WALDEN & COOPER - [2018] FamCA 595

FAMILY COURT OF AUSTRALIA

WALDEN & COOPER

[2018] FamCA 595

FAMILY LAW – CHILDREN – Parenting Responsibility – Where allocation of parental responsibility for the children was in dispute – Where the mother sought sole parental responsibility and the father sought equal shared parental responsibility – Where the Independent Children’s Lawyer supported an order for equal shared parental responsibility – Concluded the presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe the father engaged in family violence – Concluded the evidence otherwise demonstrates the children’s interests would be best served by the parties being vested with equal shared parental responsibility – Ordered that the parties have equal shared parental responsibility.

FAMILY LAW – CHILDREN – With whom a child lives – Where the parties agree the children should continue to live with the mother – Ordered that the children live with the mother.

FAMILY LAW – CHILDREN – With whom a child spends time – Where the mother sought a slowly graduating regime culminating in the children spending each alternate weekend and time during the school holidays with the father – Where the father sought a flexible arrangement to accommodate his work roster – Where the mother conceded the father poses no risk of harm to the children – Where the mother abandoned her proposal for the children’s permanent supervision whilst in the father’s care – Where the distance between the parties’ residences makes it impractical for the children to live with the parties for ‘equal time’ or to spend ‘substantial and significant’ time with the father – Where the children would benefit from a stable and predictable routine – Where a gradual expansion of time with the father is in the children’s best interests due to the eldest child’s anxiety about being away from the mother and the youngest child’s infancy – Ordered the children spend time with the father in accordance with a regime which culminates in each alternate weekend and school holiday periods.

Family Law Act 1975 (Cth) ss 4AB, 60CC, 61DA, 65DAA, 65Y

APPLICANT:

Mr Walden

RESPONDENT:

Ms Cooper

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Newcastle

FILE NUMBER:

SYC

5366

2017

DATE DELIVERED:

6 August 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

3 & 4 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Pigdon Norgate Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Levick

SOLICITOR FOR THE RESPONDENT:

Boyd Olsen Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ticehurst

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Newcastle

Orders

All former orders relating to the following children (“the children”) are discharged:
(a)X, born … 2010; and
(b)Y, born … 2015.
The parties shall have equal shared parental responsibility for the children.
The children shall live with the mother.
The parties shall take all reasonable steps to ensure the children spend time with the father:
(a)Until 30 September 2018, each Saturday from 9.00 am until 3.00 pm, commencing on the first Saturday after these orders.
(b)From 1 October 2018 until 31 January 2019, each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday, commencing on Saturday 6 October 2018.
(c)From 1 February 2019 and thereafter:
(i)During school terms, each alternate weekend from 5.00 pm on Friday until 5.00 pm on Sunday, commencing on the first Friday of each school term.
(ii)Subject to the father giving the mother not less than 60 days’ notice in writing, for a period of no more than 7 consecutive days in the Autumn, Winter, and Spring school holidays.
(iii)Subject to the father giving the mother not less than 60 days’ notice in writing, for a period of no more than 18 consecutive days in the Summer school holidays.
Orders 3 and 4 are suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day and with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in even numbered years, with the same arrangements in reverse in odd numbered years.
(b)Between 10.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.
Pursuant to s 65Y of the Family Law Act, the parties are each granted permission to take the children outside Australia for the purpose of holidays, provided such holidays fall within the periods when the children would be ordinarily living or spending time with the parties.
For the purpose of implementing Orders 3-5:
(a)The father shall collect the children from the mother at the McDonalds Restaurant at B Town, NSW when they are due to begin spending time with him; and
(b)The mother shall collect the children from the father at the Suburb C Railway Station, NSW when they are due to return to her care.
The parties shall take all reasonable steps to ensure the children communicate privately by telephone with:
(a)The father each Tuesday and Thursday at 6.30 pm, when the children are living with the mother, for which purpose the father shall telephone the children on the telephone number provided to him by the mother and the mother shall ensure the children are able to receive the father’s calls on that number at that time.
(b)The mother each Tuesday and Thursday at 6.30 pm, when the children are spending time with the father, for which purpose the mother shall telephone the children on the telephone number provided to her by the father and the father shall ensure the children are able to receive the mother’s calls on that number at that time.
(c)The parent with whom they are not then staying on the children’s birthdays at 6.30 pm, for which purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent and the parent with whom the children are staying shall ensure the children are able to receive the other parent’s calls on that number at that time.
Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party is restrained from discussing any of the allegations made by or against them in these proceedings with any staff member employed, or with any parent of a child who attends, at any day-care centre, pre-school, or school at which either child is enrolled.
Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.
Each party shall ensure the children regularly participate in each of the educational, sporting, cultural, and extra-curricular events in which the children are enrolled to participate.
The mother shall forthwith notify the father in writing of:
(a)The name and contact details of the school the eldest child attends;
(b)The name and contact details of the day-care centre and/or pre-school the youngest child attends; and
(c)The name and contact details of the doctors, psychologists, counsellors, or any other medical providers the children have attended since April 2017
The father is at liberty to attend the children’s day-care centres, pre-schools, and schools for events to which parents of students are ordinarily invited.
The parties are at liberty to provide copies of these orders to:
(a)The principal of any day-care centre, pre-school, or school attended by the children; and
(b)Any Australian passport or immigration officer.
Each party shall forthwith inform the other and keep the other informed, in writing, of their respective current residential address, mobile telephone number, and email address.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Costs are reserved for 28 days.
Any and all other outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walden & Cooper has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC 5366 of 2017

Mr Walden

Applicant

And

Ms Cooper

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The applicant father commenced these proceedings in August 2017, seeking orders in respect of the parties’ two young children under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The respondent mother then expanded the dispute to encompass the division of the parties’ property interests under Part VIII of the Act.
Presently, both aspects of the parties’ dispute remain unresolved, but the proceedings were bifurcated and the dispute under Part VII was separately listed for trial in July 2018. These reasons relate to only that part of the litigation.
Although the parties agreed the children should continue living with the mother, they disputed the circumstances under which the children should spend time with the father and whether they would share parental responsibility for the children.

Short history

The parties met in 2003, began cohabitation in 2004, and married in 2008.
There was some factual dispute about when they separated, but it is unnecessary to make any finding to resolve the dispute. The mother deposed they separated under the same roof in November 2016,[1] but the father alleged it was in March 2016.[2] They certainly remained living in the family home until April 2017, when the mother and children moved to the Region D to live with the maternal grandmother while the father was overseas pursuing his employment. The mother and children still live in the Region D with the maternal grandmother and the father still occupies the former family home in Sydney. A drive of some two hours duration separates the parties’ homes.
[1] Mother’s affidavit, para 2
[2] Father’s affidavit, para 7
Regardless of when the parties actually first separated, they both continued to occupy the family home and the father probably still helped care for the children around his work schedule. He was challenged about the truth of his assertion to the single expert that he sometimes cared for them alone, even overnight,[3] but he credibly adhered to his assertion and added he also took the children to school and day-care. The mother must have either agreed or acquiesced to those arrangements. Any expressed or implied denial of those facts by the mother is rejected as false.
[3] Single expert report, para 73
Once the mother finally vacated the family home in April 2017 her attitude changed. Initially, for a period of weeks, she refused to allow the father to see the children, even though she expressly agreed with him in writing only the month before that the children should continue to see him.[4] After several weeks she relented, but still only allowed the children to spend time with him for short periods each alternate weekend and only ever under her direct supervision.[5] That arrangement applied for the next six months or so.
[4] Mother’s affidavit, para 6, Annex A
[5] Single expert report, para 23
The father commenced these proceedings in August 2017 in the Federal Circuit Court of Australia. Interim orders were made in October 2017, with the parties’ consent, and the proceedings were simultaneously transferred to this Court for determination. The interim orders provided for the children to live with the mother and to spend supervised time with the father, which orders were the subject of compliance until the trial in July 2018.

Proposals

The father abandoned the orders set out in his Amended Initiating Application filed on 13 November 2017, though his final proposal was not much different. He sought and was granted leave to apply for the orders set out in the minute of orders he tendered at the start of the trial,[6] which he amended in minor respects during final submissions. Essentially, he wanted the parties to share parental responsibility for the children, the children to live with the mother, and the children to spend time with him at the different times he designates from month-to-month to suit his changing work roster. His work roster is fixed on a monthly basis, under which his work commitments regularly vary, and he expected the mother and child to flexibly adapt to his roster on relatively short notice.
[6] Exhibit F1
The mother resiled from the orders set out within her Response filed on 5 October 2017 and significantly re-caste her case by abandoning her proposal for the children to be permanently supervised with the father. That occurred at the commencement of the trial,[7] but she made further concessions as the evidence unfolded. She sought and was granted leave to apply for the orders set out in the amended minute of orders she tendered at the commencement of final submissions.[8] Essentially, she wanted sole parental responsibility for the children, the children to live with her, and the children to spend time with the father, but only under a slowly graduating regime which does not culminate until early 2021, nearly three years hence. Even then, the children’s time with the father would be constrained to alternate weekends (Saturday morning until Sunday mid-afternoon) and weekly rotations in school holidays. She did not envisage the children spending one-half of the Summer school holidays with the father until December 2023, when the youngest child attains eight years of age.[9]
[7] Exhibit M1
[8] Exhibit M5
[9] Exhibit M5, Orders 2.5.2, 2.5.3
The Independent Children’s Lawyer commendably announced her formative view before the trial started. She contended the parties should have equal shared parental responsibility for the children, the children should live with the mother, and they should spend time with the father, which should involve immediate dispensation of supervision and graduate to alternate weekends in school terms and block periods of school holidays. The precise nature of her proposed orders was revealed by the minute of orders she tendered at the commencement of final submissions.[10]
[10] Exhibit ICL1
In view of the positions belatedly adopted by the parties, the essential issues for determination were:
(a)The way in which parental responsibility for the children should be conferred; and
(b)The manner in which the children will spend time with the father into the future, which encompassed separate disputes about whether the contact regime should graduate, (and if so) the rate at which it will incrementally expand, the nature of the contact regime at its culmination, and the extent to which the regime should be sufficiently flexible to accommodate the father’s work commitments.

Evidence

The father relied upon:
(a)His affidavit filed on 13 June 2018 and the annexures to it, which were separately tendered as an exhibit;[11] and
(b)The affidavit of the paternal aunt filed on 13 June 2018.
[11] Exhibit F2
The mother relied upon:
(a)Her affidavit filed on 13 June 2018; and
(b)The affidavit of the maternal grandmother filed on 14 June 2018.
The parties and the Independent Children’s Lawyer relied upon:
(a)The Memorandum prepared by the Family Consultant on 18 October 2017; and
(b)The report of the single expert psychologist, Dr E, dated 18 April 2018.

Legal principles

Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests – primary considerations

Section 60CC(2)(a)

The parties agree the children should remain living with the mother, so the father must implicitly accept the children have meaningful relationships with her from which they derive benefit.
The children also appear to have meaningful relationships with the father, from which they derive benefit. The single expert observed the children in the father’s company in April 2018 and found them “extremely happy to see their father”. They were even more animated with the father than they were with the mother, which the single expert found surprising.[12] There is little doubt the eldest child has an anxious disposition, about which more is said later, but the single expert importantly saw no evidence of the eldest child experiencing any fear or anxiety with or about the father.[13]
[12] Single expert report, para 60
[13] Single expert report, paras 75, 122

The single expert concluded the children have “good” relationships with both parties[14] and the mother did not assert to the contrary. As a consequence, it is imperative that orders are made to maximise the children’s opportunity to maintain and enhance their relationships with both parties, subject to the maintenance of their physical and psychological safety.
[14] Single expert report, para 122

Section 60CC(2)(b)

The mother discussed with the single expert a coterie of her concerns about the risks of harm posed by the father to the children but, as the trial commenced, the mother’s counsel confirmed she conceded the evidence does not permit any finding that the children are at unacceptable risk of any harm in the father’s care for any reason. Accordingly, she then abandoned her long-held proposal for all future contact between the children and father to be permanently supervised, which substantially altered the complexion of the proceedings.
As a consequence of the mother’s concessions, it is now unnecessary to discuss the evidence directed to her various past allegations about the father’s impropriety, which might potentially have amounted to “family violence” or “abuse”, at least in so far as it might affect assessment of the children’s best interests under s 60CC(2) of the Act. However, the evidence still has implications for the applicability of the presumption that the parties should be conferred with equal shared parental responsibility for the children (s 61DA).
The mother’s concessions were hardly reconcilable with her proposal about the continuing tight constriction of the children’s future interaction with the father, which left him to wonder whether her concessions were simply an artifice and to speculate about her willingness to support the children’s relationships with him. The mother cannot have it both ways. If, for the purposes of the litigation, she concedes the father poses no risk of harm to the children then the orders specifying their interaction with him must reflect both the concession and the demonstrated importance of their relationships with him.

Child’s best interests – additional considerations

In the end, given the relative narrowness of the dispute, few of the features prescribed as “additional considerations” under s 60CC(3) of the Act were influential in the determination of the orders which promote the children’s best interests.
The children are too young and immature for their views, to the extent they expressed any, to carry any weight (s 60CC(3)(a)). The eldest child told the single expert he did not wish to see more of the father than he already does or to have their contact unsupervised,[15] but not even the mother relied upon the eldest child’s views. She agreed the children’s time with the father should be expanded and the supervision should be dispensed with. The eldest child’s expressed views are most likely a product of his anxiety, which is yet to be discussed.
[15] Single expert report, paras 60, 61, 67
The nature of the children’s relationships with the parties has already been discussed under s 60CC(2)(a) of the Act and no further commentary is required (s 60CC(3)(b)(i)).
The children enjoy happy and warm relationships with members of the extended paternal and maternal families, about which there was no dispute (s 60CC(3)(b)(ii)).
It was not submitted either party had failed to avail themselves of opportunities to involve themselves in the children’s lives. The father wants to participate in decisions affecting the children, wants to see more of them than the mother allows, and wants to communicate with them more frequently than the mother allows (s 60CC(3)(c)).
The mother did not contend the father failed to fulfil, either entirely or partially, his obligations to help maintain the children (s 60CC(3)(ca)).
The road journey between the parties’ homes is about two hours in duration so there is some degree of practical difficulty and expense entailed in the parties’ exchange of the children (s 60CC(3)(e)), but the children and parties will still cope satisfactorily with the travel. Both parties and the Independent Children’s Lawyer envisaged the implementation of a contact program under which the children would be exchanged on alternate weekends and in school holidays. The frequency of changeovers and the changeover venues were not seriously in dispute. The contest was only about the duration of the visits.
It was common ground the parties each have the capacity to satisfactorily meet the children’s physical, emotional and intellectual needs (s 60CC(3)(f)).
Although now almost needless to say, the past sexual lifestyle and practices of the parties, unorthodox though they may have been, have no bearing upon their parenting capacity and are irrelevant (s 60CC(3)(g)).
The parties and children are not indigenous (s 60CC(3)(h)).
The most significant features of the evidence for the purposes of s 60CC(3) of the Act were the children’s anxiety about their separation from the mother (s 60CC(3)(d)) and the mother’s attitude to the children and the responsibilities of parenthood (s 60CC(3)(i)).
The eldest child is undoubtedly prone to anxiety. The mother described him as having a “clingy relationship” with her and, despite him now being eight years old, he still sleeps with her.[16] The mother said in cross-examination she is in the process of discouraging that practice, but she has not managed to cease it yet. The single expert believes the eldest child’s exposure to the parties’ “high levels of volatility” probably accounts for at least some of his timidity,[17] because he feels like he is the “meat in the sandwich”,[18] which opinions were not challenged and are therefore accepted as correct. The single expert considers the eldest child’s anxiety needs both “therapeutic support” and some reprieve from the parental conflict.[19]
[16] Single expert report, para 29
[17] Single expert report, para 37
[18] Single expert report, para 70
[19] Single expert report, para 69
The mother also presents as an anxious person. She told the single expert she found it “very hard to be away from the children”,[20] she was “quite worried” about the outcome of the single expert interviews and the litigation, and she remains concerned about her perception of the father’s behaviour. Nonetheless, she was unable to “explicate” any threat posed by the father and the single expert considered she was “pre-occupied” with her concern about him.[21]
[20] Single expert report, para 35
[21] Single expert report, para 49
The single expert linked the eldest child’s anxiety to the mother’s anxiety because the eldest child was “quite aware” of the mother’s concern about the youngest child’s safety while in the father’s care. The mother apparently told the eldest child the father would be “unable to care appropriately for [the youngest child]”. The single expert expressed his concern about that situation and concluded the mother had difficulty in placing “boundaries” around her anxiety and was “overly anxious”.[22] In other words, the mother is not insulating the children from her anxiety and in all probability it is heightening the children’s anxiety, though that process is apparently more pronounced for the eldest child than for the youngest child.
[22] Single expert report, paras 63-64, 115
Those opinions dovetail with the way in which the mother conducted the trial. Although she acknowledged the evidence could not prove the father posed any risk of harm to the children, she could not shake her concerns about the children’s safety with him and so she proposed a suite of orders which unreasonably constricted their future interaction. The single expert expressed his “concern” about the past and current restrictions upon the interaction between the father and eldest child,[23] which concern was logical and reasonable.
[23] Single expert report, para 122
While the mother may not deliberately do anything to damage the children’s relationships with the father, she encounters considerable difficulty in positively promoting the relationships. The eldest child is already cognisant of her worry about the father’s parenting capacity and, as the youngest child ages and matures, she will also develop an awareness of the mother’s anxiety about the father. Unless the children are immediately and regularly exposed to the father in ordinary living arrangements, free of professional supervision in public places over unduly short time periods, so they can experience normal filial relationships with and develop their own positive impressions of him, the mother’s anxiety will probably settle indelibly upon them and permanently impair their relationships with him.
The single expert’s advice to immediately dispense with the need for supervision and to then “move towards overnight contact” must surely be right.[24] The single expert said the overnight contact “cannot happen straight away” and a graduated program will be needed to accommodate the eldest child’s anxiety,[25] but in cross-examination the single expert said there was “no necessity for a long, drawn-out process”. The mother and, to a lesser extent, the Independent Children’s Lawyer erroneously proposed long, drawn-out processes.
[24] Single expert report, paras 129, 131
[25] Single expert report, para 129
The occurrence of family violence between the parties was ventilated at length in the evidence (s 60CC(3)(j)), but no family violence order has ever been made against either party (s 60CC(3)(k)). The parties’ evidence about the occurrence of conduct which might amount to family violence was irreconcilable. Most probably, neither party gave an entirely truthful account of past events in which they were involved. The mother’s reports of the father’s misconduct seemed exaggerated and the father’s denials of any misconduct at all seemed contrived.
The father’s veracity was impugned because he falsely asserted he had not had any “disciplinary problems” with his employer,[26] when in fact he has been investigated and admonished on several occasions for alleged episodes of misconduct.[27] His evidence about the state of his knowledge over his adult daughter’s participation in prostitution was also cagey and unreliable. While his adult daughter’s private life is of no concern, the reliability of his evidence in these proceedings certainly is.
[26] Single expert report, para 104
[27] Exhibits M2, M3, M4
The mother’s veracity was also impugned because she adduced evidence which implied the father’s aggressive attitude towards a neighbour helped prove his general tendency to act aggressively towards her,[28] but she was impelled to admit in cross-examination the neighbour was the provocateur and, at the time, she was fully supportive of the father’s stand against her. The mother even applied for her own apprehended violence order against the neighbour. The mother also told the single expert the father “forced” the eldest child to sail with him,[29] in an apparent attempt to help demonstrate the father’s tendency to bully others, but she then conceded in cross-examination she previously told the eldest child’s school staff that sailing was a family recreational activity in which they all found peace and enjoyment.
[28] Mother’s affidavit, paras 14-15
[29] Single expert report, para 28
The mother’s allegations the father “forced” her to work as a prostitute and to participate in a “swinging” sex scene with other couples during their marriage was inherently improbable.[30] Even if she perceived that the father demanded she do so, once she was in the company of another sexual partner away from his immediate presence, influence and control, she had no need to participate. Her engagement in sexual relations with other people, either for fun or profit, must have been voluntary. The mother ceased her prostitution work after about six months because she did not see it as a career,[31] so she was obviously free to decide when she stopped such work. The father’s suggestion she wanted to experiment is most likely true.[32] If the mother now regrets and is embarrassed by her experimentation, blaming him for it is an easy way to deflect self-blame.
[30] Single expert report, para 16
[31] Single expert report, para 44
[32] Single expert report, para 78
Nonetheless, there is probably a kernel of truth in the mother’s allegations of the father’s past irascible and domineering disposition. The single expert independently reached the same conclusion.[33] Most probably the mother does feel apprehensive, perhaps even fearful, of him and is cautious about how she deals with him. Most likely, some mild form of “family violence” was perpetrated by the father upon or towards the mother.
[33] Single expert report, paras 114, 116
The mother did not seek to use any finding of family violence to influence the determination about the orders regulating the children’s future interaction with the father. Rather, she only sought to use the evidence to displace the presumption of equal shared parental responsibility (s 61DA(2)(b)) and otherwise demonstrate her wariness of the father to explain why she would find it difficult negotiating with him (s 61DA(4)).
It was not contended that one form of orders is more prone than another to either avoid or provoke further litigation. The parties expect the orders now made will resolve the dispute between them, regardless of the form they take, and will not stimulate further litigation (s 60CC(3)(l)).
No other issue was contended to be relevant (s 60CC(3)(m)).

Conclusions and orders

The presumption of the parties’ investiture with equal shared parental responsibility for the children does not apply because the evidence affords reasonable grounds to believe the father engaged in “family violence”, in the widest sense in which that term is defined in the Act (ss 4AB, 61DA(2)(b)). In effect, the father submitted that any family violence which previously occurred was relatively innocuous, but that was not to the point because any form of family violence is sufficient to render the presumption of equal shared parental responsibility inapplicable.
Of course, the inapplicability of the presumption does not mean an order for equal shared parental responsibility cannot be made. It can, but the children’s best interests would then need to warrant an order to that effect. The father and Independent Children’s Lawyer both argued the children’s best interests did justify an order in those terms, which contention was supported by the evidence of the single expert. In cross-examination, the single expert acknowledged the parties find it a challenge to always be respectful of one another, but he said shared parental responsibility was an “important mechanism” for keeping parents meaningfully involved in their children’s lives.
In cross-examination, the mother was challenged with the single expert’s opinion and other facts germane to the exercise of shared parental responsibility, which elicited important concessions from her. She agreed:
(a)with the single expert’s opinion it is ordinarily desirable for parents to share parental responsibility;
(b)she had negotiated a contact regime with the father in March 2017, just before she vacated the former family home with the children,[34] so she must have felt able to negotiate with the father on relatively equal terms;
(c)there was no dispute between the parties about the school she chose for the eldest child to attend when she moved with the children to the Region D from Sydney in April 2017;
(d)in the period between April and October 2017, when she elected to personally supervise the children’s contact with the father, she made no complaint about any discourteous communication between them;
(e)there has been no past dispute between the parties about “major long-term issues” related to the children (and in particular, about their education or medical care);
(f)there are no current disputes between the parties about “major long-term issues” related to the children;
(g)she is unaware of any prospective disputes between the parties about “major long-term issues” related to the children;
(h)the parties have, in the past, successfully communicated by text message and used that medium to change arrangements in relation to the children;
(i)it would not be “too hard” to communicate with the father by email about the children, to which end she eventually proposed an order for the parties to swap email addresses;[35] and
(j)she expects, in future, to meet with the father to exchange the children on alternate weekends and will be able to greet him courteously.
[34] Mother’s affidavit, para 6, Annex A; Father’s affidavit, paras 68-69
[35] Exhibit M5, Order 11
The mother’s evidence that she “cannot” communicate with the father was really just another way of her saying she would “prefer not” to have to communicate with him. Her counsel submitted the parties had not demonstrated “the capacity to reach agreement on anything”, but the orders the mother finally proposed expressly contemplated her future communication with the father. She proposed the provision of email addresses and their communication in writing.[36] Surely such orders would not have been proposed unless the mother expected she could comply with them.
[36] Exhibit M5, Orders 11, 13
In circumstances where the mother prefers to exert unilateral control over the children, has trouble accepting the father as a parental equal, and probably does have the capacity to confer with the father sensibly and temperately in writing, the evidence suggests the children’s interests would best be served by an order investing the parties with equal shared parental responsibility for them.
An order for equal shared parental responsibility engages s 65DAA of the Act, but orders for the children to live with the parties for “equal time” or to spend “substantial and significant time” with the father are not practicable. The parties live too far apart. Not even the father proposed orders of that type.
The children will continue to live with the mother, about which there was no contest. The real question is when they should spend time with the father.
The mother and Independent Children’s Lawyer both submitted for the graduation of the regime under which the children spend time with the father. He wanted to begin an expansive contact regime immediately, but that was simply evidence of his “lack of insight and insensitivity” upon which the single expert remarked in cross-examination. The eldest child’s anxiety (about being away from the mother, as distinct from being in the father’s care) and the youngest child’s relative infancy are aspects of the evidence which point towards gradual expansion of their time with the father.
The single expert suggested that only fortnightly day-time visits should occur for the next three to six months before an escalation to overnight visits, which the mother took literally by her proposal to delay the introduction of overnights for the maximum six months. However, that ignored other aspects of the single expert’s evidence in cross-examination. He said “there is no formula” and that children adapt differently. The eagerness of at least the eldest child in the father’s company during the observation session with the single expert implies he will not need six months to adjust to overnight stays with the father. Although the youngest child is still only three years of age, she is apparently confident and there was nothing in the evidence to suggest she would not cope with single overnight visits within the next couple of months.
The orders therefore provide for the children to spend time with the father for six hours each week for the next two months or so. The visits then graduate to alternate weekends, commencing on Saturday mornings and concluding on Sunday evenings for another four months. Thereafter, the alternate weekend visits will start on Friday evenings and end on Sunday evenings.

There is no need to confine the children’s alternate weekend visits with the father, at least for an initial period, within a geographical area close to the mother’s home. The single expert made that suggestion, but it is rejected. The six-hour visits over the first few months will have to be exercised reasonably close to the mother’s home because there will be no time to waste driving the children far away. Once the alternate weekend visits begin, such confinement would condemn the father to the unnecessary expense of motel accommodation in the Region D. The children and father are likely to feel more comfortable and relaxed in the confines of the father’s home, which is the former family home.
For the alternate weekends, the father wanted the visits to start on Friday evenings. Although the mother proposed they start on Saturday mornings, she said in cross-examination she had “no problem” with them starting on Friday afternoons. On the other hand, the mother wanted the alternate weekend visits to finish on Sunday evenings. Although the father proposed they end on Monday mornings, he said in cross-examination he would “normally” return them on Sunday evenings. Sunday evening returns are best because, as the mother said, the children should not start their school week on Monday mornings with a drive of some two hours duration from Sydney.
The father did not want to lock-in the routine of alternate weekends during school terms because he could not be sure his work roster would always permit him to be free of work on the designated weekends. Instead, he proposed a regime under which, on a month-to-month basis, he would learn of his work commitments for the month ahead and then tailor the children’s visits with him around his shifts. He would decide when the visits occur and the mother and children would have to live with his decisions. The proposal only needs to be stated to appreciate its unsuitability. The mother and children should not be bound by the father’s desire to give primacy to his career over the reliability of routine. The father had no option but to concede in cross-examination that the children would benefit from a stable and predictable routine. The single expert logically said the time spent by the children with the father should be “regular and consistent”. Over the past 12 months, the father has disliked being dictated to by the mother, so why he thought he should be able to dictate terms to her over the next 15 years until the youngest child attains her majority was a question he could not sensibly answer.
The father also proposed an order which would allow him to unilaterally nominate some extra time the children should spend with him each month around his work roster,[37] which is rejected for the same reason of unpredictability.
[37] Exhibit F1, Order 6.5
The father has been subject to the same work roster system over the last 12 months and he has still been able to see the children every second weekend, so it is probable he will be able to continue keeping some time free each alternate weekend to spend with the children. True it is he may not be able to always keep the whole of each alternate weekend free of work commitments, but it could hardly be doubted the mother would accommodate the need for the children to spend less than the full measure of time with him on those particular weekends he is unable to keep completely free of work. Most probably, the father will be able to manage to see the children for most of every alternate weekend for most of the time. Despite some prevarication, his counsel accepted that finding was open on the available evidence.
The father initially proposed that the time the children spend with him should be dependent upon whether he remains employed in his current profession, but he abandoned that distinction in submissions because he accepted the reality of his intention to work in his current employment for the foreseeable future.
The block time spent by the children with the father in school holidays will commence in about April 2019 and be confined to periods of one week. Multiple weeks in the Summer school holidays will not start until December 2019. The single expert’s suggestion that it might be best to delay the youngest child spending more than one week at a time with the father until she starts school (which may not be until February 2021) is rejected as unduly cautious. The contact times within the school holidays cannot be inflexible because the father only has six weeks holiday each year and he may not be able to always ensure his holidays fall in school holiday periods. The children should spend approximately half of the school holidays with him, but that will depend upon his availability. The children cannot stay with the father if he is working because he has no-one else to care for them in his absence. The father will need to give the mother about two months’ notice of the school holiday periods he can manage with the children so she has time to make her own arrangements.
The parties, in the exercise of their equal shared parental responsibility, will decide the sports and other extra-curricular activities in which the children are enrolled to participate. The orders require the parties to ensure the children thereafter attend their sport and extra-curricular commitments while the children live or spend time with them. The eldest child plays soccer this current season and if he continues to do so in subsequent years, that may require the father to stay overnight in the Region D on Friday evenings of each alternate weekend so the eldest child can play games on Saturday mornings during the seasons from 2019 onwards.
The orders expressly permit the father to visit the children’s day-care centres, pre-schools, and schools on occasions when parents are ordinarily invited to attend. The mother agreed an order in those terms was appropriate.[38]
[38] Exhibit M5, Order 8
The father is dissatisfied with the operation of the interim orders for telephone communication between him and the children. He complained about it in his evidence-in-chief[39] and in cross-examination. The mother was not so explicit, but her dissatisfaction with such regular telephone communication could easily be inferred from her evidence. Nevertheless, they both proposed final orders for telephone communication,[40] as did the Independent Children’s Lawyer.[41] Since such orders were uniformly sought they are made, but only in accordance with the mother’s proposal for fewer telephone calls each week – two instead of four.
[39] Father’s affidavit, pars 122-123
[40] Exhibit F1, Orders 15, 16; Exhibit M5, Order 6
[41] Exhibit ICL1, Order 6
An injunction requires the mother to provide the father with information about the children’s school, pre-school, day-care centre, doctors and all other medical providers so he can use his equal shared parental responsibility to recover information about the children after they moved to the Region D in April 2017 and now, from this point on, remain abreast of information pertinent to them.
The father proposed an injunction restraining the mother from allowing the children to be left in the sole care of her step-father,[42] but the order is not made because the father conceded there was insufficient evidence to support it.
[42] Exhibit F1, Order 24.1
Several other orders sought by the mother,[43] father,[44] and Independent Children’s Lawyer[45] are not made because they were either not the subject of any discrete evidence or submission (in which event they would be arbitrary) or because they conflict with or would amount to an unnecessary gloss upon the orders which will be made for the reasons given.
[43] Exhibit M5, Orders 4, 5, 16, 17
[44] Exhibit F1, Orders 9, 10, 11, 12, 13, 14, 19, 21
[45] Exhibit ICL1, Orders 10, 11
The remaining orders set out at the commencement of these reasons are self-explanatory and could not be the subject of sensible controversy. In many instances they resemble orders mutually proposed by the parties and Independent Children’s Lawyer.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 6 August 2018.

Associate:

Date: 6 August 2018