VL and VSL - [2004] FMCAfam 113

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VL & VSL

[2004] FMCAfam 113

FAMILY LAW – Children – interim residence – application of principles in Cowling (1998) FLC 92-801 – need for stability in children's lives – lack of clarity in children's school reports making it impossible to recognise that a child is experiencing educational difficulties and exhibiting serious behavioural problems.

Family Law Act 1975

Re G (Children's Schooling) (2000) FLC 93-025
A v A: Relocation Approach (2000) FLC 93-035
U v U [2002] HCA 36
Cowling (1998) FLC 92-801

Applicant:

Respondent:

VSL

File No:

MLM 2777 of 2003

Delivered on:

28 January 2004

Delivered at:

Dandenong

Hearing Date:

28 January 2004

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Mr J. Williams

Solicitors for the Applicant:

McMahon & Treby

Counsel for the Respondent:

Mr R.P. Hutchins

Solicitors for the Respondent:

Elizabeth R Stagg

Counsel for the Child Representative:

Ms Windisch

Solicitors for the Child Representative:

Victoria Legal Aid

ORDERS

Paragraphs 1 and 4 of the Orders made in the Family Court of Australia at Melbourne on 20 May 2003 do remain in full force and effect.
Paragraphs 2 and 3 of the said Orders be discharged.
Until further Order:
(a)the children J born 27 March 1994 and S born 17 January 1997 do reside with the wife and she be responsible for their day to day care, welfare and development;
(b)the father have contact with the said children as follows:
(i)each alternate weekend from 6.00 p.m. on Friday until 5.00 p.m. on Sunday, commencing on 13 February 2004;
(ii)half of all school holidays, as agreed between the parties; and
(iii)as may be otherwise agreed between the parties from time to time;
(c)contact changeover do take place in Euroa, at such place as shall be agreed upon between the parties from time to time; and
(d)the alternate weekend contact referred to in paragraph (b)(i) above be suspended during all school holiday periods.

AND THE COURT NOTES THAT:

Pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

MLM 2777 of 2003

Applicant

and

VSL

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Before the court for determination today are the parties' competing applications for interim residence of their children J and S. I am delivering these Reasons at shortly after 4.15 pm on a Wednesday in Dandenong. The matter first came before me for argument in Melbourne on 20 January 2004. On that day, I saw fit to appoint a child representative. I considered it appropriate to allow the child representative to put forward submissions in relation to relevant issues at an appropriate time, and the matter was adjourned to today to enable that to take place. At the same time I made orders which permitted the parties to file any additional affidavits that they wished to file regarding the matters in issue in the proceedings.
These Reasons, because they are being delivered on an ex tempore basis, are likely to be disjointed — and something other than elegant.

I apologise to the parties for that, but I do reserve the right to review these Reasons should it become necessary to do so, and to amend them, correct them or add to them as I see fit. In particular, I reserve the right to make further references to parts of the evidence where it may be necessary to do so to support the statements that I may make, and to make reference, if appropriate, to passages from reported cases (or unreported cases) which may be relevant to these proceedings.
I am particularly grateful for the assistance that I have received from counsel in this matter. All three counsel have assisted the court to focus on the matters that are of most significance in a decision of this nature.
The formal details are set out in the information sheet which was filed by the husband in support of his application filed on 27 October 2003. The father was born in November 1964. The wife was born in November 1965. The parties married in February 1992. They separated in April 2002 and they were divorced, according to the information sheet, in July 2003. The two children the subject of the proceedings are J, who was born on 27 March 1994, and S, who was born on 17 January 1997.
The relevant history in this case is somewhat difficult to identify from the material filed on behalf of the parties. Before I go much further in these Reasons, I should comment that, in many ways, this was a case run in two parts, or two halves. When the proceedings came on before me on 20 January, just over a week ago, I had the benefit of certain material filed on behalf of the parties and, in addition, a family report prepared by Barbara Fraser. There was no objection to the family report being admitted into evidence. The evidence then before the court also included affidavits filed by the husband on 10 October 2003 (sworn on 7 October 2003) and filed on 22 October 2003 (sworn on

17 October 2003). On behalf of the wife, the only affidavit material before the court was an affidavit sworn by her on 27 November 2003.
The husband's material — at that stage — did not provide very much at all by way of a history of the parties' relationship. The core affidavit, being the affidavit in support of his substantive application for residence filed on 22 October 2003, was his affidavit of 17 October 2003. That affidavit is very brief. He says in it that the parties were married on the date that I have already referred to, and provides certain factual details of a formal nature, including the fact that orders were made by consent in the Family Court at Melbourne on 20 May 2003 resolving all parenting issues and financial matters. A copy of those orders is attached to the affidavit.
The husband said in paragraph 5 that both children are enrolled at Eltham College — J in grade 3, and S in grade 1. Indeed, those were the grades in which the children were enrolled during 2003. The husband said that:
The children have attended Eltham College for all their primary schooling to date by agreement with both the wife and I.
The husband then deposes to the fact that the wife has moved to Yarrawonga. He says in paragraph 6:
After carrying out the financial aspects of the orders of 20 May 2003, including payment by me to the wife of the sum of $405,000, the wife then moved to Yarrawonga for two months without seeing the children and then embarked on a travelling tour of Australia with her male friend, again leaving the children in my care. The wife had the children in Queensland for a period of six weeks in mid‑2003. The wife rang me from Cairns and told me I could pick the children up from there on a certain date, which I did, requiring several days' travel for me to get them in the first week of August. The wife returned to Victoria in September 2003. On return from her travels, the wife purchased a property in Bundalong, near Yarrawonga, and advised me of the address shortly prior to the September‑October school holiday vacation period.
The husband also deposes to the fact that the parties agreed that the wife would have the children with her over the school holiday period which finished on 5 October 2003. The wife, according to the husband, did not return the children to him for the beginning of fourth term last year, and he made an application for a recovery order. As matters turned out, it was not necessary for the recovery order to be enforced — because the children were returned to the husband (in the circumstances described in the husband's affidavit) on the weekend of Saturday, 11 October 2003. Most relevantly for the purposes of these proceedings is the husband's statement in paragraph 12 of the affidavit:
I wish to vary the current orders so that the children do not spend alternate weeks with the respondent and I but remain living with me until at least the end of the school year 2003. I believe it is extremely disruptive for the children to be taken out of their current circumstances and moved to Yarrawonga to a different school for the final term of 2003. I am prepared to participate in counselling or mediation in relation to further long-term arrangements in relation to the children but wish to have orders in place to prevent any unilateral action by my former wife until agreement is reached.
That was the only material filed on behalf of the husband at that time. The wife's affidavit was more detailed. She restated the formal details, confirmed that the children were enrolled at Eltham College and proceeded, in subsequent paragraphs of her affidavit, to describe the arrangements that had adhered since the date of separation.
During the course of the hearing on 20 January 2004 I ascertained (as best I could) the history of the arrangements for the children from prior to separation to the present date. At that time, I did not have the benefit of the most recent affidavits of the parties — but I did have the benefit of the report that was prepared by Ms Fraser.
The case changed radically upon the filing of the father's most recent affidavit.
It is the wife's case that, prior to separation in April 2002, she was the principal caregiver for these children. It is very difficult to ascertain from the husband's material quite what he says about this matter. He does not say, however, that he was the principal caregiver for the children. His most recent affidavit contains a litany of complaints about the wife. The complaints relate to the wife's behaviour prior to the date of separation. Notwithstanding those complaints, the fact of the matter is that these parties reached agreement shortly after separation to the effect that the children would spend alternate weeks with each of them. Implicit within such an agreement is a recognition by each party that the other has the capacity to properly parent the children.
In the husband's most recent affidavit, in paragraph 6, he responds to certain of the matters deposed to by the wife in her initial affidavit. He does so in something of an indirect manner. He states that he has read to his children and helped with basic education skills since they were one‑year‑olds, and most nights before bed. He then says that he did so, "…because Sandra, (being the wife), found education instruction laborious." He continues:
As a full‑time mother, I would have expected her to do more activities with the children in their early years, which she rarely did.
He goes on to say:
And I now see it as the main reason for both J and S being slightly slow developers at school.
That last comment, in my view, says far more about the husband and his attitude than it says about the wife. There is not a shred of expert evidence to support a conclusion of that nature, as drawn by the husband.
Throughout the husband's affidavit he makes certain comments regarding the wife's care of the children, including suggestions that she was not prepared to spend appropriate time with the children. In paragraph 8 of his affidavit (towards the end of the paragraph) the husband says:
With all her spare time with the children, especially J of school age and S developing as a child, her role as a mother and wife was being overshadowed by socialising becoming separated from her own family unit from outside influences. As a consequence, I have a major role in the children's parenting, and way beyond involvement many fathers have.
Notwithstanding the complaints raised by the husband (which are not admitted by the wife) it seems clear to me that the wife was indeed a full-time parent, and that the husband was not. The husband complains of the quality of care and supervision and educational support provided by the wife, but it is a fair inference to draw — from the material now available to me — that the wife was indeed the principal caregiver of these children prior to separation.
The circumstances surrounding the parties' separation are also dealt with by the husband in his most recent affidavit. In paragraph 10, the husband, after making certain comments regarding the wife which, in my view, are of no relevance to the matters in contention today, the husband said:
She wanted to separate and encouraged me to find somewhere else to live. After several months of her begging for me to leave, I told her no, I would not leave the family home and my place of business. Within one week she moved to Templestowe.
The husband then makes the following self-serving statement:
Being responsible, I helped her to shift to make the transition of separation with the children as amicable as possible. I paid the rent on this property, the children's education and associated clothing and entertainment expenses and some maintenance whilst sharing care of the children.
It is clear from the husband's own evidence that not only was the wife the principal caregiver for these children (albeit that she was not providing care of such quality as would satisfy the husband at that time), but she also wished him to leave the home so that she could continue in that role. The husband elected not to leave and, as is recorded in the family report, the parties separated. It would appear that the separation was amicable. The parties reached an agreement to the effect that the children would spend alternate weeks with each of them.
That arrangement commenced in or about April 2002 — shortly after separation. According to the wife, it continued until approximately May 2003. The husband suggests that it ended earlier, but I note from the date of the consent orders entered into between the parties (and from the material contained in the husband's form 4 application for divorce) that at other times the husband has clearly been of the view that the shared parenting arrangements continued for a longer period than that to which he refers to in his first affidavit in these proceedings. Suffice it to say that in or about May 2003, the shared parenting arrangement came to an end.
According to the wife, she took the children on a trip commencing on 13 June 2003. Between May 2003 and mid-June 2003 (when the wife took the children on the holiday referred to in her affidavit), the wife — according to her material — spent approximately a month at Yarrawonga with her parents. She deposes to having travelled to Melbourne on alternate weekends to see the children. It is unclear from the husband's material precisely what he says about this period. He suggests that the wife either had no contact at all with the children during that period, or, alternatively, that she had minimum contact. Either way, the period appears to have been approximately a month or so, and there is no doubt that the children resided with the husband during the period. At best, the children had a weekend or perhaps two weekends with their mother.
At the conclusion of the month that the wife spent with her parents in Yarrawonga, the trip referred to in the affidavit material took place. There is dispute as to the precise length of the trip, and as to the agreement that the parties reached in relation to it. What is abundantly clear, however, is that the parties agreed to the children being removed from school for the time necessary for them to embark upon this trip. It would appear from the material before me that the duration of the trip was something between six weeks and two months. The husband does not supply in his material a precise date upon which the children embarked upon the trip. The wife does provide such a date, (being

13 June 2003) — and that date is not directly denied by the husband. It is likely, therefore, and on a preliminary basis and drawing inferences where I can on the material before me, that the date of 13 June is correct. But even if it is not, the children clearly spent something in the order of six to eight weeks travelling with the wife and her partner. It appears that they had no direct contact with the husband during that period.
On 5 August 2003, and in circumstances which are also in dispute between the parties, the children were returned to the care of the husband in Cairns. He brought them back to Melbourne, and the children remained with him until the third term school holidays. During the third term school holidays the children were with the wife in Yarrawonga. It appears that they were with the wife for a period of approximately three weeks. Again, I may be out by a few days but the period is approximately 3 weeks or a month.
The parties depose to events which occurred on the weekends of 5 and 11 October. In paragraph 7.1 of her first affidavit, the wife says that she collected the children from the husband at Mansfield on

15 September. She then says:
The changes to residence in the next three weeks were not discussed. I tried to discuss these issues with (the husband) on many occasions, only to be told repeatedly that the children must be bought (sic.) back to him by 5 October to finish the term at Eltham College.
In paragraph 7.2 the wife said:
I agreed to them finishing their last term there and then negotiated that (the husband) meet me halfway at Euroa for exchange of the children on 5 October. He refused, stating he had to work on that day, in which my reply was that, "If you require me to bring the children to your doorstep on Sunday,

5 October 2003 and you are working on that day, how will the children be cared for?" The negotiations were to no avail and the repetitive demand from (the husband) of delivering the children to his doorstep on a day which he states he will be working all day was not satisfactory to me.
In paragraph 8 the wife said:
The children were then enrolled into Sacred Heart Primary School Yarrawonga, a school they were acquainted with as their cousins attended the school. On 11 October I drove down to Melbourne for the children to see their father for the weekend on Sunday, October 12. I arrived at (the husband's) home to collect the children and negotiate further the future arrangements for the children, only to be told by (the husband) they will not be returning with me and I had no other option but to leave his property without the children so as not to argue and upset them over these important issues that needed to be sorted out in an appropriate manner and in the absence of the child.
The wife was served with a recovery order a few days later — at a time when the children were already in the care of the husband.
It appears that the wife retained the children without just cause at the beginning of October 2003, and proceeded to enrol them at the Yarrawonga school. Her actions in this regard are unfortunate. They were certainly disruptive from the point of view of the children. The wife explained to Ms Fraser her reasons for enrolling the children at that time. I am unable to identify the passage at the present time, but suffice it to say that it does not amount to a reasoned or reasonable decision to enrol the children at that stage.
Nevertheless, and notwithstanding the submissions of counsel for the husband, there were no relevant and enforceable orders in place at that particular time. Both parties had long since decided to abandon the week about arrangements which were reflected in the orders made in May 2003. In my view, it cannot be inferred from the wife's actions at that time that she is incapable or unwilling to comply with orders that this or any other court may make in relation to the best interests of the children. Nevertheless, the events of that time are important.
The wife's case is that the arrangements for the children were (in effect) in limbo, to use a colloquialism, from the time that the alternate week arrangement ceased to adhere. The evidence of the husband, and the manner in which he brought the proceedings before the court, recognises that the arrangements were neither final nor stable. He clearly regarded them as interim arrangements. He came to court specifically for the purpose of cementing those interim arrangements until negotiations could take place to determine the best interests of the children, and how they were to be promoted.

After the husband retained the children on the weekend of 11 October 2003, they remained living with him and attending Eltham College until the end of the 2003 school year. Consent orders made in this court on 1 December 2003 reflect the contact arrangements that have adhered since that time. The children were in the care of the wife from 13 December to 26 December and again from 9 January 2004 to

23 January 2004, and I reserve the right to check the orders to ensure that I have accurately reflected the dates.
It is also clear from the material before the court that the children are well aware that the arrangements as to where they are to reside on a permanent basis and as to the school they are to attend are unsettled. In paragraph 26 of Ms Fraser's report the comment is made:
The husband said he takes the children to school and collects them at 4.30 pm from after-school care. He also reports that the children understand that they may not be at Eltham College in 2004 and that he does not have any information about the proposed school in Yarrawonga.
The husband's affidavit sworn on 17 October 2003 reflects the uncertainty as to the school that the children will attend in 2004, and recognises that they may not be attending Eltham College.
In addition to this material, the husband in his most recent affidavit, (in particular, in paragraph 11 at the foot of page 6) deposes to a certain effect on the part of the children becoming more apparent when they came to the realisation that they may not continue at Eltham College, and may have to contend with relocation and residency issues. He quotes J, however, as often saying, "Who cares about Eltham College? I know I'm not going to be here next year." The husband says that this is a sentiment that J did not express until his mother shifted to Bundalong. That, of course, is not at all surprising. Prior to the wife's relocation to the Yarrawonga, area the parties resided close to each other, and it was agreed that the children would attend Eltham College.
But it has been clear since approximately May 2003 that the arrangements as to the school that the children are to attend, and as to the parent with whom they are to live on a full‑time basis, were uncertain — and each of the parties took steps to improve his/her position in relation to the case that would ultimately be put before the court.
In essence, the proceedings before me are interim residence proceedings. There are other aspects to the proceedings beyond that simple (if one can term it as simple) question. The case involves elements of what have been described as relocation cases. As well, the case necessarily involves questions relating to a proposed change of the children's school. Clearly, the children cannot attend Eltham College if they live with their mother on a full‑time basis. Nor can they attend Sacred Heart College in Yarrawonga, if they reside with their father on a full‑time basis.
I am not unfamiliar with the law in relation to either of those subsets of the residence or parenting equation, as it were. Re G (Children's Schooling) (2000) FLC 93-025 deals with the question of children's schooling, and emphasises that it may be a separate question to the question of with whom the children are to reside on a full‑time basis. In the circumstances of this case, the school that the children are to attend will be determined by the decision as to the parent with whom they are to live.
Similarly, relocation issues such as A v A: Relocation Approach (2000) FLC 93-035 and U v U [2002] HCA 36, are of academic interest only — because the wife has already relocated to Yarrawonga and set down roots there.
It is for the court to look at all the relevant issues in the context of interim residence, and to endeavour to make orders which are in the best interests of these children. The approach to interim residence issues was described by the Full Court in the well-known decision of Cowling (1998) FLC 92-801. The relevant paragraphs of Cowling are paragraphs 18 through to 25 inclusive, and I incorporate those paragraphs in these reasons. In paragraph 18 the Full Court said:
The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.
The usual interim residence case is one which comes on for hearing not long after the parties have separated. Sometimes it is the case that a parent who was the principal caregiver left the former matrimonial home for one reason or another, and the children have remained in the home. Sometimes other arrangements adhere. It is for this reason (amongst others) that the court focuses, to some extent at least, on the care arrangements prior to separation. But in a case such as this one — where the parties have been separated since April 2002, and where week about arrangements were in place until May 2003 or thereabouts — and having regard to the events that have occurred since May 2003, the care arrangements prior to separation would appear to be of somewhat less weight. At the end of the day it is a question of the overall weight that the court must attribute to all relevant facts and factors.
There are invariably factors that will support one party and other factors that will support the other party. Some factors are neutral. But it is for this court to balance all factors as best it can and determine how best to promote the interests of the children. In paragraph 19 of Cowling the Full Court said:
Having regard to the earlier authorities of the Court to which we have referred and to the current provisions of the Act, we would summarise the relevant criteria for the determination of interim proceedings for residence and contact as follows:
Firstly, having regard to the provisions of s.65E, in determining what interim parenting order should be made, the Court must regard the best interests of the child as the paramount consideration.
I pause here to say clearly that I have uppermost in my mind, as I consider the matters in issue in these proceedings, the best interests of these children. They are, without doubt, the paramount consideration in the proceedings now before me — even if the parties have seen fit from time to time (in their documents or otherwise) to focus on other matters which are not directly relevant to that consideration.
Secondly, given the mode by which interlocutory proceedings are conducted, those interests will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues. Accordingly, as a general rule, any interlocutory order made should promote that stability.
I made orders on 20 January 2004, which were designed to program this matter to trial. It is currently listed for trial on 13 December 2004 in Melbourne. There is a possibility that it will come on for hearing at an earlier time as this court moves to a full docket system. At the present time, however, the likelihood is that the trial will be held on

13 December and any orders that I make must recognise the fact that there are some 11 months between today's date and that date. It is for that period of time, at least, that the orders that I propose to make must operate.
How do I promote stability in the lives of these children? Paragraph 21 of Cowling, which refers to stability, infers that it is possible to identify how best to promote stability in the lives of children, including on an interim basis. In some cases, however, it is extremely difficult to determine which interlocutory order is most likely to promote stability in the lives of the children. That is so because stability may have many aspects, or facets. Prior to the date of separation the wife, it is fair to say, was likely to have been the sole caregiver for the children. The arrangements that might have been made immediately after separation (had the matter come on for hearing at that time) may have reflected that fact. From separation to May 2003 stability in the broadest sense would have meant an arrangement whereby the children continued to spend alternate weeks with their parents — on the assumption, of course, that there were no other factors which might lead to that arrangement being discontinued.
But what is stability in the circumstances of this case in the period from May 2003 onwards? In my view, there has been little stability in the lives of these children. They have spent a great deal of time with each of their parents. True it is that they have attended Eltham College for most of that time, apart from the time that they were travelling with their mother and her partner (when they were not attending school at all) and the week they spent at the school in Yarrawonga. They have lived at the father's home and they have lived at the mother's home. They have also lived in a caravan or equivalent for six weeks or two months.
There can be no doubt, in my view, that these children need stability in their lives. The period between now and the date of trial is relatively lengthy. One can only hope that the listing procedures will enable that period to be shortened. But I must approach this case knowing that the orders I am to make will involve the children continuing to live primarily with one parent (and attend a particular school) for, in effect, the whole of the 2004 academic year.
The child representative was appointed as a result of orders made on

20 January 2004. She received her instructions only very recently — indeed, immediately before the long weekend just passed — and was only able to read the relevant material this morning, before argument commenced. Nevertheless, I am grateful to the child representative for her input. She took steps to speak with certain persons regarding the matters that are in issue in these proceedings, and she did so prior to the matter coming on for argument — and without objection from counsel for either party. The child representative has conveyed to the court the results of her discussions. Again, no objection was taken to the reception of that evidence.
I will order a transcript of the child representative's comments, which will enable me to check the accuracy of the statements that I am about to make. But the rough notes I made at the time are to the following effect:
a)The child representative spoke with Ms Langley who is the head of the junior primary section of Eltham College, or equivalent. She spoke of J having learning and behavioural difficulties which go back some way. He has difficulties with impulse control, and difficulties in concentrating. Although he is a bright child, he appears to have social and emotional problems.
b)The school is of the view that J will require an appropriate psychological assessment. He has been "acting out", as the expression was used, in such a way as to put himself and other children at risk.
c)It appears that, notwithstanding the request of the school that an assessment of J take place, it is yet to occur.
d)The child representative has advised me that J's name has been placed on a list, and that in due course he will undergo the appropriate assessment.
There can be no doubt that the husband has the financial wherewithal to pay for private psychological or counselling assistance for J, if he is minded to do so. The wife states that she was unaware of certain of J's actions and behaviours until she spoke with Ms Langley. It is of concern that, notwithstanding that the children have attended Eltham College from the husband's home for most of the period since May 2003, J's problems are as described to me by the child representative (and not by either party) and that the husband appears to have done little or nothing to address those problems through avenues that may have been available to him.
Importantly in the context of these proceedings, the husband says little or nothing of those problems in the affidavit material which he has presented to the court. In his divorce application, the husband said that both children were progressing well at their school. That is a document which he swore on 1 May 2003. In his most recent affidavit, the husband attaches school reports for J and for S, again with the comment, "I think that the children are progressing well at school".
I have already commented to counsel about the very poor (and wholly unsatisfactory) quality of the children's school reports. They give no indication whatsoever of the real problems that these children are encountering in relation to their education.
According to the child representative, the school justifies the lack of clarity in the reports by saying that they are for viewing by the child, amongst others, and that the report does not refer to academic progress for that reason. That may well be the case, but the position is that the husband saw fit to annex these documents to his affidavit material in an effort to persuade the court that the children were doing well at Eltham College and that they should not be removed from that school.
I am painfully aware that these are interim proceedings and that the court ought not to be drawn into the merits of the substantive cases of each of the parties, and I will not be so drawn. But it is certainly a cause for regret that the full position was not made clear to the court prior to the time when the child representative addressed me today.
As far as S is concerned, the child representative advised me that Ms Langley (or another of the teachers at the school) confirmed that she has certain learning needs. She internalises her feelings, does not interact with other children and appears to act as if she is not aware of what is going on around her. This is in contradistinction to the behaviour of her brother — who acts out, as it were.
The school has had discussions, at different times, with each of the parties. The school has recommended that S repeat year 1. The husband, according to statements made by the child representative that were not objected to by either of the parties, did not accept that recommendation. His view is that the child should continue to year 2 — notwithstanding the recommendation of the school — because of social reasons. That is not an unreasonable approach for a parent to take. But the reality is that the school (being the school that the husband presses this court to order that the child attend) has made a clear recommendation. I have no doubt that that recommendation would have taken into account social factors in the way that the husband appears to have done. The school itself nevertheless concluded that a repeat of year 1 is appropriate for the child. Again, nowhere in the husband's material do I read that this recommendation has been made by the school. Nor am I apprised of the husband's reasons for his decision not to accept the recommendation.
Clearly both children are encountering educational and, to an extent, social difficulties at the school that they attended until the end of 2003. Quite why that is the case I cannot determine at an interim hearing such as this. I would need far more evidence to enable me to reach any sort of sensible conclusion in relation to a matter of that nature. But it is enough to record the matters which were drawn to my attention by the child representative.
The child representative also spoke with the report writer, Barbara Fraser. At the last hearing I raised with counsel the recommendation made by Ms Fraser in her report (which is to the effect that the children should reside with the wife on a full-time basis) and as to whether that was a recommendation which was to apply to an interim hearing such as this or a recommendation that should apply in only the final hearing. That was a question which the child representative asked of Ms Fraser. I was advised by the child representative that Ms Fraser is well aware that the proceedings before me today are interim proceedings, and that, notwithstanding that fact, Ms Fraser's recommendation remains the same; in other words, that the children should reside with their mother on an interim basis.
According to the child representative, Ms Fraser's view is that the relationship between the mother and the children is critical for their development. The report writer is of the view that the mother has better skills at handling the children, and is better able to cope with them. The view of the report writer in relation to the change of school is that it is unlikely to adversely affect the children to such an extent as to prevent an order for interim residence in the wife's favour. The expression that I have written down (and as emphasised by Mr Hutchins for the wife) is that parental involvement is more important than school intervention when dealing with the sorts of problems that these two children are exhibiting.
Mr Williams for the husband has criticised Ms Fraser's report. In particular, he criticises the conclusion reached in paragraph 88 which, according to him, is not sufficiently justified. There is much to Mr Williams' argument in that regard. I have read the whole report, including the passages commencing at paragraph 82 under the heading "Conclusion". The principal reason given by the report writer for the children to reside with their mother is the fact that she had primary responsibility for their care prior to separation. That is the only reason given in paragraph 88. But a careful reading of the report reveals that there were other matters that were important to the report writer.
The issue of the party with whom the children are to live is a matter to be determined by this court, and not by the report writer — although the report writer's opinion is a matter that the court can take into account and weigh in the balance. Ms Fraser has not dealt with all the factors under section 68F(2) of the Family Law Act. The court must deal with those factors in due course at the final hearing, and to a lesser extent, in this hearing. Nevertheless, Ms Fraser observed the children with each of the parties, and described the children's behaviour at that stage.
Extraordinarily in a report such as this, one reads in paragraph 75 that at the time that J and S were being observed with the husband J, as he put it, "tested his reflexes" and hit his sister. The husband appears to have dealt with that action in an appropriate manner. But that incident was clearly considered relevant in the report writer's conclusions. In paragraph 85 the report writer says:
(The wife) demonstrates a sound understanding of her role and seems committed to continuing to provide positive and constructive parenting to both children. She appears most attentive to her children's individual needs and has clearly developed some effective parenting responses. She seems particularly effective in establishing leadership and boundaries with J, who it seems requires constructive and structured leadership at times. The reports of J's behaviour at school are concerning and indicate the need for firm behaviour management alongside emotional support and education. (The wife) demonstrated her capacity to provide that and from my observations J demonstrated his responsiveness to this type of parenting from his mother.

The report of J's behaviour as described by Ms Fraser was not as concerning as the behaviour relayed to me by the child representative today. In my view, it is very important indeed that these children be placed — as soon as possible — with the party who can best and most effectively manage their behaviour, and all other aspects of their care.
In paragraph 86 the report writer said:
(The husband) demonstrates positive parenting skills as well, but seems less able to articulate his children's individual needs. While it seems that (the husband) has always maintained an active presence in the children's lives, his work outside the home seems to mean that alternative care such as after-school care and his extended family will be a permanent part of the arrangements for J and S and thus (the husband) will potentially have less control over the type of care received by the children. (The husband's) preference is for the children to attend Eltham College because it is the only school they have known (and it is) understandable from the perspective of his wish for continuity in other aspects of his children's lives — not just school, but family, home, neighbourhood and his extended family — given his strong connection with his own family. However, from my observations and understanding it is unlikely that J and S will experience long-term negative consequences if a process of relocation is managed thoughtfully by the adults involved.
In my view, those passages are of considerable significance at this stage of the proceedings.
To return to Cowling, in paragraph 22 the Full Court said:
…where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child's stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child's welfare to the contrary. Such indications would include but are not limited to convincing proof that the child's welfare would be really endangered by his/her remaining in that environment.
As I have already indicated, the evidence now before me does not clearly establish that the children are living in an environment in which they are well settled. Since May 2003 they have been living in an environment which, in the broadest of senses, is anything but settled. They themselves are well aware that the arrangements for their future care may be different from the current arrangements.
A careful reading of paragraph 22 of Cowling indicates that the child's stability will usually— not invariably — be promoted by the making of an order which provides for the continuation of the arrangement. As well, the Full Court has said that one does not have to demonstrate both strong and overriding indications relevant to a child's welfare. That which must be demonstrated is either strong or overriding indications relevant to the child's welfare, such as to cause a court to conclude that an environment in which a child is indeed well-settled should be altered.
In my view, the current environment is anything but settled. But even if it were, my view is that there are indeed strong indications relevant to the children's welfare to support a conclusion that the children should be removed from that environment. In no sense do I approach this exercise from a negative point of view. In no sense is anything that I am saying today intended to infer that either parent is an "unfit" parent, or has acted inappropriately. But the court must deal with the evidence as it finds it — and the evidence of the school through Ms Langley and the recommendations of Ms Fraser are powerful arguments in favour of an order to the effect that the children should continue their schooling at a place other than Eltham College, and in the care of the wife. That is not to say that the husband is unfit in any way. He is not. But the choice that the court must make is between the husband and the wife.
Mr Hutchins suggested at the conclusion of his submissions that the real risk (to the children's best interests) in this case — if one is to describe it as a risk — is to leave them in the current school with the current arrangements. It is less of a risk, as submitted by Mr Hutchins, to place them in the care of the person recommended as the principal caregiver by Ms Fraser than it is to leave them in circumstances where, with another academic year to pass before this matter comes to trial, their behaviour, their learning problems and the other difficulties that they face may grow worse or be exacerbated as the case may be. There is merit in Mr Hutchins' submission in this regard.
In paragraph 23 of Cowling the Full Court said:
…the Court is entitled to place such weight upon the importance of retaining the child's current living arrangements as it sees fit in all the circumstances. In determining what weight to place upon that factor, it is appropriate for the Court to take account of the circumstances giving rise to the current status quo. In particular, the Court may examine the following issues: whether the current circumstances have arisen by virtue of some agreement between the parties or as a result of acquiescence; whether the current arrangements have been unilaterally imposed by one party upon the other; the duration of the current arrangements and whether there has been any undue delay in instituting proceedings or in the proceedings being listed for hearing.
I have already reviewed the history of these proceedings, and the movement of the children between their parents.
The current arrangements have arisen not by way virtue of some agreement, or even as a result of acquiescence, but in an ad hoc manner. The final arrangements for the care of the children have been, as I described earlier, in limbo since approximately May 2003. Various events have occurred since May 2003, including an event which does the wife little credit — namely, the fact that she retained the children after the holidays at the end of third term last year. But, at the end of the day, the question of the weight to be placed upon that event and the children's current arrangements is one for this court to determine in all the circumstances.
I conclude that although weight must be given to the fact that the children have attended Eltham College from their father's home — when they have attended Eltham College — since May 2003, other factors that are relevant in this case should be given greater weight.
In paragraph 24 of Cowling the Full Court said:
Where the evidence does not establish that at the date of the hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in s.68F(2) needs to be undertaken to ensure that the result embodied in the order promotes the child's best interests. In undertaking that evaluation, regard must be had to the interim nature of the proceedings and the procedure referred to in C and C (supra).
That procedure recognises the fact that interim proceedings do not ordinarily involve oral evidence and cross-examination, and should be determined on the affidavit material provided to the court.
In paragraph 25 of Cowling the Full Court said:
in determining whether, at the date of hearing, a child is living in a settled environment, consideration should be given, inter alia, to the following: the wishes, age and level of maturity of the children.
That has been dealt with in the interim report, and has already been discussed in these reasons.
The next factor is the current and proposed arrangements for the day-to-day care of the child.
The wife's case is to the effect that she will be available on a full-time basis to care for these children.
The husband's case is that he will not be available on a full-time basis to care for them. He conducts his own business, but he can structure his time and his work hours to suit himself — but work he must, and, it would appear, he will. The vicissitudes of life are such that there will almost certainly be times when the husband's work commitments will impinge on his ability to provide focused care for the children at specific times. That is an inference that I draw from the evidence before me and it is an inference that I draw as a result of statements made by the husband's parents in their affidavit material. In the past, there was a time when the husband had no alternative but to leave the children in the care of his parents.
The husband has re-partnered, so has the wife. In my view, there is no criticism that can fairly be levelled, at this stage, at either of the parties' present partners. Both are suitable caregivers for these children. I give little weight, I might add, to the self-serving statements of the husband's partner in her affidavit, the self-serving statements of the husband's parents in theirs, and the husband's own self-serving statements. I would add I also give little weight to the wife's self-serving statements.
Clearly, the husband has support. But having regard to the peculiar needs of these children — as conveyed to me by the child representative, and as described or referred to by Ms Fraser in her report — the wife's availability to provide full-time care for these children is an important factor.
The court is obliged to look at the period during which the children have lived in a particular environment, and I have already spoken of that factor.
Whether the children have siblings, and where they reside, is not a relevant factor in this case. The reality is that the children are together and will remain together, whether it be in the care of the husband or in the care of the wife.
The next factor is the nature of the relationship between the child and each parent and any other significant adult, and his or her siblings. This is dealt with in Ms Fraser's report. Insofar as the relationship between the children and the parents are concerned, I have already referred to certain passages in which that matter is discussed. The relationship of the children with the parents' partners is also dealt with in the material which has been provided to me. In my view, there is no evidence which would suggest that the children have other than an appropriate relationship with each of the other significant adults in their lives. Those adults include, of course, the husband's partner, the wife's partner, and the husband's parents. The wife says that the children have a good relationship with her parents and also with other relatives who reside near to where the wife now resides.
Mr Williams (on behalf of the husband) queries the absence of affidavits from those witnesses, but it is fair to infer, in my view, that the children's relationship with those parties is a good one. There is no evidence to suggest that it is not. The husband did not put that matter directly in issue. I note from the material, as well, that S has her first cousin residing very close to her in the Yarrawonga area — a child to whom S appears to be close (according to the wife's case). It was not disputed by the husband that this child attends the same school. Having regard to the social and developmental problems that S is facing, it seems to me that that is an important factor in this case.
I have regard, as well, to the fact that the school that the children currently attend recommended that S be kept back. If that recommendation had been accepted and followed, then it would necessarily have meant that S would have been required to establish new friendships within a different year group. Perhaps it is for that reason that the husband did not wish to accept the recommendation, but it is the recommendation of the school — and this is the school that the husband urged the court to identify as the school that the children should continue to attend.
The last factor, and it is an important one in the context of this case, is the educational needs of the child. The wife does describe in her affidavit — to some extent, but with little detail — the educational facilities of the school that the children will be attending in Yarrawonga. There is no evidence which would suggest that those facilities will be inadequate to meet the needs of these children. In any event, it is my view, taking into account of all of the evidence before me and drawing appropriate inferences from that evidence, that a change in the children's schooling is likely to be in their best interests. On the basis of the material before me, and having regard to the fact that until May 2003 the husband was perfectly comfortable with a week about arrangement (which involved the wife caring for the children for extended periods), and the fact that he has been comfortable with the children spending extended periods of time with the wife since then, there is no reason to conclude that the wife cannot properly care for the children at all times whilst they are with her.
I have no reason to suspect that the wife would not be able to take steps to ensure that the children's education is fostered in the best possible manner, and that their problems are dealt with appropriately. Indeed, the material provided on behalf of the wife and Ms Fraser's report indicates that the wife has considerable insight into the difficulties confronted by the children from an educational, behavioural and social point of view. On an interim basis, and doing the best that I can with the material provided to me, I conclude that she is capable of caring for the children in an appropriate manner on an interim basis.
I now refer to some of the factors raised by Mr Williams in his address to me. He argued that four matters were important, and then added some. One factor that was added was the fact that the children live in a comfortable home with their father. In my view, that is a factor of minimal importance in the context of this case. The evidence reveals that the wife also lives in a home which is more than adequate for the needs of the children. In any event, there has been no direct attack, as far as I am aware, by the husband on the physical arrangements that the wife has made for the care of the children.
Mr Williams argued that an important factor is the role of Eltham College in the children's lives, and the fact that they have attended that school since they commenced school. I have taken that factor into account. I weigh it in the balance. It is not an unimportant factor, nor should it be unduly minimised. But I have already dealt with the children's problems as encountered at that school — perhaps not as a result of anything that the school has done or not done, but encountered nevertheless. I have concluded that a change in school is likely to promote their best interests, not harm them. At the very least, this is a factor that is "neutral" overall.
Mr Williams also argued that the court ought not to be confident of the wife's willingness to comply with court orders. In my view, there is no proper foundation for that submission. As I indicated earlier, the arrangements for week about residence had ceased to adhere in the middle of 2003, and other arrangements took over. I have taken into account the wife's actions in retaining the children unilaterally, and in enrolling them in a new school, and I weigh these actions in the balance. Nevertheless, in my view, the other factors outweigh that factor. I am not prepared to find that the wife is likely to fail to comply with court orders. If she were to fail to comply with these interim orders, then I will deal with her appropriately when and if the time comes — because these proceedings are docketed to me, and any contravention application will come back before me. There may well be serious consequences from the wife's point of view if a contravention is proved, including (perhaps) a change of interim residence.
The third factor raised by Mr Williams is the fact that the husband's parenting skills are allegedly not in issue, and that he is capable of caring for the children. I respond to that submission in this way: the report writer has concluded that the wife's parenting skills are perhaps of more assistance to these children than the husband's skills in that regard. I am concerned by the fact that steps have not been taken prior to now to deal with J's problems (or, indeed, S's problems). In due course, I will no doubt be told why the husband concluded that the recommendation of the school to the effect that S should repeat a year was not followed through.
The courts have said on many occasions that residence or custody cases are positive exercises designed to focus upon how best the welfare of children might be promoted. Such cases are not a negative exercise, designed to denigrate the other party or to belittle them in any way possible. The husband's affidavit material reflects a lack of respect for the wife, and in my view, an unreasonable attitude to various matters dealt with in the affidavit material. I understand that the affidavit was probably prepared on an urgent basis and my comment in this regard is a matter that will not, subject to full examination of all aspects of the matter at trial, form part of any final conclusion that I may reach in this case.
It is important to point out to both parties at this stage that they must focus on endeavouring to parent these children in a constructive manner and to work together for that purpose. Comments such as those made by the husband in his affidavit are of little assistance in that regard, and do more to exacerbate the situation than to ameliorate it. The wife should also be criticised for the various irrelevant matters that she has raised — for example, the allegation regarding marijuana. Not that that is irrelevant in itself, but the reality is that the wife has raised an issue that was most relevant prior to separation, and before she agreed to a co-parenting arrangement. Both parties need to now focus on the best interests of the children, and on constructive ways of ensuring that those best interests are promoted.
A fourth factor raised by Mr Williams was to the effect that the wife has not demonstrated that she is financially capable of looking after the children. I commented at the time, and I repeat now, that this is a factor that I simply do not understand. The wife received something in the order of $405,000.00 by way of property settlement, and has purchased a house for an amount that is not known to me. I do not know her overall financial position. But the reality is that if the children reside with the wife on a full-time basis, then the husband has the ability to pay appropriate child support for them. If he is a responsible parent, then that is what he will do — subject, of course, to the proper application of all of the principles and factors set out in the child support legislation.
In my view, there is no reason to conclude on an interim basis that the wife is financially incapable of looking after the children. The evidence is that her partner has commended a business, and in the report they appear to be saying that the business is progressing satisfactorily. I am not prepared to draw an inference that the wife is financially incapable of caring for the children.
For all those reasons, and subject to the qualifications which I made earlier regarding a possible amendment of the Reasons, I conclude that the appropriate orders are in effect that the wife have interim residence of the children.

I, Paul O'Halloran, certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate:

Date: 19 March 2004