W and Z
[2007] FMCAfam 772
•5 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & Z | [2007] FMCAfam 772 |
| FAMILY LAW – Parenting – spends time with – Family Report – high conflict. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Applicant: | W |
| Respondent: | Z |
| File Number: | SYC2248/2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 17 July 2007 |
| Date of Last Submission: | 17 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2007 |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr McDonnell |
| Solicitors for the Applicant: | McDonnell Milne Toltz Family Lawyers |
| Counsel for the Respondent: | Mr Maurice |
| Solicitors for the Respondent: | DGB Lawyers |
ORDERS
The parents have equal shared parental responsibility for the Children JW born 14 May 2002, LW born 8 July 2004 and CW born 8 July 2004 (“the Children).
The Children live with the Mother.
The Children spend time with the Father from the second weekend after the date of these Orders (or as the parties may otherwise agree) as follows:
(a)From 5.30pm on Friday to 5.30pm on Sunday, each alternate weekend.
(b)Each Father’s Day from 9.00am to 5.00pm if Father’s Day occurs on a weekend that the Children are not otherwise spending time with the Father.
(c)The Father’s birthday from 9.00am to 5.00pm, unless it is a school day, when the time will be between 5.00pm and 8.00pm.
(d)For the first week of the June/July school holidays.
(e)During the Christmas Holidays from 9.00am on 1 January to 6.00pm on 8 January in odd numbered years and from 9.00am on 8 January to 6.00pm on 15 January in even numbered years.
(f)From 12.00pm on 24 December to 3.00pm on 25 December in odd numbered years, and from 3.00pm on 25 December to 5.30pm on 26 December in even numbered years.
(g)Unlimited telephone communication between the Father and the children between 6.30pm and 7.30pm on evenings, the Mother to ensure that the answering machine is not engaged at this time when the Children are at home so that they might receive telephone calls.
(h)As otherwise agreed between the parties.
In the event that Mother’s Day falls on a day the Children are with the Father, then such time shall be suspended on the Sunday from 9.00am to 5.30pm.
In the event the Mother’s birthday falls on a day the Children are to spend with the Father, then their time with the Father is suspended from 9.00am on the Mother’s birthday.
In the event the Children’s birthdays are during their time spent with the Father then such time will be suspended from 6.00pm on the birthday of Child or Children until 9.00am the next morning.
For the purposes of the Father spending time with the Children, the Mother is to deliver the Children at the commencement of time to the Interrelate Contact Centre in S and at the conclusion of time spent with the Father the Father will return the Children to the Interrelate Contact Centre in S.
The Mother is to provide to the Father copies of all school reports and annual school photos within seven days of receipt by her.
The Mother provide to the Father details of any sporting activities in which any of the Children are involved from time to time, including soccer games.
The Father’s mother, partner and immediate family have authority to supervise or transport the Children in the event the Father is unavailable.
In the event the Father moves interstate he is to spend time with the Children as follows:
(a)The Children are permitted to travel to his home for the duration of the two-week school holidays in April and September/October.
(b)The Children are permitted to travel to his home for the first week of the June/July school holidays and during the Christmas holidays from 9.00am on 1 January to 6.00pm on 8 January in odd numbered years and from 9.00am on 8 January to 6.00pm on 15 January in even numbered years.
(c)The travel to the Father’s home to be supervised by the Father, his mother, or partner.
(d)Weekend time spent with the Father From 5.30pm on Friday to 5.30pm on Sunday, continuing from six weeks after the Father moves interstate, such time to be spent at the Father’s partner’s mother’s residence, namely 59 Grover Avenue, Cromer, New South Wales, then continuing once every six weeks thereafter, or as agreed between the parents.
(e)Changeover would continue to take place at the Interrelate Contact Centre in S.
(f)Children are to spend time with the Father at any other time as agreed between the parents.
The parents are hereby restrained from:
(a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the Children’s hearing; and
(b)Discussing any proceedings between the parents in the presence or hearing of the children or permitting any other person to do so; and
(c)Being under the influence of alcohol or intoxicating substances during time spent with the Children.
That in the event the parents cannot reach a joint decisions about:-
(a)a major long-term issue involving the Children; or
(b)the interpretation of these Orders; or
(c)the implementation of these Orders; or
(d)the enforcement of these Orders; which involve the children,
each of the parents will do all things necessary to participate in Family Dispute Resolution at the Family Relationship Centre in S.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Children or of the parties, each of the parents is to take the following steps:-
(a)the Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act; and
(b)the Father and the Mother shall each participate in Family Dispute Resolution at the Family Relationship Centre in S.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT W |
| W |
Applicant
And
| Z |
Respondent
REASONS FOR JUDGMENT
Introduction
J, L and C are the three children of W and Z. The children, who are aged five, three and three respectively, are caught up in the conflict between their father, who is the applicant, and their mother, who is the respondent. The parents are in dispute about how much time the father should be spending with the children. Their children are caught in the crossfire.
The father lives in a northern Sydney suburb, and the mother and the children live with the mother's parents in a suburb of W. The parents cohabited between 1999 and November 2004. Since separation it would be an understatement to describe the relationship between the parents as strained. Indeed, the evidence indicates that the conflict between the parents has extended to their respective families. The mother has a poor relationship with the paternal grandmother. The father has a strained relationship with the maternal grandparents. The level of trust between the parents is very low. The mother does not trust the father's ability to be able to provide adequate care for the children. The father believes that the mother is seeking to exclude the children from his life.
Background
On 27 March 2007 the parties entered into interim consent orders whereby J, the older child aged five, would spend time with his father each alternate weekend from 9.00am Saturday to 5.00pm Sunday. As a result of the same orders, the twins L and C aged three spend time with their father each alternate Saturday between 9.00am and 5.00pm. The parents cannot agree as to whether these arrangements have gone well.
Despite this unfortunately high level of conflict between the parents, when the matter proceeded before me it was clear that the common ground between the parties was that the children would primarily live with their mother, that they would each have shared parental responsibility, and that they should avoid coming into direct contact with each other at changeover.
The father, who was the Applicant, sought orders that he have time with the children each alternate weekend from Friday, 5.30pm until Sunday 5.30pm, with the changeover to take place at a contact centre operated by Interrelate at S. The orders sought by the father at the hearing correspond with the recommendations contained in a Family Report dated 6 June 2007.
The mother sought orders providing for a gradual increase in time between the father and the children but culminating, in the case of J, in time with his father between 9.00am Saturday and 5.00pm Sunday each alternate weekend. In the case of the twins, it would be
9.00am to 5.00pm each alternate Saturday for 12 months, and thereafter 9.00am Saturday to 5.00pm Sunday on alternate weekends. The mother proposes that the changeover take place at Centrecare in W as, she asserts, she is not able to transport the children to S.
Substantial and Significant Time: Applicable Law
From a legal perspective, the father's Application was for an order for substantial and significant time pursuant to s.65DAA of the Family Law Act. As the parties agreed that there should be an order for equal shared parental responsibility under s.61DA, I am required by the Act to consider whether substantial and significant time is reasonably practicable, and in the best interests of the children. The order sought by the mother is neither an order for substantial and significant time, nor equal time. The mother's submissions to me, through her counsel Mr Maurice, were to the effect that substantial and significant time was not reasonably practicable having regard to the ages of the children, the high level of acrimony between the parties, and the geographical distance that separates the parties. Whilst Mr Maurice did not go on to articulate this, I assumed his case was that even if I found that substantial and significant time was reasonably practicable, it was not, in the circumstances of this case, in the best interests of the children.
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of Time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce.”[1] Smyth refers to the notion of time as part and parcel of the “custody wars” between parents. He says about time at page 4: “Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Mother’s Concerns
The mother had a number of concerns in relation to the father, including his capacity to care for the children; his proposals to spend time with them; and the ability of the children to cope with time away from her; and with their father. In her evidence she alleged past instances of physical violence, regular alcohol abuse, and use of illicit drugs. She was particularly concerned about what she regarded as the father's lack of interest in seeing the children after separation and, in particular, the shorter periods of time that he spent with them compared to that which was arranged, and the occasions when he simply did not turn up at arranged times. She gave evidence about the distress suffered by the children at changeover, and the difficulty they experience in separating from her.
The difficulty with the mother's case, however, is that the evidence does not support her concerns about the father's past conduct and behaviour, or her concerns about his capacity to care for the children. Indeed, the evidence portrays the mother herself as a person who was unreasonably overprotective of the children; was an active participant and protagonist in the conflict between the parents and, directly and indirectly, through acts and omissions, contributed to the difficulties that the children experience in spending time with their father. The overall evidence regrettably created a somewhat disturbing picture of the mother who seemed to find it extremely difficult to put the needs of her children above her own needs, and failed to acknowledge the importance of the father in the children's lives. From the children's perspective, this is truly disappointing and one can only hope from their perspective that the orders that I make will be implement with minimal fuss, and with a willingness to put the past behind each of them, purely for the sake of J, L and C.
The Family Report
It is always difficult for a parent in a contested parenting case to be faced with a Family Report that presents a negative view of one parent, and makes recommendations that are then adopted by the other parent. The mother in this case was faced with such a report. It is easy to understand how the mother might regard the report as being a hostile one.
The Family Report dated 6 June 2007 was prepared in the usual way. The Family Consultant met with the parents, the children, the maternal grandparents, and the father's partner, Ms B. The Family Consultant also observed the interaction between the children and these parties. There was also a telephone discussion with J's preschool teacher, and the Family Consultant had available to her all of the documents filed in these proceedings as at 23 May 2007. The Family Consultant also had the advantage of meeting the parties at a child dispute conference on 23 January 2007.
It is very important to set out, and to seek to understand the mother's concerns in this case. Those concerns were expressed to the Family Consultant, and recorded at paragraph 11 of the Family Report.
Ms Z’s response is for the children to live with her and to spend one day every weekend from 9am until 1pm in the Illawarra area with their father. She further proposed that, provided Mr W can demonstrate his “commitment’ to the children and attend regular scheduled visits with them, the time that J spends with his father be modified to each alternate weekend from Saturday 9am until Sunday 5pm. She indicated that these changes would be based on her assessment of Mr W’s parenting and that she could not provide a timeframe for when the changes should occur. She proposed that C and L subsequently spend time with their father from Saturday 9am until 1pm each alternate weekend. She further proposed that the father be responsible for transporting the children and that changeover be at a Contact Centre in W. She further proposed that the children not be left unsupervised in the care of the paternal grandmother. She said that her response was precipitated by her belief that weekly scheduled visits between the father and the children would minimise the time that the children would have to go without seeing him, if he were to miss a visit, but that J should eventually return to spending an overnight with his father. She added that she has concerns about the impact that an alternate weekend arrangement would have on J when he commences school in 2008.
It is interesting to observe the dissonance between what the Family Consultant reports the mother proposed as at the date of the interview with the Family Consultant (24 May 2007), when compared to the orders she seeks in her amended response filed 23 March 2007. Not only was her proposal to the Family Consultant for a mere four hours between the children and their father one day every weekend, but it would not increase until the father could demonstrate to her, on a subjective basis, and with no discernible time frame, his "commitment" to the children. Having regard to all of the evidence, it was a completely unreasonable position for the mother to have adopted at that time.
Again, it is important to record in these reasons the mother's concerns in relation to the children spending time with their father, as expressed to the Family Consultant in the Family Report. The relevant paragraphs in this regard are paragraphs 21-29 of the report.
21. Ms Z (aged 37 years) presented as more able to contain her hostility towards Mr W than she had been in the initial Child Dispute Conference. She asserted that she would like the children to spend time with their father, but said that they are too young to spend overnights with him.
22. Ms Z reported that Mr W has a long history of failing to attend scheduled visits with the children or he has returned them earlier than they were required to be back at their mother’s home. She said that there is “no relationship” between him and the children and that she does not “see him as a father”. She explained that this is why she has enrolled J at pre-school with the surname Z. Ms Z was questioned about her reference to the children as “my children” in various emails and she replied “I did that because he did it first (referring to Mr W)”.
23. Various reasons underlying Ms Z’s proposal for the children to spend daytime only with their father were reported by her. She claimed that Mr W does not “accept responsibility” for the children and that he cannot cope with them for extended periods of time. She claimed that Mr W is unable to adequately discipline the children and that he uses J to communicate messages between himself and her.
24. Ms Z said that she is unsure about why J is currently refusing to stay overnight with his father. She said that J “clings” to her for days, and wets the bed, after spending time with him.
25. Ms Z claimed that C and L fluctuate in their willingness to spend time with their father. She asserted that she has attended a Parenting After Separation course and that she has implemented various strategies with the children, but added that she continues to tell the children that she misses them when they spend time with their father.
26. The conflict between various family members at changeover was reported by Ms Z to be progressively increasing. She attributed this to Mr W’s growing frustration in relation to the children’s reluctance to spend time with him. She alleged that Mr W and Ms B have verbally abused her in front of the children at changeover and that would prefer that it occur at a Contact Centre in future.
27. Ms Z reported that she had previously called Mr W a “liar” to the children and that she had not discouraged them from calling him “Stinky Pete”.
28. Allegations regarding Mr W’s drug and alcohol abuse were reported by Ms Z. She expressed the belief that he no longer consumes cannabis, but that he continues to use cocaine and Ecstasy, based on his appearance at changeover. She further expressed a belief that he continues to have a drinking problem because she has apparently smelt alcohol on his breath at changeover.
29. A desire for the children’s time with the paternal grandmother to be supervised was expressed by Ms Z, however, she said that she would prefer that the children not spend any time with her. She eventually said that she would agree for the children’s time with her to be supervised. She claimed that the paternal grandmother had been “suicidal” in 2004, but acknowledged that this does not currently impact on the children. She further claimed that the paternal grandmother has an inoperable heart condition that Ms Z believes makes her vulnerable to collapsing when the children are in her care.
It can be seen that the mother expressed quite serious concerns. If these concerns could be established or corroborated by the evidence, or some part of it, including the Family Report, one could readily understand the mother's concerns. Fortunately for the children, however, the mother's concerns were not established by the evidence.
One of the most disturbing parts of the Family Report was the Family Consultant's record and observations of her meeting with the mother's father, ie the maternal grandfather. These observations are found at paragraphs 30-32 of the report.
30. Mr Z (maternal grandfather) (aged 52 years) presented as a thoughtful man who expressed a belief that the current parenting arrangements should continue and that C and L should not spend overnights with their father until they “know him better”. He added that J should spend one week with his father every school holidays. He said that Mr W has failed to utilise the time that he has been offered with the children and that Ms Z has never prevented him from seeing the children. He reported that J initially enjoyed spending time with his father, but that he has recently refused to go with him to Sydney. He said that the children have significant difficulties separating from their mother after spending time with their father.
31. A belief that the conflict between the parents is lessened by his presence at changeover was expressed by Mr Z. He said that both parents are “as guilty as each other” and that Ms Z has said “some stupid things that aren’t true”. He added that Ms Z was “poisoning the children’s minds and saying things about Pete”, but that she has not done so for approximately one year. He said that the children have witnessed considerable conflict between their parents and that this could be contributing to J saying that his father is “bad”.
32. Mr Z reported that he has a good relationship with Mr W, despite him being “arrogant”. He said that he has not witnessed any evidence to indicate that Mr W has a drug and/or alcohol problem. He added that he has no concerns in relation to the paternal grandmother and the children and expressed a belief that the difficulties between Ms Z and the paternal grandmother are due to “personality clashes”.
I found paragraph 31 particularly disturbing, if it is an accurate record of what was said. If paragraph 31 is an accurate record, it presents a rather sad reflection on the mother, provided by her own father.
The Family Consultant also met with the children. Regrettably, there are also disturbing aspects of these observations. For example, at paragraphs 40 and 41 of the Family Report, the Family Consultant observes as follows:
40. J (aged 5 years) appeared sad during the Family Report interviews and immediately reported that his mother had told him that “Peter’s trying to take me away, really far away”. He said that his mother had told him that his father, the paternal grandmother and Ms B are “bad and they tell lies”. He said that his parents fight at changeover and that they “hurt each other by talking”. He said that this makes him cry and that he hides in front of his mother’s car. He described his father as “cross” and his mother as always saying “no” to his father.
41. J reported that he would, at times, like to see his father more but that he also wants to stay with his mother. He said that he worries about his mother because she cries when he leaves to spend time with his father and that she does not want him to go. He said that he is “afraid” to go to Sydney with his father, but that he would not be afraid, and more likely to go, if his siblings went with him. He said that it would be “good” to spend each alternate weekend with his father and siblings in Sydney.
One would hope that even a layperson reading these paragraphs would be able to discern the enormous pressure that is being experienced by J as a result of the conflict between his parents. J's reports about what his mother had told him, and the worries that he has about his mother, are truly disconcerting.
Paragraphs 44-46 of the report fortunately tend to indicate that C and L are not nearly as caught up in the parental conflict as is J.
As is usual, the Family Consultant observed the interaction between the children and both parents. The Family Consultant's observations in this regard are contained at paragraphs 47, 48 and 50:
47. Informal observation during the day of Family Report interviews showed that J and C displayed a preference for spending time with their father.
48. J, C and L were observed in interactions with their father. All three children sought close proximity to him and made statements throughout the observation such as “Daddy can you come over here?”. Mr W engaged the children in imaginary play and alternated his attention between them. The children appeared comfortable in his presence and excited to be spending time with him.
50. J, C and L were observed in interactions with their mother. Ms Z continually asked the children if they were tired and suggested that they return home during the Family Report interviews for a sleep. The children repeatedly advised their mother that they were not tired and they continued to play. Ms Z engaged the children in imaginary play, but the children became defiant with her and unable to co-operate with one another. Ms Z continually separated the children from fighting with one another.
The Family Consultant's evaluation is contained at paragraphs 52-61. Insofar as the issue is the children's time with their father, the relevant paragraphs are 52-56:
52. The parents and extended family members have actively exposed the children to chronic and visible conflict between them. This has had a significant impact on J and is likely contributing to his refusal to spend time with his father. Ms Z appears to find it difficult to promote Mr W positively as a father to the children and this is probably further contributing to J’s difficulties with him.
53. The crucial consideration is for the children to be protected from witnessing future conflict within the family. This exposure has long term implications for their emotional and psychological development and J’s bed wetting behaviour is probably a psychosomatic problem that is related to the conflict between his parents. The inter-parental conflict has likely placed J in a situation where he feels he has to choose one parent over the other and he is probably attempting to resolve the inner tension that he is experiencing because of the conflict between his parents by rejecting his father. It would be beneficial for the children if the parents were not to come into contact with each other at changeover so as to minimise the potential for them to witness further inter-parental conflict between them.
54. The children are attached to their father and the siblings would benefit from spending significant time with him without being separated from one another. Alternate weekends would allow for the father’s involvement in a range of activities that are developmentally important to the children, such as bathing them and putting them to bed. There were no indications that the children could not cope with spending overnights with their father nor that Mr W would be unable to cope with their behaviours. The children would benefit from being able to separate more readily from their mother and Ms Z may benefit from counselling to address her own difficulties with separating from the children.
55. Ms Z is unable to acknowledge the children’s connection to their father and this has implications for the children’s ability to express their feelings to her. She appears to have exposed the children to her own emotional difficulties and this would likely exacerbate the children’s difficulties in separating from her. It is important that she protect the children from her own emotional problems because children who feel responsible for their parents’ wellbeing can feel burdened and distracted from normal childhood activities.
56. The maternal family has claimed that Mr W consistently fails to attend scheduled visits with the children. The validity of these allegations is unable to be determined in the current report and nevertheless, it did not appear to be a significant issue for the children. If this were to consistently occur as the children get older, this could cause false expectations for the children and result in a lack of trust of their father. If Mr W is utilizing J as a messenger, this could also be burdensome for J and place him in a difficult position.
It should be clear that the Family Consultant was critical of both parents for being part of the conflict that is so clearly adversely affecting their children, particularly J. However, in the Family Consultant's expert opinion it is not so much the children having difficulty separating from their mother, as it is the mother having difficulty separating from the children. The mother was acting in a clearly inappropriate fashion insofar as she failed to recognise the children's important connection to their father, and in embroiling the children in her own emotional difficulties. The Family Consultant was not concerned about the children’s capacity to deal with the proposed changes to parenting arrangements.
The Family Consultant's final recommendations are contained at paragraphs 62-69.
62. It is recommended that the mother and father have equal shared parental responsibility for the children.
63. It is recommended that the children live with their mother.
64. It is recommended that the children spend each alternate weekend with their father from Friday 5:30pm until Sunday 5:30pm.
65. It is recommended that changeover occur at Friday 5:30pm and Saturday 5:30pm at the Inter-relate Contact Centre at S.
66. It is recommended that the parents implement a communication book for the purposes of communicating information to each other about the children.
67. It is recommended that the mother provide the father with copies of all school reports and any other reports about the children’s progress.
68. It is recommended that neither parent be under the influence of alcohol or illicit substances 24 hours before and during their time with the children.
69.It is recommended that neither parent denigrate each other, or any extended family member, to the children or in the presence of the children. Neither parent should discuss adult issues or Court related information with the children.
As is apparent, the orders that the father seeks at the hearing are consistent with the Family Consultant's recommendations. I note that paragraph 65 refers to “Saturday”. Clearly this is a typographical error. The preceding paragraph, and the oral evidence of the Family Consultant indicates it should read “Sunday”.
Challenge to the Family Report
Both the mother and the father had the Family Report available to them for over a month prior to the hearing of this matter. That is plenty of time to read the report, analyse and consider its contents, and to seek appropriate legal counsel in relation to it. I have no doubt that each of the parents, who are more than competently advised in this case, were told that in accordance with well-established legal authorities the Family Report was an influential piece of evidence, but that ultimately it was the presiding judicial officer who decided what was in the best interests of the children, and not the Family Consultant.
The mother chose to conduct her case on the basis of a direct challenge to the report, rather than embracing its observations and recommendations. Thus, for example, the submissions made on behalf of the mother, and the relevant cross-examination of the Family Consultant, were all addressed at reducing the weight that might otherwise be given to the Family Consultant's evidence. For example, it was submitted that the weight to be given to the report was affected by the Family Consultant's preference for the father's version of facts notwithstanding the fact that she, the Family Consultant, was in no position (and did not even try) to adjudicate the same. The mother also contested the factual accuracy of some of the matters attributed to her. The Family Consultant was criticised for spending more time with the father, than the mother, and not allowing the mother to say things that she wanted to say. The Family Consultant was criticised for assessing the capacity of a supervisor (the paternal grandmother) without talking to her. Certain aspects of the husband's evidence about consumption of drugs and alcohol was put to her, and the Family Consultant agreed that she had dismissed those issues as being not relevant or important in the present context. She was challenged on some of the language that she used. I will not attempt to record every aspect of the cross-examination by the mother's counsel of the Family Consultant. Suffice it to say, by way of summary, that Mr Maurice was given the opportunity to, and did in fact ask the Family Consultant, every question that could be asked with a view to seeking to reduce the weight that might be attached to her evidence. It would be equally fair to say, however, that despite Mr Maurice's valiant efforts on behalf of his client in this regard, the Family Consultant's evidence not only remained intact, but in some respects was actually stronger because of more detailed explanation she was able to provide by direct reference to the notes she made during the meetings with the parties.
In discussing the weight to be given to the Family Report, it is important to record, and discuss, the evidence given by both the mother, and her father (the maternal grandfather) about the errors they allege the Family Consultant made in recording observations about them. For example, the mother was given the opportunity to explain her use of the word "commitment" in line 3 at paragraph 11 of the report. Her evidence in this regard was that, in effect, she meant to say it was not so much an issue about the father's commitment to the children, but his commitment to a schedule to see the children. In other words, the mother's evidence was not that the Family Consultant had recorded this incorrectly, rather it was a statement of what she meant to say.
The mother was given the opportunity to comment on the first two lines of paragraph 21 of the report in which the Family Consultant makes an observation about the mother being "more able to contain her hostility towards Mr W than she had been in the initial child dispute conference". The mother's evidence in this regard was that she was nervous, distressed, and that she did not recall an opportunity to speak very much at all at the initial child dispute conference. Again, I note that the mother's evidence does not dispute the Family Consultant's observation about her hostility, but rather seeks to explain it away.
The mother was given the opportunity to explain her comments at line 4 of paragraph 23 that the mother does not "see him as a father". The mother's evidence in this regard is that she meant to say that she did not witness behaviours that indicated that he was acting like a father. When given the opportunity to comment about the last sentence at paragraph 22 of the report, the mother agreed that she had referred to the children as "my children" but denied that she said that she was doing it because the father first did.
The mother pointed to an error in the second sentence at paragraph 24 which says that J wets the bed after spending time with his father. The mother gave evidence that, in fact, she said that he wets the bed before spending time with his father.
In relation to paragraph 27 of the report, she gave evidence that yes, on one occasion, she had called the father a liar in front of the children, but she explained that in context she was responding to something the children had said that their father had said about taking them away "from horrible people". She agreed that she had not discouraged the children from calling the father "Stinky Pete", but this was because, according to the mother, she had never heard them call their father this. (Notwithstanding this, I record at this point that I am satisfied from the evidence given by the mother, and her father, in cross-examination that the mother was well aware that the children called their father "Stinky Pete" because, at the very least, her own father had told her so. Her failure to discourage them under these circumstances reflects very poorly on her.)
There are other examples of the mother's evidence seeking to correct the Family Consultant's observations that are not relevant and therefore not set out.
Significantly, the maternal grandfather was also given the opportunity to give evidence about mistakes in the Family Report. He agreed in evidence that paragraph 30 was accurate. In relation to paragraph 31, he agreed in evidence that he had, indeed, said that both parents are "as guilty as each other". However, he denied that he had indicated that his daughter had said "some stupid things that aren't true". His evidence is that he said to the Family Consultant words to the effect: "The first casualty in war is truth. Both of them have said stupid things that were untrue. What they were saying was wrong." Moreover, the maternal grandfather denied that he said that it was his daughter who was "poisoning the children's minds and saying things about Pete". The maternal grandfather insisted that he was merely repeating what it was that the father was saying to him. The maternal grandfather, in evidence, explained that the reference to "Stinky Pete" was a reference to a character from the children's movie Toy Story.
These are quite significant discrepancies which, if established, would cause me to be seriously concerned about the accuracy of the record made by the Family Consultant during the interviews, and therefore the weight that I should give to her observations.
The difficulty for the mother's case is that each of these alleged inaccuracies was carefully and meticulously put to the Family Consultant in cross-examination. For example, the Family Consultant explained that the reference in paragraph 21 to the mother's "hostility towards Mr W" was based on her observation that the mother was angry to the father, hostile towards him, would clap sarcastically, and would laugh at what he said.
Significantly, in relation to paragraph 31 dealing with the record of what the maternal grandfather said about his own daughter, the Family Consultant specifically consulted her notes and confirmed that it was a verbatim quote of what the maternal grandfather had said.
The Family Consultant was very firm and clear in her cross-examination about paragraph 31 to the effect that the maternal grandfather said it was his daughter who said "some stupid things that aren't true" and that it was his own comment that his daughter was "poisoning the children's minds". Indeed, by referring to her notes, the Family Consultant was able to give evidence that the maternal grandfather had specifically said to her: "Linda was poisoning the children's mind" and that almost immediately afterwards the maternal grandfather had said to her words to the effect: "Maybe that is a strong word", and he gave the impression to the Family Consultant that he wanted to resile from those comments.
There was a broader attack on methodology made in submissions, and that was to the effect that the Family Consultant was operating from a framework that equal time or substantial and significant time was the desired outcome, and she was looking for any reasons why either should not take place. I find there to be no basis for this submission. When the Family Report is considered in the context of the evidence given at the hearing I was left in no doubt that the Family Consultant believed that her recommendations reflected what was in the best interests of the children in a positive sense, and was not a default position.
Conclusion about Family Report
I had the benefit of reading the evidence of, and hearing oral evidence from and then seeing each of the mother, the maternal grandfather, and the Family Consultant cross-examined. I am left in no doubt whatsoever that the Family Consultant's record and observations is accurate and to the extent that either the mother or the maternal grandfather's evidence conflicts with that of the Family Consultant, the Family Consultant's evidence ought to be preferred. Specifically, I find that the maternal grandfather had, in fact, told the Family Consultant that his own daughter had said "some stupid things that aren't true" and that his own daughter was "poisoning the children's minds and saying things about Pete". I accept the honesty of the maternal grandfather's comments. It is quite possible that once he realised the implications of what he was saying, as his comments were necessarily adverse to his daughter's own case, he probably wished that he had not said them.
I record that in my opinion the maternal grandfather was truly motivated by trying to do the best thing for his grandchildren whom he loves at least as much as his own daughter. There was no error of judgment on the part of the maternal grandfather. Indeed, if there was an error of judgment of a serious magnitude it was that of the mother who failed to take the repeated opportunities I gave to her to settle this case as the evidence progressed without my need to have to determine the matter on the basis of the evidence, and in accordance with the law. Her continuation of this case after the evidence of the father, the Family Consultant and the maternal grandfather had been given, demonstrated an extraordinary lack of insight on her part.
The Family Consultant's observations about the mother as being one who was unable to protect the children from her own emotional problems was an observation that was entirely consistent with the mother's evidence in this case and in her actions in failing to settle this case when the evidence was so clearly against her, and when proceeding to judgment would inevitably force the Court to make findings adverse to her. The continuation of these proceedings by the mother, after this evidence had come out, was a misconceived, self-indulgent frolic that demonstrated her insensitivity to the needs of her children, and even her own father.
The Family Report and the evidence of the Family Consultant, receives significant weight in this case. She dealt with all of the issues raised by the parents, recorded her observations and made appropriate recommendations.
There are other aspects of the evidence that I record in these reasons even though, as it turns out, they have no impact on the outcome and the orders I make.
Possible Relocation to Cairns
The father was cross-examined about the possibility of a relocation to Cairns. His evidence was that it was only an option and that he had no definite plans to move, but if he did move he proposed an alternate set of orders that enabled him to continue to see the children at his mother's home in Sydney's northern suburbs every six weeks, and for the children to travel to Cairns during school holidays. I accept the father's evidence that it is only an option and there are no definite plans to move. I was invited by both parties to make orders that cover the possibility of the father relocating to Cairns, and I intend to do so. The orders I make, however, will refer to a relocation interstate rather than specifically to Cairns.
Father’s Conduct
The father was extensively cross-examined about his own participation in the conflict between the parties, particularly at changeover. I am left in no doubt that the father contributed to this conflict, but I am satisfied that whilst he was an active participant, he was not the main protagonist. The father's behaviour with the maternal grandfather was quite inappropriate. The father agreed that the conflict at changeover was not improving, but I have determined that the best way to deal with this is to use the services of a contact changeover centre.
The father’s conduct in sending an email to the mother after the conclusion of the hearing provided an insight into his role in the conflict. By consent, the mother’s case was reopened to allow the email to be admitted into evidence. It is less than flattering of the father. Clearly he too needs to disconnect from the conflict for the sake of his children.
The father was extensively cross-examined about consumption of alcohol and narcotic drugs. I accept that he has partaken in various different forms of narcotic drugs, and the last occasion was three years ago when he tried cocaine. The father gave evidence that his previous behaviour was "something stupid you do in your youth" and that "three years is a long time ago". The evidence about the consumption of alcohol in recent times does not lead me to be concerned about the father's behaviour in this regard and his ability to care for the children. I also note that the Family Consultant considered the allegations about the father's drug and alcohol abuse as reported by the mother. In effect, the Family Consultant dismissed this as an issue in the case. In her cross-examination it transpired that the Family Consultant has had significant experience working with people who have problems with drugs and alcohol. In any event the father consented to an injunction that restrains him from drinking or taking drugs before spending time with the children.
Travel Arrangements
The mother gave evidence that she could not drive the children to S for the purposes of changeover because even though she presently has a car, she would have to sell it in order to meet part of the expenses of the litigation.
The mother was extensively cross-examined by Mr McDonnell about her finances. She agreed in cross-examination she still had a motor car. She agreed that as part of the property settlement she received $220,000 from the sale of the former matrimonial home as well as the car. In that same year she received a termination payment of $37,000 which formed a part of the total of $120,000 she earned that year from her work.
In addition, in November 2004 she had re-drawn from an account, $32,000. She was cross-examined about evidence she had given to the Child Support Agency about the figures that she had spent on these funds. She gave evidence that at one stage she had spent up to $50,000 in legal fees as represented to the Child Support Agency but, in fact, it was only $38,000. The evidence about payment of legal fees was somewhat confused but she admitted that she has probably under-estimated the amount of legal fees.
It was put to her that she does not need to sell her car to pay the legal fees, but her response was that she spent all of her money. That is; over $300,000 that she had received over the years. She explained that the money had been spent on living expenses, raising three children, "when there was minimal to no child support". When she was challenged about that last statement she indicated that it was from the period of separation to the following March that she had received no child support. She acknowledged that she now gets $1096.83 per calendar month and begrudgingly acknowledged that the child support is up to date.
She contributed $150,000 towards the costs of her parents acquiring a home. She agreed that her total legal fees in these proceedings were about $60,000 of which about $25,000 related to the children's proceedings.
The mother agreed that at the home she lives there are four cars; one belonging to her father, mother, her own and one her mother uses for her sister. Her assertion that she would not have transport available at all to assist with the care of the children was, with respect of her, somewhat hard to believe. She agreed she gets Centrelink Benefits of $515.00 a fortnight and $1000.00 a month from the father. Out of that paid her parents $1,500.00 per calendar month which was her contribution to all the living expenses, apart from a few things such as nappies. She agreed that she had $500.00 per calendar month for her own purposes.
I do not accept the mother's evidence that she will have to sell her car to pay her legal fees. In my opinion; equal shared parental responsibility includes the responsibility to participate in travel arrangements so that the children spend time with their father. This is also a clear demonstration to the children of her commitment to the importance of them having an ongoing relationship with their father. Hence her participation in the travel arrangements will be very much in the children's best interests.
The evidence about the mother's finances was confusing and I was left wondering whether it was entirely truthful, particularly as a result of the cross-examination of the maternal grandfather by Mr McDonnell, who would not acknowledge that his daughter gave him about $150,000.00 towards the purchase of the property. His evidence was that he never kept track of that money. Nonetheless, he anticipated that the money would be repaid between three and ten years time. He agreed there were four motor vehicles at the home. Whilst it was absolutely not possible for her to use his car, he couldn't see a problem with her using the car that he jointly owns with his own wife. This issue about non-participation in travel by the wife is not just nonsense in terms of inability to establish it from a factual basis, but again gives an insight into her attitudes towards parenthood.
Application of the Law
It was common ground that the presumption of equal shared parental responsibility (s.61DA) applied in this case. This meant that s.65DAA(1) applies, and I must consider either equal time or substantial and significant time. No one suggested that equal time was appropriate. It is clearly not in this case. The father’s application amounted to substantial and significant time for the purposes of s.65DAA(3), and his case was that this was both reasonably practicable and in the best interests of the children. The mother’s case was that is was not reasonably practicable for the purposes of s.65DAA(5), and in any even it is not in the children’s best interests based on s.60CC(2) and (3).
Section 65DAA(5) states:
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The father lives in Sydney and the mother and children in W. There is nothing on the facts of this case that makes the geographical location of the parents a significant impediment. It is certainly not impracticable because of this. Section 65DAA(5)(a) is not an issue in this case.
The high levels of conflict in this case, and the apparent communication difficulties, give rise to a consideration of the matters referred to in paragraphs (b) and (c) of s.65DAA(5). There is no issue of physical or financial capacity to comply with orders, including orders that involve travel. The only capacity issues are emotional ones. In the context of orders for the children to spend substantial and significant time with their father, it is the mother’s emotional capacity to implement the arrangement that is my main concern. As is evident from my comments above she is a woman who lacks insight into the impact of her behaviour on her own children. She seems extremely reluctant to accept the importance of the father to the children. There are clearly many unresolved emotional issues in her life. Her conflict with the father needs to end. She needs to move on emotionally in her life. There are aspects of the father’s behaviour that are equally worrying, but I am more confident that the end of this case, and establishing a workable set of orders that avoids direct contact between the parents, will obviate the concerns I have about him.
The concerns I have, particularly about the mother, do not prevent me from making the order for substantial and significant time provided they are in the children’s best interests. Provided the changeovers are managed, they will be protected from what has for them become a traditional flash-point of conflict between the parents. I am satisfied they will cope with the travel, and that they will be more than adequately cared for when with their father.
Is the proposed order for substantial and significant time otherwise in the best interests of the children? I believe it is for the following brief reasons:
a)On the facts of this case it is the best way for the children to have a meaningful relationship with their father: s.60CC(2)(a).
b)There is nothing in the evidence to give me concerns about the safety of the children whilst with their father: s.60CC(2)(b).
c)Having regard to the ages of the children, I put no weight on any views they have expressed on this issue: s.60CC(3)(a).
d)Whilst I have concerns about the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and their father, that is no reason not to make the order recommended by the Family Report, and sought by the father. Indeed, it is a strong reason for making the order: s.60CC(3)(c)(i) and (4).
e)The orders will not involve changes in their circumstances that they are unable to cope with, especially when the changes have the potential to reduce the overt conflict of the parents at changeover: s.60CC(3)(d). I am very conscious of the fact that the younger children have only had limited overnight time with their father. This is not a matter that seems to have concerned the Family Consultant, and it is not a matter that causes me concern either. The three children will be together, and the benefits of shielding them from the conflict between the parents at changeover is far greater than any adjustment they will experience in the move to overnights.
f)As discussed above, the proposed orders do not involve unresolvable issues of practical difficulty, expense or reasonable practicability: s.60CC(3)(e).
g)As discussed above, whilst I have concerns about the mother’s capacity to provide for the emotional needs of the children, in the context of her conflict with the father, that is no reason not the make and order for substantial and significant time: s.60CC(3)(f).
Conclusion
It is the sad reality that for most of their lives, J, L and C have been caught in the cross-fire of the conflict that exists between their parents. This must stop, for the sake of the children. The parents need to understand that the parents need both of them, and they need to feel free to love the other parent even when not with them in person. Both parents clearly love the children but they don’t seem to understand that if they do not stop the conflict, long after they themselves have finally moved on with their lives, the children they love will still be suffering the consequences.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Altobelli FM
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