm, as well as being exposed to abuse.
125.This harm to the boys has not been at the hands of the mother, but rather perpetrated by other adult persons to whom the mother entrusted the care of the boys whilst she was at work. Whilst the mother gave evidence that she had spoken to the people responsible for these behaviours and asked them to desist, she continued to leave the boys in their care and it is apparent that the abuse continued subsequent to her interventions on the boys’ behalf.
126.It is also of real concern that whilst the mother would appear to now acknowledge the inappropriateness of that care and to have taken the appropriate steps to remedy the situation by moving herself and the boys into their own home, it has taken her many months to do so and, it must be noted, she only did so a week prior to the final hearing of this matter.
127.Ms C commented on the inappropriate involvement by both parents of the boys in their dispute. She noted in paragraph 45 of her Report that both of the parents had discussed the nature of their conflict with [X] and [Y], and that both boys were very much aware of their parents’ mutual desire that they live with each of them.
128.In paragraph 41 of her Report, Ms C commented on the impact that the parents’ behaviours since separation had had on [X] and [Y]. She stated as follows:
“For [X] and [Y], their resources and trust in other adults has been violated, their trust in their parents ability to keep them safe out of their conflict has also been tested, leaving their self esteem vulnerable.”
129.When discussing [X], Ms C made the following observations in paragraph 42 of her Report:
“[X] was observed as anxious throughout the interview and despite him saying he wanted to live with his father, he seemed confused about what this would or could mean in the longer term. [X] is approaching adolescence and he should be supported to develop his independence in an age appropriate way. He seemed to struggle with not only the emotional content of such a decision but the onerous responsibility placed on him.”
130.When discussing [Y], Ms C in paragraph 43 of her Report made the following observations:
“He seems sensitive and has struggled with the impact of being bullied at school recently. [Y] needs a stable home base where his confidence can be maintained and his sense of self developed. During the observations [Y] demonstrated an attachment to his mother as he took any opportunity to nuzzle into and cuddle her. [Y], although he stated he wanted to live with his father did not appear solid about this.”
131.It is therefore apparent that both [X] and [Y] are being emotionally and psychologically impacted by their parents’ ongoing conflict and their inappropriate involvement of the children in their highly conflicted relationship and in these proceedings.
132.Further, the mother’s inability to shield [X] and [Y] from her feelings of betrayal and bitterness towards the father and Ms T adds a further level of distress to the situation in which [X] and [Y] now find themselves, as they know that they cannot discuss their father or Ms T with their mother without causing her a great deal of upset.
133.Section 60cc(3) of the Act sets out the additional considerations that are to be taken into account by the court in determining what is in the children’s best interests. I will consider each of these in turn where relevant.
Section 60cc 3(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
134.[X] is ten years of age and [Y] is six years of age. Both [X] and [Y] expressed a strong desire to live with their father.
135.When discussing the views expressed by [X] and [Y] in this regard, Ms C in paragraph 43 of her Report noted the following:
“[Y]… like his brother does not seem to grasp if he lived with his father it would not be like having holidays and the impact of not seeing their mother every day may in the longer term be significant for the children.”
136.Further in paragraph 46 of her Report, Ms C makes the following observations in relation to these views:
“Both boys clearly stated they miss their father and would like to spend more time with him and this may account for their desperate views that they want to live with their father now as they believe they may not have another opportunity to experience this.”
137.In cross-examination, Ms C was asked to further expand on these observations in her Report. Ms C was asked whether one should be cautious about relying simply on the children’s stated views. Ms C replied as follows:
“I think always with children – especially younger children who are not clearly able to say exactly what they want, I think that it’s always important to take what they say and weight it with what’s happening in their life.
My feeling from the children is that they miss their father and they want to be with him more than they are, but they don’t – neither of them really understand perhaps the longer term impact of the decisions that they are saying that they want, or the things that they are saying that they want, and that that could… emotionally impact on them quite significantly.”
138.Ms C was then asked in relation to that emotional impact, and in particular being away from the care of their mother who had been their primary carer, whether that impact could be a negative one. Ms C replied as follows:
“Yes, the children know their mother and they have lived with her since separation, you know, albeit in some very difficult and unacceptable, in my opinion, your Honour, circumstances, but they have not lived full time with their father and Ms T at all. So it’s untested and it’s unknown, and they are young children.”
139.It was Ms C’s evidence that of the two boys, [X] expressed the strongest desire to live with his father. Ms C was asked as to her assessment of [X]’s current level of maturity. It was her evidence as follows:
“I think [X] is probably – he certainly is not at the – he’s not in adolescence or even pre-pubescent, I would think, just yet. I thought that he’s still quite emotionally young.”
140.It was Ms C’s evidence that whilst [X] and [Y] were expressing quite a strong wish to live with their father, given their relative young ages and level of immaturity, they really did not understand or comprehend what such a dramatic move away from their primary carer would actually entail. She expressed concern that neither [X] or [Y] had ever experienced living with their father and Ms T and that there was a real potential for there to be a negative emotional impact on them being away from their mother who had been their primary carer for all their lives.
141.In these circumstances, Ms C expressed some reservations about the court placing great weight on the views and wishes expressed by [X] and [Y] as to where it is they should live.
Section 60cc 3(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)
142.As previously noted in this judgment, [X] and [Y] have a close and loving relationship with both their mother and their father.
143.The mother has been [X] and [Y]’s primary carer for all their lives.
144.Since moving to Melbourne, there is no doubt that [X] and [Y] have missed the opportunity for regular and frequent interaction with their father. This has been exacerbated by the increasing levels of conflict between their parents during this period.
145.[X] and [Y] also have a good relationship with Ms T, their father’s partner, albeit they are both conscious of their mother’s dislike of Ms T.
146.The mother has made contact with her adoptive sister since moving to Melbourne and it would appear, after some initial difficulties, a positive relationship is being formed with the adoptive sister’s family in Melbourne.
147.Neither party otherwise gave evidence that they have any other extended family living in Australia.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
148.In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
149.This judgment has, at length, canvassed the difficulties these parties have in their communication with each other and in shielding [X] and [Y] from their negative views of the other.
150.The mother argued that despite how she feels, she has encouraged [X] and [Y]’s relationship with the father and that since separation the boys have spent regular time with their father. The mother’s evidence was that since her move to Melbourne she has ensured that the boys have returned to spend time with their father in each of the school holidays as had been agreed between the parties.
151.Each parent accuses the other of attempting to undermine [X] and [Y]’s relationship with them and to some degree there is veracity in each of the respective arguments in this regard based on the evidence heard by this court.
152.The mother has inappropriately exposed [X] and [Y] to her bitterness and unhappiness with the father in the context of the circumstances of the breakdown of the relationship. By way of example, when served with the Divorce Application issued by the father in February 2011, the mother showed the court documents to [X] and [Y]. Her explanation for this action was because she wanted [X] in particular to understand that there was no hope of reconciliation between herself and the father. This evidence was less than convincing and I am of the view that the mother showed the children the court documents because of her hurt that the father was proceeding down this path.
153.In relation to the father, this judgment has already set out the circumstances of the so-called “conference calls” made by the father in relation to the boys being given an opportunity to tell their mother they wanted to live with him. The emotional distress this caused them and the lack of insight of the father as the inappropriateness of this behaviour is also concerning.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(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
154.That the mother’s move to Melbourne with [X] and [Y] in 2010, albeit by agreement between the parties, has impacted on [X] and [Y] and their relationship with their father has already been expanded on at some length in this judgment.
155.It was noted by Ms C that if that living arrangement was to continue, she was of the view that as long as the boys continue to spend regular holiday, and ideally additional time with their father, then this would not impact upon their emotional well-being.
156.If however [X] and [Y] were to move to live with their father in Sydney and their mother remained in Melbourne, Ms C had some real concerns about the impact that such a move would have on [X] and [Y].
157.Because the mother has been their primary carer since birth, Ms C was most concerned that whilst she had no doubt about the father’s capacity to physically care for the children, there had to be a real degree of uncertainty as to what the emotional impact on the children would be and the degree to which both [X] and [Y] would actually miss their mother who had been their primary caregiver to date.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
158.The practical difficulties for [X] and [Y] in being able to spend regular time with both their parents since their move to Melbourne has already been canvassed.
159.The possibility of additional time taking place between [X] and [Y] and their father (or their mother if the situation were to be reversed) was discussed with Ms C and she responded very positively that if such an arrangement could be put in place it would be very much to the benefit of both boys.
160.The practical difficulty of course is the cost of travel between Sydney and Melbourne for [X] and [Y]. The mother’s financial circumstances have been set out in this judgment and it is apparent that she does not have a great deal of spare disposable income. By contrast, the father and his partner have a combined income of approximately $160,000.00 per annum and in those circumstances it would seem that they are in a position to accommodate [X] and [Y] spending more time with the parent they are not living with than the current arrangements allow.
Section 60cc 3(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
161.I am satisfied, with some reservations, that both parties have the capacity to meet the physical, emotional and intellectual needs of [X] and [Y].
162.The reality is however that in the last 12 months in particular, the mother has failed both [X] and [Y] in this regard.
163.Whilst not deliberately doing so, the choices that the mother has made in relation to the living arrangements for herself and [X] and [Y] have placed both boys at risk, both physically and emotionally because of the behaviours of those in whose care she left them.
164.Additionally, her inability to shield [X] and [Y] from her bitterness and sense of betrayal at the hands of the father and his partner has also exposed them to inappropriate emotional harm.
165.The father has also exposed [X] and [Y] to his negative views of the mother’s parenting and has overly embroiled them in the dispute that is at hand, making them both feel pressured to make choices about where it is they should live in the full knowledge of the father’s belief and desire that they should live with him.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
166.The mother is West Somoan as are those with whom she has been living since moving to Melbourne.
167.When giving her evidence in relation to many of the aspects of the living circumstances of [X] and [Y] in the last 12 months, and in particular the communal living arrangements, instances of physical discipline, her sharing of bedrooms and beds with the boys, and the sharing of childcare responsibilities, it was the mother’s evidence that this was not unusual in the West Somoan culture.
168.Whilst not disputing the mother’s evidence in this regard, the reality is that those living arrangements resulted in [X] and [Y] being placed at risk and her explanations that these arrangements were culturally acceptable do not justify the risks to which [X] and [Y] were exposed during this period.
Section 60cc 3(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;
169.Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
170.I have been quite critical of both parents in the body of this judgment to date.
171.However, I would note that both parties are loving and committed parents who are genuinely concerned to do what they think is in the best interests of their sons.
172.As noted earlier in this judgment, Ms C observed the father to be caring, competent and cooperative and someone who is committed to his children, whilst the mother was noted to be cooperative and child-focused.
173.The father has consistently paid child support at a high level to the mother since separation in the sum of $750.00 per fortnight, as well as meeting all the costs associated with [X] and [Y] spending regular time with him.
174.The mother has, particularly in recent times, found appropriate accommodation for herself, [X] and [Y], as well as adjusting her working arrangements in order to address the concerns and complaints that had been made about their living arrangements in Melbourne.
175.What [X] and [Y] now need both of their parents to do is to put aside their intense personal dislike of the other and their ongoing conflict, as much as they possibly can, in order to better cooperatively co-parent [X] and [Y] into the future.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
176.Both parents concede that they have used physical discipline on [X] and [Y]. It was the mother’s evidence that this was not unusual within the West Somoan culture and that it involved hitting them with a thong across the backside or a belt across the hand.
177.Physical discipline is not acceptable within this country and both parents should be using alternate disciplinary measures with [X] and [Y] to manage any inappropriate behaviour.
178.Further, neither parent should be allowing any third party to use any form of physical discipline on [X] and [Y] when left in their care.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
179.Not relevant.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
180.To their credit, until very recently, and despite their difficulties in communicating with each other, the parties have been able to put in place arrangements for [X] and [Y]’s care by agreement.
181.The current proceedings have arisen as a direct result of the father’s legitimate concerns that [X] and [Y] were being placed at risk in their mother’s care.
182.Whilst the mother would appear to have now addressed those concerns, if they were to continue into the future, it would be absolutely incumbent upon the father to pursue further orders in this court.
183.In her viva voce evidence, Ms C noted that it is possible that as [X] moves into adolescence, his wish to live with his father may become stronger and he may well seek to pursue such an outcome at that time.
184.Accordingly, orders made at this stage can only put in place living arrangements that are in [X] and [Y]’s best interests at this time.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
185.It is only very recently that the mother seems to have acted to address the real concerns that the father, and this court, has had in relation to her living arrangements since moving to Melbourne and the impact that those living arrangements have had on [X] and [Y].
186.The genuineness of the mother’s insights as to the inappropriateness of these living arrangements is yet to be fully tested, as is her commitment to ensuring that her new living arrangements remain in place.
187.The mother is very much dependent upon others, and in particular the goodwill of her adoptive sister, in relation to the care of [X] and [Y] on a Sunday to enable her to work. If there should be a breakdown in that relationship, as there has been in the past, the mother would appear to not have alternate support networks to assist her in [X] and [Y]’s care.
188.Whilst it was the mother’s evidence that if that were to occur she would stop working, a reduction in her hours of work would jeopardise her financial position and bring into question her capacity to continue to maintain an independent home for herself, [X] and [Y].
189.By comparison, the father and his partner are in a much stronger financial situation and are much less at risk of disruption through economic constraints. However, both the father and his partner work full-time and neither provided evidence to the court as to the proposed care arrangements for [X] and [Y] around their full-time work commitments if orders were made for [X] and [Y] to live with them.
Conclusion
190.This matter is before this court as a direct result of real concerns about the inappropriate risks to which the parties’ sons [X] and [Y] were exposed whilst in the mother’s care after she moved from Sydney to Melbourne in March 2010.
191.The parties moved from New Zealand to Sydney in 2007 and separated acrimoniously in early 2009. The mother, who has always been [X] and [Y]’s primary carer retained the primary care of the children after separation in Sydney. In March 2010, by agreement, the mother, [X] and [Y] moved from Sydney to Melbourne and thereafter the boys have spent most of their school holidays with their father in Sydney.
192.Upon her arrival in Melbourne, the mother lived in three different residences with differing large other family constellations. In order to support herself, [X] and [Y], the mother was required to work and she left [X] and [Y] in the care of the other adults in those households during those times.
193.Unfortunately, the adults in whose care [X] and [Y] were left by their mother were physically and emotionally abusive of [X] and [Y] such that they were placed at risk.
194.In the week prior to the final hearing, the mother took positive steps to address this situation by renting a new house for herself, [X] and [Y] and by adjusting her working hours so that she is available to care for [X] and [Y] outside of school hours, save for Sundays when they are cared for by her adoptive sister.
195.The father and his partner, who have remained in Sydney, both have well paid, secure employment and are in a position to provide [X] and [Y] with a secure, stable home.
196.Both [X] and [Y] have expressed a strong desire to live with their father.
197.The primary question therefore in determining what is in [X] and [Y]’s best interests is what confidence can the court have that the mother has grasped the inappropriateness of the circumstances into which she placed [X] and [Y] such that they were at risk and that the measures she has taken to address those concerns will continue to be put into effect by her into the future.
198.The court must also consider what weight should be given to the wishes of [X] and [Y] to live with their father given their young ages, their lack of maturity and their lack of any real understanding of what it would mean to move away from living with their mother who has always been their primary carer.
199.That both parties love their sons is without question.
200.The mother was convincing as a devoted and caring parent who was genuine when she told the court that she would do anything for her sons.
201.However, in the last 12 months, in the struggle to make ends meet, in adjusting to life in a new city and in her ongoing bitterness and hurt towards the father as a result of the breakdown of their marriage, the mother lost sight of the impact the decisions that she was making was having on her sons. These proceedings have served to be a harsh wake-up call to her.
202.[X] and [Y] have become increasingly unhappy in their mother’s care. Whilst it was her evidence that she thought [X] and [Y] tell her everything, it became very apparent that they were becoming more and more reluctant to do so and she, when they did, wasn’t hearing them or acting on their concerns.
203.She is now hearing them and she has now acted.
204.I am satisfied that the mother is genuine in her evidence to this court that she is committed to ensuring that she, [X] and [Y] alone share accommodation, that she will adjust her working hours to be available to the boys to care for them much more regularly and that she will ensure that they continue to engage properly in their education.
205.The test of course will be that she continues this commitment into the future. The reality is that if she doesn’t, then this court will be called upon to revisit [X] and [Y]’s living arrangements.
206.In relation to [X] and [Y]’s wishes to live with their father, I am of the view that their wishes are in part a reflection of their unhappiness over the last 12 months, in part a reflection of just how much they are missing their father since moving to Melbourne and the limited time they have been able to spend with him, and in part a fear that they might not be afforded an opportunity to live with their father in the future. However, having considered the evidence of Ms C, I am of the view that neither [X] or [Y] have the requisite age or level of emotional maturity to fully understand the implications of a move to live with their father and at this stage their express views in this matter should not be determinate of the ultimate outcome.
207.Accordingly, I intend to make orders that [X] and [Y] continue to live in Melbourne with their mother and that they spend the majority of their school holidays with their father. Orders will also be made for [X] and [Y] to spend an additional weekend in each term with their father, ideally over a long weekend, upon the father giving the mother 14 days written notice of him being in a position to exercise such time.
208.Additionally, orders will be made that will require both parties to do everything necessary to establish a Skype connection to enable [X] and [Y] to speak to their father by Skype at least twice weekly, in addition to regular telephone communication. Those orders will require that the boys be afforded privacy by both parents when they are communicating with the parent with whom they are not living.
209.Orders will also be made that will require the mother to undertake counselling to assist her to move on from the emotional impact of her separation from the father, and to also assist her in obtaining some greater insights as to the impact of her unhappiness and bitterness about the breakdown of the marriage on her sons.
210.Finally, whilst this judgment has made it very clear that if [X] and [Y] are again placed at risk by their mother, their living arrangements will be re-visited, this is not an invitation to the father to cross-examine, nit-pick or actively undermine the mother’s parenting role with [X] and [Y].
211.As was noted by Ms C in her Report:
“The task for the parents is to demonstrate clear and positive communication, to place the needs of their children over their own needs for revenge and control to end this current impasse and refocus their energies on co-operative parenting.”
212.I hope for [X] and [Y]’s sake these parties make every effort to do just that.
I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 29 July 2011
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