Valone and Sambrook

FAMILY COURT OF AUSTRALIA

VALONE & SAMBROOK

[2010] FamCA 428

FAMILY LAW – CHILDREN – Intractable conflict – 4 child sibling group that has been separated 1 child with the father and 3 children with the mother for the majority of their lives – Father has remarried and lives with 2 step children – Mother has a child from a previous relationship – Interim orders have established a regime where the children are together each weekend – Each party seeks that all children live with them – Proposal of each parent presents an immense change for the children – Parties have no capacity to co-operate in a functional parenting relationship – Fostering time for the children to be together is particularly important in this case – Not persuaded that the current arrangements ought be changed – Concern for adjustments and mixed family constellations – Presumption of equal shared parental responsibility rebutted – Orders for sole parental responsibility for the child/ren in each parties care – Specific order in relation to the names of the children and attending religious services

Family Law Act 1975 (Cth) ss 60CC, 65DAC, 65L

CDJ v VAJ (1998) 197 CLR 172
Cotton & Cotton (1983) FLC 91-330
Weiss & Arnold [2010] FamCA 270

APPLICANT:

Mr Valone

RESPONDENT:

Ms Sambrook

INDEPENDENT CHILDREN’S LAWYER:

Rhonda Sheehy & Associates

FILE NUMBER:

BRC

10212

2008

DATE DELIVERED:

11 May 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

7 May 2010

REPRESENTATION

APPLICANT:

Applicant appeared in person

RESPONDENT:

Respondent appeared in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Martin

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Rhonda Sheehy & Associates

Orders

IT IS ORDERED THAT

All previous parenting orders be hereby discharged.
The child T (“T”) born … July 2002 live with the father.
The children H (“H”) born … October 1998, N (“N”) born … September 2000 and D (“D”) born … June 2003 live with the mother.
(a) Each party shall sign all such documents and do all such things necessary to ensure that the children are each known by, and enrolled at all educational institutions and other such places where registration of their name is required, under the forename and surname that appear on their respective birth certificates.
(b)Either party shall be at liberty to have the children attend church services of their choice, in a religion of their choice, whilst the children are in their respective care.
Save as provided in paragraph four (4) of these orders, the father have sole parental responsibility for T in respect of “major long-term issues” as that expression is defined in the Family Law Act 1975 (“the Act”) and the mother have sole parental responsibility for H, N and D in respect of major long-term issues.
The mother spend time with the child T at all times as may be agreed between the parties in writing and failing agreement as follows:
a.Each alternate weekend from 5.00pm Friday until 5.00pm Sunday to commence on 14 May 2010;
b.For the first half of all school holiday periods in 2010 and each alternate year thereafter;
c.For the second half of all school holiday periods in 2011 and each alternate year thereafter.
The father spend time with the children H, N and D at all times as may be agreed between the parties in writing and failing agreement as follows:
a.Each alternate weekend from 5.00pm Friday until 5.00pm Sunday to commence on 21 May 2010;
b.For the second half of the school holiday periods in 2010 and each alternate year thereafter;
c.For the first half of all school holiday periods in 2011 and each alternate year thereafter.
The changeover for the purposes of orders 6 and 7 shall occur at S railway station and, in particular, at the fenced pick-up/drop-off zone with the parents not to come into contact or approach or communicate with each other.
The parties shall each do all such things, sign all such documents and each pay any charges or fees as are reasonably necessary so as to, in writing and by registered post:
a.Keep the other informed of each and all doctors, health professionals, educational institutions, counsellors, therapists and extra-curricular activities which the child in their respective care attends or undertakes as the case may be;
b.Immediately advise the other in the event that any child in their respective care sustains any serious injury or suffers any serious illness;
c.Authorise any person, treating doctor, health professional or institution or body referred to in the previous sub-paragraphs to provide to the other parent any and all such information in respect of the treatment of the children, medical or psychological, as the case may be, as the other parent might reasonably require;
d.Have the children’s school/s provide to the other parent a copy of the respective children’s report cards, together with any other written report issued by the school in respect of the children;
e.Authorise any school or educational institution, teacher, tutor or other educational professional to provide to the other parent any and all such information in respect of the progress of each respective child, including, but not limited to, their social, sporting and extra-curricular activities as the other parent might reasonably require.
The mother do all things necessary to ensure that the father can communicate with the children via facebook® and she be at liberty to select at random four such communications over a six month period to be provided to the Independent Children’s Lawyer for consideration of the suitability of their content.
The Independent Children’s Lawyer shall be discharged on 31 January 2011 or at the conclusion of one month subsequent to the provision by the mother of the fourth of the facebook® communications referred to in the previous paragraph of these orders, whichever be the earlier.

IT IS FURTHER ORDERED THAT

All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10212 of 2008

MR VALONE

Applicant

And

MS SAMBROOK

Respondent

REASONS FOR JUDGMENT

The parents in these proceedings have four children: H, born in October 1998, currently aged about 11 and a half; N, born in September 2000, currently aged about nine and a half; T, born in March 2002, aged about eight years and two months; and D, born in June 2003, aged almost seven.
The parties separated in 2004 and in December of that year, T came to live with his father. He was then a little over two and a half years old. On 12 September 2005 - that is, about nine months later - consent orders were made cementing the living arrangement that saw T living with his father and the other three children living with the mother. That remains the situation today.
The sibling group has, then, been separated for almost five years. There have been some periods during which the children have spent time together. That will be more fully set out in a moment.
Of the situation just described, Ms J, a single expert social worker, commissioned by the independent children’s lawyer, says (Report filed on 12.12.2005), as follows:
82. The actions of both parents since separation are indeed alarming. The father unilaterally took one child, because he believed that they should be sharing the children. He shows no understanding of the developmental impact of the removing [T] from his mother at the tender age of two years.
83. Although the mother was not happy about this at the time, and she seems to have attempted to use her own devices to recover the child once, she does not appear to have used legal recourse open to her. She has simply allowed it to happen.
84. The mother appears to be the one who has obstructed contact. By so doing, she has also cut herself off entirely from [T]. I am unable to shed any light on what has prompted her to abandon this child. On the face of it, she has accepted this as the cost of severing all connection with the father. She has no recognition of this being unhealthy for [H], [N], or [D]. On the contrary, she regards [Y’s] father as a sensible man, because he doesn’t interfere in [Y’s] life.
Aspects of the opinion just expressed by Ms J cause me some concern. The task confronting single experts in parenting cases is an extremely difficult one, made all the more so because, as the High Court pointed out in CDJ v VAJ (1998) 197 CLR 172, parenting cases are sometimes as much about values as they are about facts.
Nevertheless, it is, in my view, important for reporting experts to carefully distinguish between, on the one hand, reporting on matters of observation and commenting thereon within areas of their expertise and, on the other hand, making assessments with respect to veracity or facts in issue. They are matters for the court to determine. In that respect I would repeat in this context the statements made by me in a decision now known as Weiss & Arnold [2010] FamCA 270.
It might be hoped that the date of the report just quoted was a typographical error. It is not; these parties have been litigating for over four years. Ms J says in her most recent report, filed almost five years after her first report, as follows:
80. I have now seen this family five times in the past four years. The conflict between the parents has never abated.
81. Now, at least the children are seeing each of their parents, and the siblings are all together each weekend. The conflict has shifted on to accusations about each other’s treatment of the children.

The Parties Proposals and Intractable Conflict

The father asserts that the four children ought live with him. He said in oral evidence to the effect that, “If the children live with the mother, I will never see my kids.” This is a reference to an assertion by him that the mother’s willingness and capacity to avail the children who live with her of time with him is effectively non-existent.
In his affidavit filed 23 October 2009 the father deposed to his concern that the mother will not foster a relationship between the children in her care and him:
31. In response to [Ms J’s] family report of 19/08/2009, para (86), I contest that arrangements be left as they are because [the mother] has proven countless times in the court’s history that she cannot abide by consent orders and visit with [T] or allow me to visit with my other children.
There have been at least 17 applications or hearings in the Federal Magistrates and Family Law Courts concerning these family proceedings. This is information obtained by me and available from court records.
This same assertion that the mother has failed to facilitate time and communication between him and the children is stressed again in the father’s outline of case document. Whilst it needs to be appreciated that this is not a sworn document, I note both the provisions of Division 12A of the Act and the fact that the father represents himself and prepared his own material. The information contained in the summary of argument is entirely consistent with what he has deposed in his affidavit material and the tenor of his oral evidence when under cross-examination.
The outline records:
[The mother] has never indicated a desire at all for [the father] to have a close or continuing relationship with the children.
[The mother] has not shown an interest in pursuing her relationship with the child, [T], as evidenced in previous contravention orders and previous family reports made by [Ms J].
[The mother] has prevented all attempts by [the father] to communicate directly with the children, for example: messaging the children by Facebook over the past eight months.
The mother asserts that the father has been an obstacle to T spending time with her and that he has not availed himself of opportunities to see the other three children, who have been in her primary care. The mother’s position is that the father has not, and will not, foster a relationship between T and herself.
For example, in an affidavit filed by the mother on 7 December 2009, she deposes:
6. The children have also come back from visits stating that [the father] was going to bash certain people and asked them to pass it on. This is nothing more than using the children as messengers.
7. [the father] has demonstrated that there is no willingness and [he] has no ability to facility or encourage a close and continuing relationship between the children and myself.
All four children are very unsure of what is happening because of the father ... telling the children such things as they are all living with him next week. I have tried to ease this with them as [T] has been asking why he has to go back to his father’s because he wants to live with myself.
The distrust, conflict and polarised views of these two parents plague this matter. I am convinced that this will not change in the short or medium term future.
The ongoing conflict is a powerful underlying consideration in respect of the issues which unpin the ultimate orders that will be made in this case.
The central issues, and ultimate dilemma, facing this court is, perhaps, best summed up by tracing through the conclusions and recommendations of Ms J. It is repeated that Ms J has completed five reports, spanning, now, almost five years.
In her first report, completed at the end of 2005, Ms J said this:
86. I am at a loss to make a helpful suggestion here. I anticipate that the children will need to remain in the care of the parents who currently have care of them. Having said this, I am highly doubtful of the father’s ability to raise a child. The mother’s decision to cut herself off from one child as though he doesn’t exist casts serious concern over whether she can adequately raise children.
In the second report, filed on 30 November 2006, Ms J said:
52. When I first saw this family, none of the children had been spending time with their non-resident parent. There was absolutely no connection between the two households, and the siblings were not seeing one another.
53. Now almost a year has passed, and virtually nothing has changed. The father has refused to attend the contact centre, being opposed to it in principle. On the face of it, he appears not to be able to see that his principles have cost him a year in his children’s lives.
54. The mother states that she has been to virtually every scheduled visit and that she has been denied time with [T] because of the father’s attitude. She does not present as having any significant sense of loss or grief over her separation from [T], however, and it is possible that she appears more committed because of the father’s abstinence.
The third report, filed some 10 months later, on 13 September 2007, records Ms J saying:
60. The only significant contact that the children have had with one another and with their non-resident parent since separation took place for a couple of months in April/May this year. [i.e. 2007].
61. This resulted in the father offering for [T] to stay overnight with the mother when he had to go to hospital. She utilised this operating to retain [T] because of a skin condition, regardless of the fact that this matter was actively in front of the Family Court. [It might be added and despite the fact that she had had very little if any time with him in the period since separation.]
62. Visits had again broken down since [T’s] return to his father.
63. Nothing has changed.
64. None of the children have any significant bond with the non-resident parent. All of the children delight in being around one another. It is easy to see from their appearance that they are all brothers and seem to have an intuitive closeness.
In the fourth report filed on 21 August 2009, Ms J says:
79. [T] hardly knows his mother, and the others hardly know their father. They have seemingly learned to accommodate this, and they do not display any signs of yearning for their non-resident parent.
80. Likewise, the siblings have not seen each other. Their pleasure in being together was not as overt this time as on previous occasions. Perhaps this is also a factor of the passage of time. I anticipate that they would meld together well as a family unit, however, if they were to live together.
81. I have been asked to consider the possibility of all four living together with one or other parent.
...
86. Overall, I am more inclined to leave things as they are at present, rather than risk destabilising households further by uniting the children.
Finally, in Ms J’s most recent report, filed 20 April 2010, shortly prior to the final hearing of this matter, Ms J said, as I have already quoted, that little has changed in the now almost five years that she has been assessing this family.
I reiterate her opinion, which is entirely consistent with my assessment of the evidence, and the manner and tenor of conduct of the proceedings before me, that conflict between these two parents has not abated one iota. But, as Ms J says: “At least the children are seeing each other”, which I, too, consider a positive.
By way of further background, it is important in my view to underline that, for barely a few months at most in the post-separation period from about December 2004, the children spent some time with each parent and their siblings. From about early 2005 until orders were made by Bell J on 14 February 2007, the children saw their non-carer parent and their other siblings on only three or four occasions.
That is, at an important time in their developing lives, the children saw their non-carer parent and their other siblings only three or four times in about two years.
These orders made by Bell J in February, and orders made again by his Honour in September 2007, established a regime where the children were together each weekend. One weekend T spent time with the mother and his three siblings; the following weekend the three children spent time with T and their father. The children spent time with each other in accordance with these orders for, on the father’s evidence, no more than about six months. All such time seems to have ceased in October 2007.
It seems plain on the evidence that, thereafter, the children spent no time together until shortly after 7 August 2009, when orders were made by Jordan J, again establishing a regime that saw the children together every weekend. At that time, the children had, then, spent effectively no time at all together from about March 2008 until about August 2009: a period, it might be noted, of about 15 months.
As this short chronology will make clear, the current regime of weekend time that has apparently persisted since August 2009 represents the longest continuous period of co-parenting and time for the separated children with each parent (and all siblings being together) since 2004, albeit that the co-parenting opportunities of the “non-carer parent” has been limited to the weekend time provided for in those orders. Hence Ms J’s comment, “At least the children have had the opportunity to spend time together”.

The chronology of orders made in this matter, just referred to, also reveals that, since the orders of Bell J made on 18 September 2007, each parent has had, by order, sole parental responsibility for those children living in their predominant care. Despite this, the evidence reveals that there continue, to be disputes in relation to issues about decision-making for these children. The father complains that the children in the mother’s care are enrolled in the name “Sambrook”. It appears they have been baptised under this name as well.
The names recorded on the children’s birth certificates is “Sambrook-Valone”. The mother conceded in cross-examination that the children are enrolled at school as “Sambrook”. The mother purported to give a reason for this. I do not accept the explanation. There is no reason, it seems to me, why the children in the respective care of each of the parents should lose, as it were, their identity with the other parent. Their names, particularly given the extremely high conflict between the parents, are an overt symbol of the fact that they have two parents who seek to love and care for them and with whom they are connected, not only by birth, but by rights and obligations enshrined in the Act.
Accordingly, I will, irrespective of any other order in respect of parental responsibility, order that each party do all things necessary to ensure that the children are known by, and enrolled in schools and other activities by the forename and surname, that appears on their respective birth certificates.
There is also further conflict about a “major long-term issue” as that expression is defined in the Act. It seems that T may have been baptised in two different religions. In any event, there is certainly conflict between the parties about whether the children, H, N, and D, should attend the father’s church, namely the Church of Latter-Day Saints, when they are in their father’s care.
Notwithstanding orders previously made for sole parental responsibility, this issue has, it seems, continued to fester. I will make orders that will provide for the children to have liberty to attend whichever religion and/or religious services that either party may choose when they are in the respective care of that party.
Again, the reason for that is that these parties’ co-parenting relationship is already fractured on so many different levels and the care that the children receive from each of their parents so significantly bifurcated that it seems to me that they should experience what each parent has to offer in all its forms.

Father’s Proposal and Concerns

The father proposes that all four children live with him and that he have sole parental responsibility for them. In his initiating application filed on 19 November 2009 and the document filed by him entitled “orders sought”, filed on 30 April 2010, the father presents two alternative proposals for the time that the children spend with the mother. Broadly, they are that the mother’s time be supervised at a contact centre proximate to the children’s residence for such duration and at such times as the parties can agree, or, in the alternative, that the mother spend time with the children each alternate Saturday from 8 am to 4 pm.
However, it became abundantly clear throughout the hearing, and so too in the father’s oral submissions, that he contends that time between the children and the mother should be supervised. The father also proposes that the mother be at liberty to initiate phone communication with the children any day between 6.30 pm and 8 pm.
A central concern for the father is the risk posed by a friend of the mother, a Mr N. The exact role that this man plays in the mother’s life remains entirely unclear. The father asserts that he is or at least has been the mother’s partner and has lived with the mother and the three children in her care. The mother asserts that he is “just a friend” and will soon marry a woman known to the mother. Whatever role he plays, the father asserts that Mr N is violent and physically and verbally abusive to and in the hearing of the children.
The father suggests that an order is required to ensure that Mr N and his son do not come into contact with the children. The court is significantly disadvantaged, because Mr N is not a witness in these proceedings, despite the mother having been aware of allegations and assertions made in respect of him for some considerable period of time. The mother says that Mr N has no wish to become involved in these proceedings. Whilst it is perfectly understandable that third parties who are, by definition, strangers to matrimonial litigation should not wish to become involved in that litigation, it is nevertheless passing strange given the nature of the assertions and allegations made in respect of him, to me at least, that at no stage has the mother put forward any affidavit by him..
Nevertheless, the mother represents herself and did so in the lead-up to the final hearing and at the final hearing, and I take that into account in considering whether or not she ought to have made provision for him to be a deponent or otherwise secure his attendance at the hearing.

The Mother’s Proposal and Concerns

In her response document, filed 18 December 2009, the mother proposes that all four children live with her and that she have sole parental responsibility for them. The mother proposes that the father spend time with the children each alternate weekend from Friday, 5 pm until Sunday 3 pm. The mother also seeks an order that “the children not attend the Mormon church”.
Clearly, each of the parents’ proposals for time represent a drastic change for the child or children not currently residing with the parent who seeks their care.
The mother’s proposal represents a drastic change for T, who has lived primarily with the father since he was just over two years old. The mother provides no affidavit evidence setting out the considerations, plans, or proposals as to how she will work to ameliorate the effect of this change in living arrangements and attachments for T. Indeed, as will appear subsequently in these reasons, the mother does not appear to have any real concerns about any such change.
Equally, the father’s proposal represents a drastic change for H, N, and D. D, it ought be noted, was less than two years old when the parties separated. The father, appropriately in my view, acknowledged in cross-examination that in coping with the changes encapsulated in his proposal, that, “The biggest problem would be [D] – he does not know me.”
The independent children’s lawyer was ultimately, somewhat unfortunately, unable to be present a definitive position. It was submitted on her behalf that the options facing the court were: 1) maintaining the current situation that sees the children separated between the parents; or 2) if the court determines that, in the children’s best interests, they must reside together, then the father presents the best option as the primary “live with” parent.
The ICL’s submission in relation to the second situation was, it seems, founded on the father’s presenting as having the greater parental capacity as between the two parents to care for the four children and, perhaps, that he had exhibited greater appreciation of the parental responsibilities required of the parenting task.
The independent children’s lawyer also sought an order pursuant to section 65L of the Act in order to maintain a supervisory role in the lives of these parents as a means to ensure that both parents continue to have a role in the children’s lives, whatever role the court determines that ought be.
Generally speaking, in circumstances where an independent children’s lawyer considers that, consistent with their obligations and responsibilities, he or she is unable to recommend one particular course of action over another, it might well nevertheless be expected helpful if the independent children’s lawyer presented to the court a series of factual findings said to be open on the evidence, referenced to the statutory Considerations, Objects and Principles which would assist in guiding the court to one option or another. That task could and, in my respectful view should, be undertaken with reference to all proposals which the independent children’s lawyer says are open and available to the court in the children’s best interests.
I am not persuaded that an order ought be made pursuant to section 65L of the Act. That section avails the court of an opportunity to allow a family consultant to play a supervisory role in the children’s lives. It is, of course, an order that might be seen to commend itself in very many of the sorts of parenting cases that proceed to a final hearing in this court.
Leaving aside the issue of resources (but at the same time recognising the very significant impost on the limited resources available to the court dispute services in engaging in any such role) it seems to me that a s 65L order ought usually be made in circumstances where the evidence reveals some guarded optimism for the utility of the process in allowing parties to arrive at a better understanding of each other and their children’s needs and where, as a result, the potential for future agreed co-parenting arrangements might be significantly improved.
I do not consider that this case falls into such a category or, indeed, is ever likely to. As will already be clear, I am completely pessimistic about the capacity or willingness of either of the parties to disengage from a “tit for tat” process in which each blames the other for perceived parental wrongdoings and from an incapacity on the part of either of them to focus only on the children’s best interests to the exclusion of those sorts of arid conflicts.
Secondly, it seems to me that an order of the type just described has the significant potential in this case, where the evidence is plainly to the effect that within a period of five years there has been no abatement whatsoever in the nature or extent of the conflict between the parties, that such an order might in fact have the opposite effect to that purpose which it is directed; it may in fact exacerbate the conflict or provide other areas or opportunities for conflict to surface between these parties. I will not make an order pursuant to section 65L of the Act.

The Proposals in a Broader Context

The parties’ proposals each have a broader familial context. The father has remarried and established a blended family unit with his wife’s two children, K and M, aged respectively about 10 and seven. The evidence reveals to me that the father’s new relationship, together with, I am sure, other factors, has provided for him a measure of stability and direction in his life that, it seems from what he said in the witness box, even he would concede was absent before it.
It seems to me that a measure of significant stability attaches to this family unit, although, as he frankly conceded in evidence, that relationship, understandably enough, has had its stresses and strains by reason of the blended family created by he and his wife and also, without any doubt, the pendency of these proceedings and the broader conflict between he and the mother earlier referred to.
Ms J records in her August 2009 report that the father had the care of his nephew, B, then aged 11. At the time of the most recent report in April 2010 B had left the father’s care and was in foster care. Ms J records that the father suggested to her that he and his wife may make efforts to have B returned to their care. The father’s affidavit filed 23 October 2009 includes this:
[B] left our care ... on Thursday, 1 October 2009 ... as he is once again in foster care … our hope is Child Safety will return him to our care soon.
No further evidence about B was provided at the hearing, but it appears that the addition of another child to the father’s and T’s household remains a distinct possibility, or at least a hope on the part of the father, which, I can only assume is shared by his current wife. There is, then, the prospect of the children currently in the care of the mother being part of a blended family that consists of the father’s wife’s two children, the father’s nephew and T.
The mother’s evidence is that she and the three children in her care reside together, and she has not re-partnered. I consider that the evidence before me is not sufficient to make a finding that this is false and that she is now, or was in the past, in a domestic relationship with Mr N. I recognise the father’s concerns in that respect, and I accept that he has a belief to that effect, but the evidence, in my view, is insufficient to arrive at such a conclusion. While there is very little evidence about the mother’s eldest child, Y (from a previous relationship), it is assumed that this now 13 year old child resides with the mother.
Whatever role Y’s father plays in his life, it seems clear that he is not the primary caregiver. In the last respect, the mother admitted in the witness box that she had given a misleading account to Ms J about the role that Y’s father had played, or was now playing, in Y’s life. The precise position pertaining with respect to Y remains, at least to me, unclear on the evidence.
Central to the consideration of this matter, then, is the appreciation that the case concerns the four children of the parties but within broader family constellations of two step-siblings, one half-sibling and the potential inclusion of their cousin.
The complexities that this creates for potential parents, let alone four as yet young children, one of whom is bordering on adolescence, need hardly be stated. Those complexities are, of course, reflected in many of the Additional Considerations.

Parties’ Evidence and Veracity

Both parties in this matter represented themselves and prepared their own material for trial. I am acutely aware that this has the opportunity to create for them considerable difficulties. The provisions of Division XIIA of the Act (not to mention earlier decisions in the High Court of Australia and the Full Court of this court) place upon the court particular responsibilities in ensuring that the parties have an opportunity to have their case properly understood. I attempted to avail each of the parties, within the informal type atmosphere envisaged by Division XIIA, of the opportunity to do just that.
In his Atkin lecture in 2002 entitled “The Misnomer of Family Law” Mr Justice Wilson (UK) made the following observations.
... I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent, let us say for convenience a father. One sees him in action throughout the case, not just when produced by his advocate for his performance in the witness-box. One sees him when he is tired and under stress and whether he fails with good humour to cope with minor irritants such as the mislaying of a document. Furthermore one sees him cross-examine the mother. Although the problem must be more acute in prosecutions for sexual offences, family judges have to guard against the barbarity which sometimes infects the exercise. But, even if he is misusing the cross-examination in order to harass the mother, the father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside of court, for example whether hand-overs of the children between them would proceed sensibly, than to study their language, including of the body, towards each other in that unenviable situation.
I am mindful of the difficulties presented by self-representation for each of these parties, and I have sought to take that into account when assessing their evidence and their veracity. However, as Wilson J points out, and as in my view occurred in this case, the self-representation of parties affords to the court the opportunity to observe them, albeit in a limited and somewhat clinical setting, in a way that is not shrouded by legal representation.
Throughout her reports, and also in her oral evidence, Ms J assessed the father as having a “rigid and autocratic” personality and parenting style, providing little “leeway with the children”. My assessment of the father, based on my observations of him and a reading of the affidavit evidence, is that this is an accurate description. The father was, for example, prone to becoming defensive about perceived negative assessments made of his parenting, even when, ultimately, it was an assessment with which he agreed.
Ms J records the father as indicating to her that he was a “work in progress”. That is an expression convenient and accurate in its description, as it seems to me, which the father was prepared to embrace during the course of the proceedings. Ms J went on to say, however, that she was “impressed with the father and his new wife’s approach to counselling as a preventative measure”. The opinion was expressed in relation to the seeking by him of marriage counselling, but it seems to me that it can equally be applied to the father’s approach to counselling for concerns that he has about parenting of the children.
In circumstances where the father’s past history (admitted to by him) includes the abuse of marijuana and issues of violence and anger management, it seems to me that the father deserves nothing but praise for his attempts to address these aspects of his personality, and the impact that they may have on his parenting, in the manner that he has done. As I have said, a consideration of the material as a whole spanning this matter’s lengthy history makes it clear that the father has had significant issues in the past with the abuse of marijuana and anger management but has effected significant improvements.
In her first report Ms J records:
25. I gather that he has an extensive criminal history from his younger years, mostly surrounding assault charges and resisting arrest. He states that he has not been imprisoned, but he has been placed on good behaviour bonds and suspended sentence, etcetera. He says: “I was a violent teenager. I am not like that now.”
26. He has a history of amphetamine use, but he states he has not taken this since about 2001. He acknowledges a long-term heavy use of cannabis. He says that he has cut this back now to only $50 to $75 worth per week. He states that he uses it to help him cope, but he only does so at night after [T] has gone to bed. He seems to have a long history of talking about addressing his addiction, but he does not appear to have ever had the resolve to do so.
That opinion, it needs to be emphasised, was given in 2005. The father swears to a significant change in the matters forming the foundation of that opinion and including his use of marijuana. That approximately coincides with the commencement of the relationship with his wife. He says that, consistent with her attitude and their agreed position, and with the attitudes of the church of which he is now a member and his position within it, he doesn’t take any form of intoxicant or stimulant at all, even extending, for example, to tobacco and caffeine.
He gave that evidence in the witness box in seeking to emphasise the changes that have occurred in his behaviour since the first report prepared by Ms J that I have referred to. I accept his evidence in that respect. I also accept the father’s assertion that he has made significant “improvements in his life”. He points to having taken important steps towards acknowledging and improving upon his shortcomings as a parent and with respect to concerns that arise for his children.
I accept his evidence, and I accept that he has approached that task with sincerity and commitment. But, as Ms J (and indeed the father himself) point out, it is as yet early days. Ms J agreed with my positive assessment of the father “having a go” but expressed some hesitation, stating that his past history would indicate that his efforts to change far outweigh changes in real terms, at least as yet. Having said that, Ms J also acknowledged that his new relationship has been a very positive influence in his life and that his new wife is a “quieting influence” on the father, who “tries to help the father see how and where he needs to change”.

The Mother’s Evidence

The mother commenced her cross-examination of the report writer, Ms J, by challenging the assessment of Ms J that she “had no confidence in the mother”, given her concern that she was “less than frank”. The mother sought to elicit examples from Ms J that founded Ms J’s expressed concerns in that respect. The mother sought to challenge Ms J’s report where it was recorded that the mother informed Ms J that she was unaware of the court order requesting that Mr N and his son present for interviews and where Ms J had reported concerns as to the frankness of the mother in relation to her eldest child, Y, and whether that child had input from and the extent of the input from his father.
In the exchange that followed, it became clear (and the mother ultimately admitted) that she was in fact aware of the court order in relation to Mr N attending for interviews, that she had requested that he attend, and when she informed Ms J that she was unaware of the existence of the court order, she had knowingly told an untruth to Ms J.
Another example of the mother’s lack of frankness emerged in relation to the mother’s eldest child. Ms J had recorded throughout the reports that the mother reported Y had nothing to do with his father. It is instructive, I think, to quote from the transcript:
HIS HONOUR:   ... In the most recent report you told Ms [J] that a joint decision between you and the child’s father was that you didn’t want the child to participate in the case, okay?
MOTHER:   Yes.
HIS HONOUR:   Well, I don’t think that’s in dispute. Ms [J] reports that that is what you said.
MOTHER:   Yes.
HIS HONOUR: That is not what we are talking about. The question is Ms [J] says that over the course of four previous reports in almost four years, you told her or gave her the impression that your eldest son had nothing whatsoever to do with his father. Now, do you say she is wrong about that in terms of what you said to her?
MOTHER:   I may have given her that impression.
HIS HONOUR:   Well, it’s a false impression, isn’t it?
MOTHER: ... and I should not have done that.
HIS HONOUR:   What, you should not have told her lies, you mean?
MOTHER:   I just don’t want my son involved in this.
HIS HONOUR:   No, that is not the point. I keep coming back to this ... did you tell Ms [J] lies about the extent to which the father [that father] had been involved with the child?
MOTHER:   Yeah.
The mother, in challenging Ms J’s assessment of her as being less than frank, in fact confirmed that she had been and, in doing so, strengthened the concerns about her willingness to tailor answers and distort information as desired or as considered appropriate by her. Further concerns about the mother’s credibility and truthfulness were raised when counsel for the independent children’s lawyer cross-examined her in relation to the role of Mr N in her and the children’s lives. Ms Martin took the mother to a police report that included incidents of “wilful damage” involving Mr N and his son.
I should note that those police reports indicate Mr N and the mother as being “in a relationship”. It seems that documents such as this (produced pursuant to subpoena) have informed the opinion formed by the father about the nature of the relationship between Mr N and the mother. I am not persuaded that the evidence in that respect about that issue is compelling. Notes taken by police officers in the course of what might be described as a domestic incident involving damage to property may well in fact be unreliable in respect of their attendant detail and may, in this case involve an assumption. In the absence of cross-examination of the police officers I am not persuaded that I should give significant weight to a record of that type.
The compelling evidence that flowed from the cross-examination was the mother’s admission that she had lied to the police in relation to whether it was Mr N or his son who had caused the reported damage to her house and furniture. Again, it is instructive to quote from the transcript:
MS MARTIN:   The police records that have been subpoenaed talk about an incident that occurred on 8 July 2009, and they are quite explicit in that they came out, attended at your address, spoke to you, and you told them about the damage that both Mr [N] and his son had caused to your house.
MOTHER: Yeah, his son threw a rock, and it hit my front window.
HIS HONOUR:   The proposition that is being put to you, because you may not fully understand it, is that in the account that you gave to the police, you nominated both the child and [Mr N] as creating damage to your house. That’s right, isn’t it?
MS MARTIN:   Yes. That’s right.
HIS HONOUR:   What do you say to that proposition?
MOTHER:   No, I meant the son did it, but the father wanted me to say it was him so that the son didn’t get into trouble.
HIS HONOUR:   So you told a lie to the police, is that it?
MOTHER:   Mm.
Ms Martin cross-examined the mother about an incident when the children were not provided to the father for weekend time in late November 2007.   A letter from the school was produced pursuant to subpoena that recorded the mother and Mr N taking the children from the school prior to 3 pm “in order that Mr [Valone] could not see them”. Again, reference to the transcript is revealing:
MS MARTIN:   Irrespective of what you didn’t like about the school, [referring to concerns expressed by the mother about the school personnel’s handling of the changeover] the children were expecting to spend time with their father, and he was expecting to spend time with them.
MOTHER:   Exactly.
MS MARTIN:   But you did not leave the children at the school; you took them away.
MOTHER:   Yeah.
MS MARTIN:   And what did you expect the effect on the children would be by your doing that?
MOTHER:   I am not sure.
MS MARTIN:   Did you think about it?
MOTHER:   No.
I consider the mother a generally unreliable witness.

Best Interests – Underlying Issues and Findings

On the whole of the evidence before me, I consider that there is no conclusion available other than that these parents are incapable of putting aside their own issues so as to establish a functional co-parenting relationship.
The parental conflict – whoever is at “fault” – has hijacked the childhood of these four children. I consider that there is no prospect whatsoever of these parents being able to have any meaningful adult co-operation in order to discuss issues for these children as the Act envisages should take place.
I am convinced that the parents are each focused on apportioning blame or “fault” for missed time between them and the respective children. This has resulted in fractured relationships and, indeed, a bifurcation of the relationship between each parent and the child or children who have not been in their primary care. The conflict has been detrimental of the children, and I consider that it has been to the detriment of the capacity of either of these parties to be able to fix the situation either currently or in the immediate future.
It is highly likely that any interactions between the parents in the future that deviate from each parties’ consideration of what should happen or which they consider to be the “right thing” will lead to further blaming and counter-blaming rather than attempts to ensure, through a cooperative process, that the particular situation will not occur again.
Each parent presents in my view with past impairments and deficiencies in their capacity to parent these children.
I consider that the mother is all too willing to blame the father, it seems, for what in fact are deficiencies in her parenting which have manifested in the children having significant problems at school, including in H’s case, the need to change schools as a result of violent behaviour perpetrated by him toward other children. When questioned by me, the mother seemed unprepared to accept the slightest responsibility for that situation, instead choosing to blame the father in what I took to be some sort of attribution of his contribution to the gene pool for that event. The fact that these children had been, from a very early age, in her primary care did not seem to factor at all into her perception of the causes of their current situation.
I consider that the mother has little interest in maintaining, much less facilitating and encouraging, a relationship between the father and the children.
The father has made significant and highly commendable steps in improving his approach to parenting and how he handles issues. Nevertheless, whilst he commendably seeks to do something about the present and the future, he cannot thereby absolve himself from the issues that have clearly impacted significantly on past parenting. In my view, his past parenting of the children in general, and T in particular, have been affected by the issues in his life which he is now seeking to address.
As the father himself readily acknowledges, he is a “work in progress” as a parent. As I said during the course of the hearing, all parents are, in fact, works in progress as far as the parenting of their children is concerned. All parents, irrespective of who they are, can only seek to do their best. The issue which is germane is the extent to which they are able to put aside adult considerations in the best interests of their children and their willingness to seek to gain insight into their children’s needs which need to be predominated ahead of their own.
I consider that the father does still display significant aspects of an autocratic personality, particularly in his disciplining of the children, although I suspect that the work that he has done recently has enabled him to consider other and probably “better” means of managing children’s behaviours. In any event, parental style is marked as much by personality issues as anything else. By reason of the father’s upbringing and the issues necessary to be addressed by him in the way he was parented, he has about him an autocratic style which is, probably, part of his personality.
On the other hand, the mother is assessed by Ms J as displaying a somewhat lackadaisical or disinterested style of parenting that manifests itself in significant deficiencies in the attribution of boundaries in and about the children’s behaviours. I agree with the assessment.
Whilst this, too, can be the subject of education and improvement, that requires the relevant parent to seek out, and apply in a meaningful and sincere way, those changes. All of the evidence suggests to me that the mother does not consider that there are any changes to make in that respect.

Meaningful Relationship

Over 20 years before the concept of “meaningful relationship” found its way into the statutory considerations, Nygh J, said this:
... It was at one stage the view that a parent had a right of access to their children of which that parent could only be deprived in extraordinary circumstances. That, of course, was language which suggested that a parent had a property interest in a child ... That language was abandoned well before the present Act came into force and judges started to speak of the right of children to access to parent ... The test which must apply in proceedings involving children is that of the welfare of the child being the paramount consideration which is, in my view, the one and only principle to be applied. It means that in each case the court must make an independent investigation of what the welfare of the child requires and a court is not very much assisted by a recourse to general principles other than that principle. It is true that we can fall back on generally accepted experiences and perceptions in so doing as a guide but care should be taken not to elevate any of these generally accepted perceptions and presumptions which can only be displaced by evidence to the contrary. One of these generally accepted perceptions, as I see it, is that it is desirable for a child to maintain a meaningful relation with each of his or her parents. It is obviously desirable when the parents are living together in a united household, but it becomes even more desirable when the parents are separated ... However, that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. Nor is it necessary, as it must be obvious from the way I have expressed myself, that access should only be denied if it is established that a parent is likely to do positive harm to the child. It is the emotional relationship which counts and not the inherent harmfulness of the parent as such. Thus, I can well imagine that in certain circumstances a woman who leads a totally immoral life, such as a prostitute, may have something to offer her children. On the other hand, it may be that a person who leads a life which, to the general observer, is one of a pillar of rectitude has nothing to offer his children ... (Cotton & Cotton (1983) FLC 91-330 at 78,252).
In this fractured family where the care of children within it has been bifurcated between their two parents over a long period of time, it seems to me plain that I should conclude that T’s primary attachment is with his father and the other three children’s primary attachment is with their mother.
Each parent has in respect of those children who have been in their respective care, been primarily responsible for their upbringing and care, and there has been little interaction, as the chronology earlier outlined plainly indicates, of the “other parent” in the lives of the child or children who have not been in their full-time care.
The children have a right to know each parent, to receive input from each parent, and, ideally, to be nurtured or, more accurately, co-nurtured by each of their separated parents in a co-operative, child-focused and intelligent way. As will be clear from what I have already said that has not occurred in this case.
Nevertheless, it seems to me that the right that the children have to know each of their parents (and ultimately, like all children must, to form their own intelligent and informed views of each of their parents with all of their respective strengths and weaknesses) is not diminished by the nature of the care that they have thus far received.
I should give predominance to the statutory right enshrined in the Act for children to have that knowledge and that involvement. The children also have a right to know and to seek to develop a relationship with their siblings so that again, at a time when they are sufficiently mature and able to do so, they should receive the comfort and support that a relationship with their siblings should, in the future, bring. It seems to me, then, extremely important that the children should have the opportunity to know each other and to seek to develop that relationship.
As will, I think, be plain from what I have already said, I consider that the additional consideration that might be broadly summarised as “the likely effect of change” is of profound importance in this case and is extremely significant in arriving at a determination which, although it may be far from ideal, is nevertheless considered to be in the children’s best interests. As I have attempted to make clear, the competing proposals of the parties present very significant changes for these children.
It seems to me that the extent of the change presented for T, if he is to live with his mother, cannot be overestimated. He was just over two when he came into the primary care of his father. Although still young, he has recently had to accommodate a significant change in his living arrangements in that he now lives with his new stepmother and two step-siblings. That, of itself, is a very significant change in the life of a young child.
The proposal of the mother would see T having to adjust to being one of four children in an entirely different household without the presence of the father, in circumstances where it is absolutely plain, whichever might be “right” or “wrong” would involve very different parental attitudes, including attitudes to the setting of boundaries and discipline. The evidence of Ms J and the school reports provided in affidavit evidence by the father and produced pursuant to subpoena reveal that T is settling into school well and they evidence little or no concerns about his behaviours at school and his social interactions.
On the other hand, the picture in respect of H, N and D is of significant concern. The parents appear to accept in evidence, and the school reports reveal, that H has had to change schools due to significant behavioural issues. While the mother deposes to him improving and being happy at his current school, a letter dated 16 February 2009 sets out that H has been in trouble for kicking fellow students (both boys and girls). Those same reports from schools from which valuable information can be gleaned about the children’s social interactions and likely future development express real concerns about social isolation or relative social isolation exhibited by H.
Ms J expressed in oral evidence the polarised approaches to parenting displayed by these parents. As I have indicated, she describes the father’s approach as being somewhat rigid, autocratic, and firm, particularly in the application of boundaries, to the point of inflexibility. The mother is assessed to have no firm boundaries and to have a “lackadaisical” approach to the implementation of discipline toward the children. I accept these descriptions as accurate; they accord with my observations and reading of the evidence.
Ms J observed, from behaviour exhibited during the course of her interviews, that, while the mother can “round the children up”, other disciplinary boundaries are far less clear.
The impact of the change in familial environment for these children - all of these children - on either proposal is immense.
Yet the mother stated that she felt the only concern for T in coming to live with her was “jealousy with [D]”. This statement was elaborated to mean competition for the mother’s attention and sibling rivalry given their closeness in age.
In my view, this drastically minimises the likely impact on T of moving from his only known primary carer. Ms J expressed her concerns for H, in particular in moving to the father’s household. He is approaching adolescence. It is highly likely that there would be “serious collisions” between H and his father over rules/behaviours and limit setting. The father doesn’t seem to me to deny the firmness or rigidity of his approach, albeit it that, he clothes it in it being in his view of loving discipline. The potential for significant future conflict for H as he approaches adolescence and confronts the sort of rigidity to which I have made reference is, in my view, self evident.
Ms J raised a serious concern that, if the three children currently in the care of the mother were placed with the father, they would, as it were, run back to their mother. I agree that is a strong possibility.
The father, as it seems to me, effectively conceded as much when I asked him that question in the witness box. He concedes, quite properly as it seems to me, that there are likely to be significant issues involved in the children adapting to the differences in style of parenting perpetrated by him and his wife and that one of the possibilities attendant upon that is that the children would, in fact, as it were, run back to their mother’s care.

He is optimistic that with an appropriate approach bolstered by commitment on his part and the part of his new wife and the assistance of appropriate counselling or rather expert intervention, that these difficulties could be overcome and that behaviour prevented. I do not share his optimism.
Moving the three children to the father would see a change in schools. The mother highlighted concerns for D’s support system/teachers at school. By reference to identified educational difficulties that D is having, the father addressed this concern by stating that D would receive the same, or likely better, support at the school which T attends. The issue, though, is not the merits or demerits of one school over another but rather the effect of change itself upon a child with, it seems, significant educational/developmental needs. Change in those circumstances is, in my view, contraindicated.
The father presented in the witness box as having spent some time considering the steps that he and his new wife can, and I find would, take to ease any transition to his care. He mentioned seeking counselling through an indigenous health centre, expanding the role of T’s current counsellor at the Royal Brisbane Hospital to also seeing the other children as needed and finding the Triple P program applicable for children of their ages.
While I consider that the father has given great thought to the issue, he, too, in my view, tends to downplay the level of adjustment that would be needed for the three children if they were to come into his predominant care. In short, it is, in his case, the triumph of loving hope over expectation.
All of these children are still quite young, ranging in age from about 12 to not yet seven. Even in ideal situations I would approach the views of children of these ages with considerable circumspection. However, here, given both the highly fractured relationships earlier referred to and the highly polarised views of each of their parents and the completely different parenting styles evident from each of them, I am particularly circumspect about attaching any weight whatsoever to views said to have been proffered by any of the children.
I consider that in the circumstances of this case, it is extremely likely that these children would be likely to say whatever they thought might gain for them the best immediate advantage or which might reflect their current and immediate feelings about which parent might present the outcome that best suited their immediate needs.
These children have hardly experienced life with their “other parent” or indeed, on a day-to-day basis, with their siblings. Views expressed either for or against spending time with the other parent, in my view must, be recognised as so tainted by their limited experience of the other parent as to have very little weight.
Having said that, I should not be understood as suggesting that the children do not want to spend time with their other parent or, as importantly, and perhaps more importantly, with their siblings. I consider that they do seek a relationship with their siblings, and they do seek to know and receive care from the other parent.
The real issue in this case is, to what extent and how might the reality of achieving such a situation for these children be brought about.
The nature of the relationship between each of the children and their parents, their siblings and “significant others” will already be evident from that which is contained in the earlier parts of these reasons. In addition, the father’s acknowledgement that D “does not know him” compellingly sums up in a broad way the situation of all of these children’s relationships with their “other” parent. The chronology of the five years or more since separation reveals that this family, in the way in which it has subsequently been structured, has spent considerably more time living entirely separate lives than being together.
In respect of the attitude to the children and the responsibilities of parenthood, I have already made reference in an earlier quotation from Ms J’s report to comments by her that might suggest that the mother has willingly “abandoned” T to get the father out of her life. I also earlier made comments about the appropriateness of single experts making judgments about what are in essence factual matters.
I accept that, at the time of separation, the father was a very different man, even on his own admission, than the one who presents at the final hearing of this case. He is a man with, to use the vernacular, “a short fuse” and who had a significant history of difficulties in anger management and offences of violence. I consider that these are extremely important contextual matters in the circumstances that attended the post-separation arrangements between these parents. I accept, for example, that the mother at that time had significant fears for herself and the children and that the father would have presented at that time as a confronting and hostile person.
I am not prepared to find that there is any moral culpability in what the mother did in permitting T to remain with his father while the other three children stayed with her.
In a similar vein, I am not, for similar reasons, prepared to attach weight in the same manner that Ms J would appear to have done to the fact that the mother has not availed herself of “legal recourse” in respect of that situation. A number of matters attend the decisions that people make post separation. People have the capacities or the incapacity to avail themselves of that sort of recourse to one degree or another.
It is simply a fact that this family, and the care of these children has, as I have said on more than one occasion, been bifurcated. That’s the reality of what needs to be dealt with at the present time, for better or for worse.
For the most part I consider it, in terms of the overall benefit or detriment to these children, to have been for the worse, but revisiting the circumstances in which this now long-standing situation started or has been permitted to continue, with all its attendant issues and problems, in my view serves no meaningful purpose in arriving at orders that meet the best interests of these children.
Further, in respect of the responsibilities of parenthood, I am satisfied that each party has in the past engaged in a certain degree of “tit for tat” behaviour that might be summarised by saying, for example, “you did not provide the children for time with me so I won’t provide them for time with you either”. The net result for these children of that sort of behaviour has been that they have gone for significant periods of time in not seeing not only their other parent but, as importantly, their siblings. That sort of behaviour or attitude has clouded better decisions which each could have made had they properly predominated the responsibilities of parenthood during that past time.
I am conscious of the fact that the father has Aboriginal heritage. I am conscious of what the Act says about the importance of cultural issues to Aboriginal people. The father alluded to this in the witness box in saying that he would, understandably enough, want all of his children to be aware of their Aboriginality and what that means for them in cultural terms.
I accept that, and I accept that it is an important matter and is an important matter for the father. As a statutory Consideration, however, it seems to me to pale against the significant importance of the other matters which I have identified by reference to the statutory Considerations, Objects, and Principles otherwise detailed in these reasons.
In respect of family violence, I am, too, acutely aware of the importance given to that issue within the context of the Act generally and section 60CC specifically.
I have already referred to the fact, in a number of different ways, that the father has an acknowledged violent past and significant anger management issues. Again, though, in the context of the reality facing the children at the moment, the evidence reveals that violence is not, of itself, an issue with respect to the mooted future care for which either party contends, nor does it loom large as a consideration by which orders expressed in terms of time are fashioned to represent findings with respect to best interests.
This, then, is a sad case in which I can only hope that the parties will somehow, somewhere, and in some way find it within themselves to address whatever issues might pertain to themselves individually and their co-parenting relationship together to bring about a situation which research in every country in the world reveals is the only real hope for children when their parents are separated and in conflict; that is that the parents put aside their adult issues and do their very best to consult, confer, and agree about matters in the best interests of their children.
One day these children will be adults, and one day they will, like all children do, make their own decisions about each of their parents based on their own perceptions of their parents, not on the perceptions that the parents seek to infiltrate in them. I have real concerns, as will be obvious from the reasons I have given, about the current issues affecting each of the households in this case. Moreover, it is, in my view, generally speaking, an unusual case where a court is persuaded that separating siblings is in their best interests.
There are many reasons for that, not the least of which is that when parents are in high conflict, as they are here, children provide for each other in their sibling relationship protection against the conflict not only in the present time but in the future. The fostering of a strong sibling relationship provides an opportunity for children, as they grow and develop, to have that which their parents were unable to provide for them, and that is a supportive, cooperative, thoughtful, caring relationship which provides a cocoon against the difficulties that the world throws upon them as they develop.
In this case, however, I am ultimately not persuaded that I should change the current arrangements. To do so, in my view, places each of the children, or each of the “groupings” of the children in too difficult a position in terms of their adjustments and the opportunities that might each be afforded to each of them.

Parental Responsibility

By reason of the fact that the court is intending to make parenting orders with respect to the children, the court is instructed to apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.
That presumption can be rebutted if there is evidence which satisfies the court it would not be in the best interests of the children for the children’s parents to have equal shared parental responsibility for the child.
The legislation makes it very clear that parental responsibility is not a passive activity. For example, section 65DAC of the Act provides that if two or more persons are to share parental responsibility for a child and a decision about major long-term issues is required, the decision is to be made jointly by those persons. Furthermore, the Act prescribes that, in arriving at the joint decision, the parties are required to consult with each other about that decision.
As will be clear from what I have earlier said, the nature of the relationship between these parties is such that they have no capacity, in my view, to engage in the form of cooperation and decision-making contemplated by the Act if they were to have equal shared parental responsibility with respect to the children.
Indeed, issues have already arisen between them with respect to at least some major long-term issues, notwithstanding the fact that interim orders for sole parental responsibility have earlier been made.
Those orders for sole parental responsibility have now been in place for some years, albeit on an interim basis, and those orders of themselves reflect the bifurcated nature of the parenting given by the respective caring parents to the child or children in their respective care.
It seems to me that the presumption of equal shared parental responsibility ought be rebutted in this case, a reference to the best interests of these children, and it is for that reason that I make orders according sole responsibility to the respective parents in the manner that I have in these orders.
I order accordingly.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 1 June 2010

[2010] FamCA 428

11 May 2010

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