VINE & VINE

[2015] FCCA 1746

FEDERAL CIRCUIT COURT OF AUSTRALIA

VINE & VINE [2015] FCCA 1746

Catchwords:
FAMILY LAW – Interim arrangements for care of children aged 9, 6 & 5 – oldest child has special needs – parties separated in 2012 – following separation parties agreed on a shared care regime – arrangement has broken down – oldest child has refused to spend time with mother following incident at her home – mother asserts father is undermining her relationship with child – father asserts he is respecting child’s views – relevance of untested family report – nature of interim hearing – presumption of equal shared parental responsibility – best interests – practicability.

Legislation:  

Family Law Act1975 (Cth), ss.60B, 60CC, 61DA; 65DAA

MRR v GR [2010] HCA 4

Applicant: MS VINE

Respondent: MR VINE

File Number: ADC 638 of 2013

Judgment of: Judge Brown

Hearing date: 10 March 2015

Date of Last Submission: 10 March 2015

Delivered at: Adelaide

Delivered on: 10 March 2015

REPRESENTATION

Counsel for the Applicant: Ms Cocks

Solicitors for the Applicant: Nelson & Co

Counsel for the Respondent: Ms Lewis

Solicitors for the Respondent: Barnes Brinsley Shaw Lawyers

ORDERS

1. The parties jointly instruct Ms R to prepare an up-dated family assessment report, as soon as is reasonably practicable, but prior to 10 August 2015, when the applicant is scheduled to file affidavit material in respect of the trial scheduled for 7 September 2015.

2. The costs of such assessment and the report arising from such assessment to be borne by the father in the first instance with any adjustment of same adjourned to the trial.

3. Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children X born (omitted) 2006, Y born (omitted) 2008 and Z born (omitted) 2009 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

4. Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

UNTIL FURTHER OR OTHER ORDER:

1. Order 2 of the orders made on 13 May 2013 be varied so that the children Y and Z continue to live with their father and mother on a week about basis, but the children be exchanged between the parties, whenever possible at their school on each Monday.

2. Order 2 of the orders made on 13 May 2013 be varied so that the child X lives with his mother, in the week that the children Y and Z are in the father’s care from after school on Thursday until the commencement of school the following Friday and in the week when the children Y and Z are scheduled to be in her care from after school on Friday until the commencement of school the following Monday.

3. The parties and the child X continue to attend upon Ms S for family therapy and co-parenting mediation.

4. The solicitors for the mother provide Ms S with a copy of these orders and request she explain the import of the orders to X at the consultation arranged for 11:00am on 11 March 2015.

5. Further consideration of the matter is adjourned to 5 May 2015 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

ADC 638 of 2013

MS VINE

Applicant

And

MR VINE

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment are being delivered orally.  The interim hearing, to which they relate, concluded late on last Friday afternoon prior to a long weekend.  Due to the inherent complexity in the matter, I wished some time to consider what should occur.  Due to the lateness of the hour, it was not possible for that to occur on the Friday of the interim hearing. 

2. In addition, there has been insufficient time to have the reasons typed.  As a consequence, they must be delivered orally.  Necessarily, that will take some time to do.  I apologise in advance for the burden, which listening to these orally delivered reasons will impose upon each of the parties and their counsel.

3. X was born on (omitted) 2006.  He is a child with special needs.  He suffers from Asperger’s syndrome.  As a consequence, his behaviour from time to time can be challenging.

4. X’s parents are his father, Mr Vine, and his mother, Ms Vine.  Besides X, they have two other children.  They are Y, born (omitted) 2008, and Z, born (omitted) 2009. 

5. The parties married on (omitted) 2002.  They finally separated on 16 February 2012.  They are now divorced.  Post-separation their relationship has been strained.  Proceedings began in March 2013 when they were in dispute as to which primary school X should attend. 

6. Notwithstanding significant differences in their personal and parenting orientation; significant deficits in how they communicate with one another; and some logistical difficulties; on 13 May 2013, the parties agreed to have equal shared parental responsibility for their children and for the children to live week-about with each of them.

7. The mother asserts that she agreed to this arrangement against her better judgment because she was bullied into it by the father.  She categorises Mr Vine as a controlling person who harasses her if he does not get his own way. 

8. On the other hand, Mr Vine believes all three children have thrived in the shared care regime.  He blames the mother for the parties’ poor communication, asserting she will not answer proper questions put to her about the children.

9. A consent order was made on 13 May 2013.  It is a lengthy document, which was professionally prepared.  The orders made on that day soon broke down over an issue concerning the children having a holiday in Queensland with their father. 

10. At this stage, from the mother’s perspective, the equal time regime was not working.  On 10 April 2014 she applied to the Court to have the earlier order set aside and for the three children to live predominantly with her.  Since that time each party has filed voluminous affidavits, which literally speak volumes as to the dysfunctional nature of their parenting relationship.

11. At the stage of her application in April 2014, the mother wished for a suitably qualified expert to assess the family and provide a report, both for the parents and the Court, as to the best arrangements for X, Y and Z.  She favoured the psychologist, Ms R, who has expertise in the area of conditions which fall on the autism spectrum.  In this context, it should be noted that Z from an early age was diagnosed with mild autism.

12. The father resisted the appointment of Ms R, chiefly on economic grounds.  On that basis, Ms Vine agreed to pay for the report initially.  In this context on 10 June 2014 the Court ordered Ms R to prepare a family assessment report and the case was adjourned until early December 2014.

13. It is necessary, before turning to Ms R’s report in more detail and what happened afterwards, to explain something of the parties’ personal circumstances.  Mr Vine is a (occupation omitted), employed by (employer omitted).  He now also lives at (omitted), although previously he lived in (omitted) with his partner, Ms K.

14. The two older children attend (omitted) Primary School, which is in (omitted).  Z is in transition at the school.  Until March 2014, the mother also lived in (omitted) close by.  The father’s previous residence was also close to the school. 

15. The mother has now moved to (omitted), on the rural outskirts to the (omitted) of Adelaide, and so some distance away from (omitted) School.  She too has re-partnered.  Her partner is Mr S.

16. It is my impression that the advent of new partners has added to rather than lessened tensions and communication difficulties between the parties.  The father’s partner, Ms K, has four children of her own who are aged between 11 (twins) and 15, who live with her one week per fortnight. 

17. So the three children concerned have also had to adapt to the father’s and Ms K’s blended family, as well as issues to do with the mother’s moving to (omitted), which has made it more time consuming for the children to get to the school. 

18. In that context, it seems that the fact that now each party lives some distance away from the children’s school, particularly the mother, has added to logistical difficulties in the parties’ co-parenting relationship.

19. Ms R’s report was lengthy and considered.  Regrettably, it did not assist the parties to reach agreement.  Rather, if anything, it seems to have polarised their respective positions.  Now each parent asserts that he or she should have the majority care of the children and the other should spend defined periods of time with them. 

20. As a consequence of these disputes, the parties’ competing applications have been fixed for final hearing at the earliest opportunity available to me, which was between 7 and 10 September 2015, now approximately six months away.

21. Against this background a crisis has developed in respect of X, about which the parties have very different views and which they cannot resolve consensually.  As such, the Court must step in and put in place orders to regulate X’s care until the more thorough and intensive hearing, which will occur in September unless the parties agree otherwise.

22. The father commenced the current interim proceedings on 16 February 2015.  X is in his care and has been since 14 February, when the mother delivered the child to the father following an outburst in the mother’s home.  The parties disagree about why this outburst occurred and how do deal with it now. 

23. The father asserts that X is angry with his mother for legitimate reasons and his preference, which the Court should respect, is to live with his father.  As such, Mr Vine argues that it is likely to be counter-productive to force X to spend anything other than modest periods of time with his mother at present.

24. At this stage, while X is so worked up, Mr Vine proposes that X should spend overnight on Thursdays with his mother, whilst Z and Y are with him, so that the mother and X can have one-on-one time together.  This overnight visit would occur once a fortnight or perhaps each week, if the court deemed it appropriate. 

25. After a month, Mr Vine proposes that this should build up to overnight with the two younger boys and some individual time in the other week.  Over time again this should be extended, but X should live more with his father than with his mother. 

26. Given the issues in the case, it is Mr Vine’s position that all three children need to be independently represented in the case and notwithstanding his initial disapprobation of Ms R, that she should revisit the family and update her report.

27. The mother believes that the father is either actively or passively encouraged X to be oppositional to her and has enmeshed the child in the long-seated adult issues, which prevail in the case.  Some of the issues relating to the adults arise because of bitterness and recriminations about the expense of these legal proceedings and perhaps earlier issues between the parties. 

28. The mother believes that Mr Vine talks to X about the court case and given his autism, X cannot properly understand what he is being told and is likely to misinterpret it.  In this context, she fears that the father is intent on alienating X from her and once he has driven a wedge between her and X that he will attempt the same thing with Y and Z.

29. Needless to say, given this brief summary, it is clear that these proceedings have been bitterly contested and that there is no goodwill whatsoever at present between the parties.  In fact the parties mistrust one another and doubt their motivation in the case.

30. However, Ms Vine supports the appointment of an independent children’s lawyer for the three children and that Ms R should revisit the family and update her report, but given that she paid for the first report it is her view that it is only fair that the father should pay for the second, it being her case that both parties are likely to be under significant financial stress at present.

31. At this juncture, the mother does not seek the resumption of the week-about arrangement for X but proposes that in the week Z and Y are in her care that X should be with her from Thursday after school until the following Monday so that he can then interact with both his siblings and her, and in the other week that X should be in her care from Thursday after school until the following Friday morning so that she can have some one-on-one time with X.  At this stage this is the parameter of the issues to be resolved by the Court.

32. Before turning to the recent events in more detail, it is necessary to detail more thoroughly some of Ms R’s conclusions.  From Ms Vine’s perspective, Mr Vine has used Ms R’s report as a pretext to manipulate X and bring about the current crisis. 

33. Ms R’s report is a lengthy one of some twenty-five pages.  She was able to interview each of the parties at length, as well as each of the three children, and observe the children with each of their parents.  In addition, she spoke to each of the parties’ partners and spoke to teachers and carers, who are involved with the children at present.

34. Ms R said that X reported to her that he lived one week with each of his parents, but would prefer to live two weeks at his father’s home and one week at his mother’s home because his mother was bossy, yells a lot, and he was often in trouble. 

35. He said that his father was strict and made him do things but did not yell as much as his mother and he was not so often in trouble.  X said he would feel sad and angry if he had to live for more time with his mother and had told his father he wanted to live with him more. 

36. In terms of how X perceived the relationship between his parents he said, tellingly, that his parents got on badly because they fought every time they talked.  X said he heard this during phone calls.

37. Ms R spoke to X’s teacher.  The teacher said that X engaged positively in the classroom and was seen to be developing friendships and also skills to resolve conflict.  There was no issue about X’s attendance at school and from the teacher’s impression he perceived that both the mother and father provided adequate parenting to X and ensured that his daily physical needs were met. 

38. Y reported that he lived in a shared care arrangement and said he liked this arrangement as he missed both his parents.  In terms of his relationship with X, he complained that X hit, slapped and kicked him, and he considered that the two did not get on well.

39. The youngest child, Z, does not seem to have been interviewed in such depth as the two older boys.  However, Ms R administered a test called The Family Relations Test.  As a result of that, Ms R noted that Z assigned dependency items in equal numbers to both his parents. 

40. That clearly indicates that Z has a close relationship with both his mother and his father.  Nothing unusual was observed by Ms R in any of the children’s observations with either of their parents, or indeed with their partners.

41. In interview with Ms R, Ms Vine indicated that she believed that X was privy to adult information, which had resulted in him siding with his father, whom he idolised.  As is her position in these proceedings, the mother reported to Ms R her view that the current week-about arrangement was not working due to poor communication between the parties and different routines for the children in each household. 

42. Ms Vine reiterated her opinion that the week-about arrangement had resulted from her being harassed by the father for more time with the children and because of threats that a previously agreed property settlement would be reopened. 

43. Ms Vine said that she found it difficult to talk with Mr Vine because he spoke over her and when they did communicate they were liable to argue.  The mother reported that she perceived that she had a difficult relationship, not only with the father, but also with Ms K.

44. To Ms R, the father indicated his opinion that the current care arrangement for the three children was working well.  He considered that X’s behaviour had improved over the past year, although there had been some upset in March of 2014, when the mother had moved her household and this had caused X some stress. 

45. It was also Mr Vine’s view that X had matured and he was less stressed and anxious than he had been and was therefore more responsive to direction.  It was the father’s view that X’s self-esteem had increased and Mr Vine thought that X had a sense of belonging to his family.

46. Mr Vine raised concerns about greater levels of impracticality, which had arisen since both parties had moved further apart from one another and away from the children’s school and grandparents.  Initially when the parties separated they had each lived close to the other’s home, the boys’ school, and grandparents. 

47. It was the father’s perspective that the mother remained focused on what had happened in the past and had not moved on from separation issues.  He said he was not interested in blaming anybody for anything but rather wanted to move on.  In this context, I think it is important to note that the father said to Ms R that Ms Vine was a good and caring mother.

48. In her assessment of the family, Ms R opined that all three boys impressed as sharing a meaningful relationship with each of their parents, which was to their benefit.  From her observations of the children and from information she had got from the children’s school and kindergarten, the children’s needs were being met appropriately by each of their parents.  This was notwithstanding significant differences in the parties’ personalities, management and parenting styles.

49. In terms of X’s views, Ms R reported that he had a preference to live primarily with his father.  I have already alluded to the reasons why X apparently expressed this preference.  Ms R also noted that it was the impression of X’s teachers and certainly Mr Vine that X was managing the issues in his life well and was becoming more mature and confident.  There were no concerns noted about how X interacted with his teachers and his fellow students.

50. However, that is not to say that Ms R thought that the family was not without its challenges.  She noted that, whilst both parents love and want the best for their three children, their relationship was manifest by poor communication and an inability to share information across the two households. 

51. Ms R thought that this had the potential to present great difficulties for the children, more so when the children concerned had issues pertaining to rigidity in their thought processes, which had been evidenced particularly by X and quite possibly by Z in the future.

52. Ms R, and I think this is significant, advised both parents to adopt what she described as an authoritative parenting style.  What she meant by this was that the parties should impose clear boundaries on the children and give them choices, with logical consequences, if they behaved inappropriately. 

53. Ms R thought that X was likely to react negatively to a requirement that he live primarily with his mother, given his strongly held preference to live for the majority of time with his father.  At the time of her report, X was only eight years of age but Ms R thought that his wishes required consideration, as he was likely to become emotionally distressed, if he perceived that his wishes were thwarted.

54. Accordingly, the case provided a dilemma for Ms R.  She considered that she would not have recommended a week-about arrangement, when the parties had elected to adopt it, because of Z’s tender years at the time and X and Z’s developmental issues. 

55. However, Ms R recognised that the arrangement had been in place for over a year and that the parties had consulted other experts to address their communication and management practices. 

1. In this context, Ms R was of the view that the best way forward, for the family, and in order to ensure that the parties prioritise the children’s needs, was for the mother and father to continue to consult with experts, as to how to manage particularly X’s needs.

2. In this context, Ms R thought that both households met the children’s needs, both emotionally and physically.  As such, she could not suggest that one parent was better placed to be the children’s primary carer. 

3. Advantages pertaining to the mother were that she had been traditionally the children’s primary carer, a state of affairs which Mr Vine acknowledges, albeit that it is his position that, when the parties were living together, he was frozen out of caring responsibility. 

4. On the other hand, Ms R thought the advantage of the children living primarily with their father would be that X would feel happier and more settled in his father’s care.

5. So, in the case, as a consequence of Ms R’s report, no parent had a clear advantage over the other.  If Ms R had been advising the parties, at the time of their separation, she would not have been in favour of a week-about arrangement, but the tenor of her report is that it is likely to be difficult now to wind it back. 

6. In this context, she recommended that the current arrangement of week-about care be maintained.  She was more in favour of the children being exchanged at school on Monday, which would avoid direct interaction between the parties.  She also recommended that the parties consult a therapist for X and that the parties engage with the therapist and X in what was described as co-parenting mediation.

7. So, notwithstanding X’s strong views, Ms R favoured the continuation of the week-about arrangement.  However, at this stage, it seems that Ms R perhaps had some reservations about this.  Certainly the parties do, and as I say, the report did not assist them to reach agreement.  Ms R’s report was released in December. 

8. As I have indicated, the report delineated X’s strong preference in respect of living with his father.  It seems to be the mother’s case that she believes that the father has used X’s preference to engineer the current crisis. 

9. On the hand, the father asserts that X has been increasingly resistant to returning to his mother’s home from October of last year onwards.  This has precipitated recriminating emails and text messages between the parties and angry interchanges between them, to which X has been exposed.

10. In addition, the father alleges that X has complained of being mistreated at the hands of the mother’s partner.  The police have been involved at difficult handovers.  From the parties’ respective affidavits, each of which is voluminous, it is readily apparent that the parties have no goodwill for the other and any interactions between them have the potential to become extremely acrimonious.  Each party feels hard done by as a consequence of the other’s behaviour.  Bitterness about financial issues looms large.

11. X seems to be a challenging child to parent.  Clearly the current situation is disastrous for his wellbeing.  The mother complains that the father videotapes handovers and denies that she and Ms K have mistreated X in any way. 

12. Throughout December and into February of this year X’s behaviour has been at times oppositional and difficult, in both his father and his mother’s household.  Things seem to have come to a head around 14 February 2015, after X had come into the mother’s care following a difficult handover at X’s school the previous Tuesday. 

13. The mother describes what she says occurred as follows:

    Between 10 February and 14 February 2015 there were no issues with respect to X’s behaviour.  He was not disrespectful.  He was listening and well-behaved.  In the afternoon on 14 February 2015 the boys were playing in the swimming pool but I observed that they were starting to get rough, as boys sometimes do, so I called them all out and said they needed to calm down or someone would get hurt.  I then said, “If you hurt someone then you will need to get out of the pool for five minutes to calm down.”

    Approximately 10 minutes later, I saw that X had tried to push Y by the shoulder and hurt him.  I called to X and asked him to get out of the pool and sit for five minutes, as I previously advised all three children.  After I had called out to X, I observed that he started to get angry and he began shouting.  He then picked up a toy trailer and proceeded to break it.  I then said to X that as he had deliberately broken something he was now banned from the pool for the rest of the day.  X continued to shout and swear.

    He walked over to the table and picked up an empty bottle and threw it about a metre from my head.  It smashed all over the ground.  I told X he needed to go to his bedroom for time out.  He refused and continued to yell and scream.  I eventually got X to his room where he proceeded to make more holes in his walls and also push his cupboard so hard that it went through the wall.  He also smashed a glass on the tiles outside of his bedroom. Mr S and I decided to go in and remove the cupboard as we did not want him pulling the cupboards and its contact onto himself.

    X then came out of his bedroom and was throwing anything he could find.  He threw a bar stool, which narrowly missed Z, and also threw car keys, which narrowly missed Y.  It was approximately 6.15 pm now and I needed to keep the two other boys safe.  I told X that he was going to his father’s.  Prior to leaving home I tried to phone the father but there was no answer.  I asked X to get into my motor vehicle so that I could take him to the father’s house.

    Whilst on our way to his father’s home, the father returned my call, and I said to the father that I was not going to have someone in my house who was going to hurt his brothers and try to destroy my home.  I also told the father the things that X had been saying to me and Mr S, the psychologist, school counsellor, principal and vice principal.  Specifically, I told the father that X said I was trying to kill the father by taking him to court and that they had to eat Black and Gold label food because the father had no money, as I was taking him to court.

    I said to the father that he needed to tell X himself that these matters that X was repeatedly now raising were not true.  When I arrived at the father’s home, both the father and C asked me to come inside and sit down and talk with X.  I responded, and said, “Not tonight.  Enough has happened tonight.”  I said to the father that he should have X for a couple of days so that he could explain to X that the matters that X was constantly repeating as a result of the father speaking to him about were simply not true.

    C responded, “We’ll pick the boys up, and they will live here permanently.”  I did not respond, as X was present, and it would have only resulted in an argument.  Simply, I got in my motor vehicle and left.  Further, I say that I have never said that the father could not live with me.  I did say to X, and also to the father, on 14 February 2015, that X cannot live at my place if he continues to hurt his brothers and break our house.  Since this incident, I have spoken with X’s psychologist, who believes that this is what I said, but, due to X's Asperger’s, she believed that all he processed from that was that he could not live with me anymore.

14. The father’s position is that the mother ostensibly refused to care for X, or at least that X perceives that he has been abandoned by his mother.  In his affidavit, Mr Vine deposes as follows:

    When the mother arrived at my home with X on Saturday evening, I explained to X, in front of the mother, that the mother is not trying to kill me and is not taking my money.  X admitted to the mother at the time that I had never said these things and he had made them up.  X told his mother then that he doesn’t want to stay with her because of the way she treats him.

15. Accordingly, each party now believes that the other has gravely mishandled what occurred on 14 February.  At this stage, in the context of this interim hearing, I am not in a position to make any definitive findings in this regard.  From my perspective, given the final hearing is six months away, it is time for everyone to take a deep breath and try and calm down. 

16. At this interim stage, it is invariably imprudent for the Court to make a dramatic or wholescale change in respect of arrangements for children on the basis of untested and often hastily prepared evidence in affidavit form.

17. In this context, it is important to note that Ms R did not recommend any large-scale changes for the children, notwithstanding X’s strong views.  At this stage, to each party’s great credit, they have taken on-board Ms R’s recommendation regarding therapy for X. 

18. A therapist, Ms S, has been engaged to consult with X and his parents.  Ms S arranged for X to spend a recent Thursday overnight with his mother.  I now have a short report, which Ms S prepared recently. 

19. Ms S confirms that she has consulted with the parents and X on about nine occasions, beginning with 23 October 2014.  She describes X as:

    ...an easy-going and fairly amiable child; however, X can be blunt in what he says at times, which is consistent with a diagnosis of autism.  X doesn’t display empathy.  As what occurred on the 14^th of February demonstrates, X can quickly move from appearing to be relaxed to being very upset.

20. X is not a child, in Ms S’s opinion, who easily lets go of things or goes with the flow:

    If he is upset about something, he remains upset.  He can become fixated on issues, particularly on what someone has said or how they have behaved.  At this stage, X apparently has a belief that he is often unfairly dealt with by, especially his mother, but also by his father, when he misbehaves.

21. X also appeared to Ms S to be confused by things he has been told, and Ms S gave some examples:

    “Isn’t it normal for kids to like their dad better when they’re older?”  “Do you know why Mum hates Dad so much?”

22. These comments seem to dovetail with Ms R’s view that X, and, indeed, his younger brothers, needs authoritative parenting, which leaves no room for ambivalence or uncertainty. 

23. In regards to resolving what Ms S described as “the current impasse”, she recommended that regular contact continue between X and his mother.  Ms S said it was preferable at present that X spend shorter amounts of time, more regularly, with his mother, rather than trying to have him there for longer periods less often.

24. Ms S noted that, although X can appear unwilling to go with Ms Vine – that’s his mother – this can quickly change, and he will happily leave with her if appropriately directed.  Ms S reported that this had been her experience of X and his mother. 

25. The mother reported to Ms S that, while X had been destructive at her house, he appeared to her to be in control of his behaviour, and, thus, was choosing to damage things, rather than being out of control.  In this context, Ms S proffered the advice to the mother that X not be sent away from her house, when he was behaving in this way, as this would reinforce his behaviour. 

26. Accordingly, by necessary implication, it is Ms S’s view, I think, that Ms Vine did not handle the incident of 14 February as well as she might have done.  I am not overly critical of Ms Vine for that, because, clearly, this was a very difficult situation, which she had to confront. 

27. Ms S cautioned both parents to be careful with what X said about what had happened; this was both because X might misinterpret events or be unaware of the subtleties of language, relating to them.  Again, this seems to be the nub of what occurred on 14 February.

28. I doubt that Ms Vine intended to convey to X any desire on her part, to end her relationship with him.  Clearly, the evidence indicates that Ms Vine loves X very much indeed, as, indeed, does Mr Vine, and she wants to remain closely involved with him. 

29. Ms S was critical of the practice of videotaping handovers or using the police to deal with problems.  She did not think either strategy was likely to be helpful to X’s mental health.  Ms S also underlined to both parents the impact on their children’s wellbeing of being exposed to endemic, ongoing conflict.  Because of his special needs, X is at particular risk in this regard.

30. The difficulty I have with Ms S’s report is that I do not really know what regular contact, that is, shorter amounts of time, but more regularly, actually means.  Certainly, it would appear to be Ms S’s view that X needs to spend time with his mother, and it is hoped that any misunderstanding between the two is put to rights sooner rather than later. 

31. There are many factual disputes between the parties at this stage, but there is also much that the parties share: both of them want the best for their three children; both are capable parents who are able to provide for their children’s emotional and physical needs.  However, their co-parenting relationship is strained, and each has a different view as to why this is so.

32. The various factual issues in dispute between the parties cannot be resolved in the context of these interim proceedings, which necessarily must take place in an abbreviated form.  At this stage, neither party has been cross-examined by the lawyer for the other.  As such, the Court, at this stage, cannot resolve the serious and worrying controversies arising in the case. 

33. The same legal principles must be applied at both the interim and the final hearing stage, the difference being that interim hearings do not determine long-term arrangements for children; that is the function of final hearings.

34. In deciding whether to make any particular parenting orders in relation to a child, the Court must regard the best interests of that child as the paramount, or most important, consideration. 

35. The matters which the Court must take into account in deciding how a child’s best interests are to be served are set out specifically in list form in section 60CC.

36. The section creates two classes of considerations which are relevant: primary considerations, and a longer list of additional considerations.

37. Generally speaking, the Court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act set out in section 60B.

38. There are two primary considerations, which are as follows: firstly, the benefit to the child of having a meaningful relationship with both of his or her parents, and, secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

39. As a result of the insertion of section 60CC(2A) into the Act, the Court is now directed, in applying the primary considerations, to give greater weight to the primary consideration relating to protective concerns applicable to the child who is the subject of the proceedings concerned.

40. However, these considerations still need to be considered within the overall framework of Part VII of the Family Law Act – particularly, its underlying principles and the legislatively mandated objects or aspirations of the Act. These are set out in section 60B and are illuminative of the dilemma which the case throws up. They speak of children’s rights to know and be cared for by both of their parents and to regularly spend time with each of them, regardless of the nature or duration of the relationship between their parents.

41. In this case, the mother emphasises the need for X to continue to have a meaningful level of relationship with her, which she asserts will not occur if she sees him for only brief periods of time, which may also create a danger that the rift between the two will deepen, rather than lessen. 

42. On the other hand, it is the father’s position that to compel X to interact with his mother, against his strong wishes, will be detrimental to the psychological wellbeing of the child. 

43. Pursuant to section 60CC(3)(m), the Court is empowered to have regard to any other fact or circumstances which it considers relevant. This is to ensure that the infinite variety of children’s circumstances may be addressed in whatever order the Court makes. The Court’s responsibility is to deliver individual justice for the child affected in every case.

44. Given the importance, which the applicable legislation places on the co-involvement of parents in their children’s lives and development, there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her.

45. This presumption relates to the allocation of parental responsibility, not the allocation of time which a child specifically spends with each of his or her parents. 

46. However, if the presumption applies, the Court is required to consider, firstly, whether the child concerned should spend equal periods of time with both his or her parents, or secondly, substantial and significant time with each of his parents, provided.

47. However, each such outcome is subject to the satisfaction of two considerations.  These conditions are that such outcome is both in the child’s best interests and reasonably practicable to implement. 

48. In this case, the parties agree that they should have equal shared parental responsibility for X, Y and Z.  They agreed that in May 2013.  I do not propose to go behind this agreement, particularly as it is envisaged that the two younger children will continue to be parented in an equal time regime.

49. The question for the Court, at this stage, is what the arrangement should be for X, given the current difficult situation.  The mother proposes a substantial and significant regime for her time with X; the father something less, in the short term, but building up in the short-to-medium term. 

50. Both outcomes must be considered within the context of what the Court thinks is in X’s best interests.  However, the mother’s application also turns on issues of practicality, which are discussed in section 65DAA(5).

51. The Court is required to consider how far apart the parties’ homes are; the parties’ current and future capacity to implement shared-care-type arrangements; the parties’ ability to communicate with one another; and solve parenting problems consensually; and, most importantly, the likely impact of such an arrangement on the child concerned. 

52. In MRR v GR[1], the High Court considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent, or substantial and significant time, and the question of whether such outcomes are reasonably practicable, which arise as a consequence of section 65DAA(1) and (2) of the Act.  It has determined that both questions must be answered in the affirmative.

    [1] See MRR v GR [2010] HCA 4

53. I now turn, as best I can, given the contradictory, untested nature of the evidence available to me, to consider the various applicable factors arising under section 60CC.

54. X knows both his parents well.  There has been a shared care arrangement for nearly two years. 

55. In this context, I do not consider that it would be beneficial for X for his relationship with his mother to be rolled back at this stage in the context of an interim hearing, when a final hearing is reasonably imminent.

56. Nor would such an outcome, in my view, be consistent with Ms R’s recommendation.  I also note it is agreed that she should revisit the family, given the recent crisis.

57. It is also noteworthy, I think, that Ms S, who has some insight into the current crisis, recommends that regular contact between X and his mother continue. 

58. As I have indicated, Ms S recommends shorter amounts of time more regularly between X and his mother.  In this context, I have grave concerns that Mr Vine’s proposal is inadequate for X to maintain a meaningful level of relationship with his mother and represents a risk that the current rift will widen, rather than diminish.

59. I do not think that there is cogent evidence to indicate that either party has exposed X, or, indeed, the other children, to any form of neglect, abuse or family violence as defined by the Act.  However, as Ms S notes, the parties’ conflicted relationship has the potential to do great harm to the children – particularly X – at this stage. 

1. Both parties are likely to have contributed to the problems arising for X.  He needs strong, clear parenting, and the parties themselves need to remember that it is unwise for them to believe everything X says about what has happened to him in the other parent’s household.

2. In terms of the additional considerations, clearly, X’s views are important, but they are not the only consideration.  Weight must be given to his maturity and level of understanding of what is happening in the complex family dynamic.  It is also necessary to consider the factors likely to be influencing his views at this stage. 

3. At just over nine years of age, he is far from maturity.  His views are likely to be strongly influenced by his, possibly misconceived, view of what is going on between his parents.  He is likely to be strongly influenced by his father, whom he idealises.

4. At this stage, in my view, he is too young to be placed, either consciously or unconsciously, in the role of judge and jury of his mother and her conduct, particularly what has happened recently.  It is also likely to be detrimental to him if he perceives that he can get what he wants in the short term by behaving inappropriately – this was the clear takeaway message from Ms S’s brief report.  In these circumstances, in my view, the Court must approach X’s apparent views with a high degree of caution.

5. X has a close and loving relationship with both of his parents. However, he sees things in black and white terms.  In this context, Ms S noted that X can also quickly change his opinion, if he is approached skilfully.  I am very concerned that it would not be in X’s long-term best interests that there be further erosion of his relationship with his mother. 

6. Both parties bring different skills and attributes to their parenting of X, and both are capable of satisfying his physical needs.  In this sense, I am at pains to emphasise that both are good parents.  It was in recognition of this fact that Ms R recommended a continuation of the equal time regime.

7. The parties agree that it would be helpful to have an independent children’s lawyer and an update from Ms R.  I agree with both such proposals. 

8. In my view, it would be unwise for the Court to do anything dramatic or precipitant in changing arrangements for X’s care, certainly until further information, in the form of Ms R’s updated report, is to hand, and the independent children’s lawyer has some input into what is likely to be best for the children. 

9. However, the current crisis dictates that there should be some change.  The mother recognises this to be the case.  She wants some one-on-one time with X, something, which Mr Vine endorses.  The question at this stage is how great the change should be. 

10. I must also be mindful, in implementing a substantial and significant time regime, of the practical issues which this difficult case creates.  The parties’ homes are some distance away.  They have limited capacity to communicate with one another and solve parenting problems consensually.  Each party asserts, I think, that the current shared care arrangement has the potential to be detrimental for all the children, but particularly X.

11. However, the fact remains that it is a period approaching two years, during which the parties have had an equal time regime, and this is what Ms R recommends.  In this context, notwithstanding the practical difficulties, I think there is the strong possibility that what Ms Vine proposes can remain workable.

12. I am also concerned about X being unduly separated from the maternal regime involving his younger siblings.   I am concerned that it might not send a good message to X that he must interact with his mother in the short-to-medium term alone.  In my view, these various factors more favour the mother’s proposal than the father’s, which does not seem to me to be in keeping with Ms S’s thoughts in the case.

13. Clearly, the seven-day-about regime will continue for Z and Y until final hearing.  Handover at school for them on Mondays is the best arrangement, as it avoids the involvement of the parents with one another. 

14. In my view, at this stage, X should spend one school night per fortnight with the mother, without Z and Y being present.  In this regard, the mother’s proposal of Thursday to Friday in the week, when the two younger children are with their father, seems appropriate. 

15. In the other week of the fortnight, I propose that X should spend a shorter period with his mother and siblings than the mother proposes.  I propose that it should be from Friday until Monday. 

16. The rationale of this is that the weekend, perhaps, will be less stressful and more fun for everyone concerned, but the mother will be able to prepare all three children together for school on the following Monday morning and so stay involved with some of X’s day to day regimen.  In my view, this will also add and maintain the current high level of meaning in the relationship between X and his mother.

17. There, of course, is the risk, which Mr Vine emphasises, that X will not do what he is required to do.  One of the factual issues in this case, which I cannot resolve, is the danger that X is being, either consciously or unconsciously, manipulated by his father to bring about the current crisis, which Ms Vine would say pointedly arises very soon after Ms R’s report is released. 

18. That is a factual issue which I cannot resolve at this stage.  I may not be able to resolve it at the final hearing, but, in this regard, I note that Ms S indicates that X can be talked around and was observed to go with his mother quite happily.

19. At the end of the day, X is a nine-year-old child, and it will not be helpful to X if, as he grows into adolescence, he perceives that, by behaving poorly, he can get what he wants in the short-to-medium term. 

20. The parties have to have a common front in regards to putting in place the orders which I propose.  It would be unacceptable if either of them sought to undermine them in any way whatsoever. 

21. However, as discussed with each of the party’s counsel last Friday, one of the advantages of the matter being dealt with today is that there is an appointment between X and Ms S scheduled for tomorrow.

22. I propose that Ms S be given a copy of these orders, so that she can explain them to X in black and white terms and indicate to him that this is the decision which has been reached.  If both parties support the orders, I would be confident that they can be adhered to.

23. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:  6 July 2015