Waltters and Waltters
[2007] FamCA 54
•9 February 2007
FAMILY COURT OF AUSTRALIA
| WALTTERS & WALTTERS | [2007] FamCA 54 |
| FAMILY LAW - CHILDREN - Substantial and significant time |
Legislation
| Family Law Act 1975 (Cth) S60B; S60CA; S60CC; S61DA; S65DAA; S65DAC |
| APPLICANT: | MR WALTTERS |
| RESPONDENT: | MRS WALTTERS |
| INDEPENDENT CHILDREN’S LAWYER: | LEGAL SERVICES COMM |
| FILE NUMBER: | ADF | 415 | Of | 2000 |
| DATE DELIVERED: | 9 February 2007 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 12-14 & 18 December 2006 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | N/A - Self-Represented |
| COUNSEL FOR THE RESPONDENT: | Mr Noble |
| SOLICITOR FOR THE RESPONDENT: | Polly Dixon & Co |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr Whittle |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Legal Services Commission |
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Waltters & Waltters
Orders
Upon noting that either of the children may negotiate changes to the times they spend with the wife but that such changes can only occur with the prior consent of the husband and the wife.
The husband and the wife do have equal shared parental responsibility for the children L born in May 1992 and N born in December 1994.
The children live with the husband who shall have the sole responsibility for their day to day care welfare and development.
The children do spend time with the wife during school term as follows:
(a)from close of school on Friday 16 February 2007 to 6.00 pm on Sunday 18 February 2007 and during each fourth weekend thereafter (provided that if a public holiday shall fall on either the Friday or the Monday before or following such weekend then the time with the mother shall commence at close of school on the Thursday or conclude at 6.00 pm on the Monday depending on when a public holiday occurs) and resuming on the first weekend of each school term;
(b)on Sunday 4 March 2007 from 12 Noon until 5.00 pm and each fourth Sunday thereafter and resuming on the third weekend of each school term;
(c)from close of school Tuesday to 7.30 pm in each week commencing Tuesday 13 February 2007.
That during school holidays the children do spend time with the wife as follows:
(a)during the first, second and third term school holidays from the close of school until 10.00 am on the first Wednesday of the school holidays;
(b)for the December/January school holidays as follows:
(i)in 2007/2008 from close of school at the end of term 4 for the following 14 days and in alternate years thereafter;
(ii)in 2008/2009 from 2 January 2009 for 14 days and in alternate years thereafter;
(c)on each Mother’s Day from 10.00 am to 6.00 pm and should Father’s Day fall within a period that the children are spending time with the wife then the children shall return to the husband at 10.00 am on that day;
(d)on each child’s birthday from 4.00 pm to 8.00 pm and should such birthday fall within a period that the children are with the wife then the children shall return to the husband between 4.00 pm and 8.00 pm on that day;
All handovers do where practicable take place at the children’s schools or otherwise at the wife’s residence or otherwise as the parties may agree.
The parties do maintain a communication book in which schooling, sporting, social events for the children and their medical appointments are recorded.
The husband when speaking to the children refer to the wife only as “Mum”.
Each party do as soon as practicable advise the other in the event of any emergency or hospitalisation of either child and each party shall be entitled to confer with any doctor, nurse or treating specialist for each child.
Each party be at liberty to telephone the children at any reasonable time.
The wife shall be entitled to obtain from each child’s school copies of all school newsletters, reports, notices of school functions, sports days and teacher parent interview times and shall be entitled to attend such functions, sports days and interviews and any other occasion to which the parents are invited by the schools.
Unless the notices are required to be returned to the children’s school, each party shall ensure that any notice from either child’s school shall remain in each child’s school diary to ensure that the other parent becomes aware of that notice.
Each party do maintain a landline telephone and do keep the other advised of their respective telephone numbers.
In the event that either party proposes to change their residential address such party shall give the other 28 days written notice of such proposed change.
The appointment of the Independent Children’s Lawyer is discharged.
All matters are removed from the pending list.
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 415 of 2000
| MR WALTTERS |
Applicant
And
| MRS WALTTERS |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings concern the different parenting orders sought by the husband and the wife relating to the children of the marriage l who was born in May 1992 (now aged 14) and N who was born in December 1994 (now aged 12). Both parties propose that L and N live with the husband. The parties did not agree however about the orders to be made about the amount of time the children were to spend with the wife.
The Trial
The trial was heard by me on the 12, 13, 14 and 18 December 2006. On the 18 December 2006 I made interim orders pending the delivery of my judgment including orders providing for the times the children were to spend with the wife during the December/January 2007 school holidays.
At the trial the wife was represented by Mr Noble of counsel and the Independent Children’s Lawyer by Mr Whittle of counsel. The husband appeared in person.
The wife relied upon her affidavits of evidence in chief and oral evidence. The husband relied upon his affidavit of evidence in chief and oral evidence and the oral evidence of Dr S which was given by telephone. The Independent Children’s Lawyer relied on the evidence of psychologist, Ms L, who prepared three reports. She was extensively cross-examined.
Brief Background and Chronology
The husband was born in November 1961 and is now aged 45. He is a permanent relief school teacher at P. The wife was born in April 1967. She is aged 39 and a personal care worker.
The parties commenced living together in January 1991 and were married on the 5 October 1991.
The two children of the marriage are L who is now aged 14 and N who is now aged 12. The parties separated on the 1 February 2000. In 2000 there were Family Court proceedings which concluded in September 2000 with a consent order that provided that the children reside with the husband, that he have sole responsibility for the day to day welfare and development of the children and that the children have weekly contact, half school holidays and further contact as agreed. The orders also included injunctions restraining the parties from changing the principle place of residence of the children from P or its immediate surround. At the same time a property settlement was reached.
There is a dispute about the basis for the frequency of changes to the regular contact arrangements for the children, but it is conceded that the children continue to live with the husband and the wife took frequent contact until May 2004. Between the 18 and 26 May 2004 incidents occurred which are dealt with in more detail later. Contact ceased in May 2004 and was irregular until the wife brought further proceedings in the Family Court in August 2004.
Following upon the incidents in May 2004 the husband obtained a Domestic Violence Order which was in place until June 2005.
Following the commencement of further proceedings by the wife interim orders were made providing for the children to spend time with the wife, appointing an Independent Children’s Lawyer and directing a Family Assessment.
Interim orders were made following various applications to the Court. These orders provided for interim contact and some school holiday contact.
At the commencement of the trial in December 2006 L and N were spending time with the wife during school term in accordance with the orders of Senior Registrar Kelly of the 10 May 2005 which provided that:
“The father give and the mother have contact ………………………:-
(a)from the conclusion of school on Friday until 5.00 pm the following Sunday to commence on the weekend of Friday the 20th of May 2005 and each fourth weekend thereafter provided contact on that weekend shall commence at 10.00 am on Saturday the 21st of May 2005.
(b)Each fourth Sunday from 12.00 Noon until 5.00 pm commencing Sunday the 5th of June 2005 and
(c)Each Tuesday from the conclusion of school until 7.30 pm.”
That order also provided:
“2.That all communication between the parties regarding the children take place via a communication book to be provided at handover to the contact parent.”
The husband resides on a 300 acre farming property approximately 7 kilometres from P. N and L reside with him on that property together with his partner, Ms P. The husband teaches in P. The boys attend school in P.
The wife lives in Housing Trust accommodation in P. She has a relationship with Mr R but does not anticipate residing with him in the immediate future. The wife works as a carer and nurse assistant approximately 15 hours a week and is also in receipt of a disability pension as a result of her depression.
At the trial the husband proposed that L and N spend time with the wife as follows:
(a)every Tuesday from the conclusion of school until 7.30 pm;
(b)every fourth Sunday from 12.00 pm until 5.00 pm;
(c)every fourth weekend from the conclusion of school Friday until 5.00 pm Sunday
(the above representing the current orders); and
(d)for three days and two nights at the start of each mid-year school holiday period with an extra day and a half to be negotiated between the wife and the children;
(e)for two weeks during December/January school holidays on the basis that on alternate years Christmas Day be spent with the wife.
His proposal also included “that the children are free to negotiate changes to their visits with their mother but not to radically reduce the time they spend with her and that the husband vigorously encourages the boys in this direction” and “that the boys clearly understand that she must agree to their suggestions and only on that basis do something different.”
These proposed orders were substantially in line with the recommendations in the final report of the family assessment prepared by Ms L, who had prepared three reports.
The wife proposed orders which included that the children live with the husband and set out certain proposals for the December/January school holidays in 2006/2007. Thereafter the orders sought by the wife were as follows:
“3.That from the commencement of school term 1 on 29.01.07 the children do spend time with the wife during school terms as follows:
3.1 From close of school on Friday 02.02.07 to 6.00 pm on Sunday 04.02.07 and during each alternate weekend thereafter provided that if a public holiday shall fall on either the Friday or the Monday before or following such weekend then the time with the mother shall commence at close of school on Thursday or conclude at 6.00 pm on the Monday depending on when a public holiday occurs and resuming on the first weekend of each school term.
3.2 From close of school Tuesday to commencement of school Wednesday in each week commencing Tuesday 30.01.07.
4.That during school holidays as and from the first term school holidays in 2007 the children do spend time with the wife as follows:
4.1 For the first half of the first, second and third term school holidays from close of school to 10.00 pm on the second Saturday of such holiday.
4.2 For the Christmas/New Year school holidays as follows:
4.2.1In 2007/2008 from close of school at the end of term 4 for the following 14 days and in alternate years thereafter.
4.2.2In 2008/2009 from 02.01.09 for 14 days and in alternate years thereafter.
5.If the children are not otherwise to spend time with the wife pursuant to these orders then the children will spend time with the wife as follows:
5.1 On each Mother’s Day from 10.00 am to 6.00 pm and should Father’s Day fall within a period that the children are spending time with the wife then the children shall return to the husband at 10.00 am on that day.
5.2 On each child’s birthday from 4.00 pm to 8.00 pm and should such birthday fall within a period that the children are with the wife then the children shall return to the husband between 4.00 pm and 8.00 pm on that day.
6.That the said children are free to negotiate with the wife changes to the occasions during where they spend time with her, but not to the amount of such time and such changes must have the consent of the wife.
7.That all handovers do where practicable take place at the children’s schools or otherwise at the wife’s residence or otherwise as the parties may agree.
8.That the parties do maintain a communication book in which schooling, sporting, social events for the children and their medical appointments are recorded.
9.That the husband be restrained and an injunction is granted restraining the husband when speaking to the children from referring to the wife by any name other than “Mum” or permitting any other person to do so.
10.That each party do as soon as practicable advise the other in the event of any emergency or hospitalisation of either child and each party shall be entitled to confer with any doctor, nurse or treating specialist in care of such child.
11.That each party be at liberty to telephone the children at any reasonable time.
12.That the wife shall be entitled to obtain from each child’s school copies of all school newsletters, reports, notices of school functions, sports days and teacher parent interview times and shall be entitled to attend such functions, sports days and interviews and any other occasion to which the parents are invited by the schools.
13.That each party shall ensure that any notice from either child’s school shall remain in each child’s school diary to ensure that the other parent becomes aware of that notice.
14.That each party do maintain a landline telephone and do keep the other advised of their respective telephone numbers.
15.In the event that either party proposes to change their residential address such party shall give the other 28 days written notice of such proposed changed.”
The husband indicated he was not opposing orders in terms similar to paragraphs 9 and 13.
The husband and Independent Children’s Lawyer consented to paragraphs 4.2, 5.1, 5.2, 7, 8, 10, 11, 12, 14 and 15.
Paragraph 6 was similar to the orders the husband was proposing. The Independent Children’s Lawyer did not agree to an order in terms of paragraph 6.
Substantially therefore the matters to be determined by me were:
(a)whether the children should stay overnight on Tuesdays each week or return at 7.30 pm;
(b)whether they would spend each alternate weekend with the wife or every fourth weekend and on the second weekend whether it should be for the whole weekend or only on Sunday afternoons; and
(c)whether the orders should include an order that the children are free to negotiate with the wife the changes to the times they spend with the wife.
Main Issues
The parties and the Independent Children’s Lawyer agreed that the children should spend time with the wife on a regular basis. There was however disagreement about how often and extensive that should be.
The husband relied upon the recommendations in the final report of Ms L (which differed from her oral evidence) placing emphasis upon the need to consult the children about the orders to be made and in particular their expressed wishes.
The husband also placed emphasis upon his concern about the wife’s ability to provide for the children whilst they were in her care, highlighting what he alleged was her inconsistent, violent and inappropriate behaviour.
The husband also alleged that N’s tic had improved when contact had ceased.
The husband explained the children’s wishes by highlighting the inadequacies of the wife and emphasising the activities the children enjoyed in his care.
The wife did not concede the short-comings asserted by the husband. She also called into question the basis of the children’s expressed views. She maintained that it would be beneficial for them to spend more time with her.
The wife asserted that the husband had been inflexible, unreasonable and controlling since the parties separated. She asserted that the husband had deliberately interfered with her contact and was influencing the children. The wife asserted that the children were scared of upsetting the husband by indicating they wished to spend more time with her.
Counsel for the Independent Children’s Lawyer proposed that there be an increase in contact basically upon the same terms as sought by the wife. Counsel for the Independent Children’s Lawyer however opposed incorporating in any of the orders provisions for the children to negotiate changes directly with the wife.
The Wife’s Evidence
The wife relied upon her affidavits filed in February 2006 and November 2006.
During her oral evidence the wife stated that she would “have to accept that if the boys wanted changes”. She also said she wanted orders so that she could negotiate with the boys. However, at the same time as saying that “[L] needed to be happy” she also said it was “probably a bad idea to let a 14 year old boy have the final say”.
During cross-examination by the husband she was asked about flexibility for L and N. She replied that “If [L] knows he is having contact and wants to change it then he would bring it to her attention”. She agreed that it was important to discuss changes in the times with them.
The wife’s evidence was that she had discussed some of her proposals with L and N. The only part that she had not discussed with them was the proposal that they continue to stay with her overnight each Tuesday instead of concluding at 7.30 pm.
The wife’s evidence about the boys’ wishes was that N had expressed a wish to see her more often, but wanted to have some flexibility. She said the L did not want to come to stay with her for half of the school holidays. She said that L would like to spend more time with her but would also like the freedom to “come over to his mother’s when he wanted to”. The wife’s oral evidence was that L had discussed with her his proposal that the children stay with her for three days and two nights during the school holidays. The wife’s evidence was that L had told her this but that she “didn’t know if it was [L’s] idea or the husband’s idea”.
The wife gave evidence that the children had told her that the Sunday afternoon on the intervening fortnight was not what they wanted because “half a day was useless”.
The significant incidents of May 2004 were the subject of evidence by the wife in her affidavit and oral evidence.
The wife’s affidavit filed on the 9 February 2006 (document 62) states at paragraphs 29, 30, 31 and 32:
“29.The husband’s evasive and controlling behaviour towards contact caused me difficulty with Centrelink. That organisation required me to complete a form setting out the hours the children were in my care. The form had to be signed by the husband. On 25th May 2004 he refused to put his signature on the form. He told me there was nothing I could do about his refusal. Regrettably, I “snapped’ and told him that I had “had enough”. I then attempted to punch him. Unfortunately the children were present and I immediately regretted my outburst. I apologized to them and told them that violence was never acceptable. The husband then reported the incident to the police. However, the police indicated to me that they did not wish to be involved and charges were not laid.
30.Further, the husband commenced during this period to use his extended family to assist him to disrupt my contact. For example, on 26 May 2004 the child [N] was with me and I had kept him home from school because of illness. The husband rang late in the afternoon wishing to know where the child was. It had been arranged for the children to stay with me for the rest of the week because the husband was working out of town, however he told me that he was not going now and wanted the boys back, I said no and the husband hung up.
31.A while later, the husband’s mother, [Mrs M], knocked at my door asking if the father could speak to [N]. I agreed as the husband was waiting outside in his ute with the engine running. The child got in the car briefly and then jumped out again. The husband then yelled at me not to be “so bloody stupid” although I was waiting quietly by the passenger side door of the car. The child then got back in the car and without a word of explanation the husband took off with him. As a consequence because I had been hanging onto the doorframe I was dragged down the street by the moving car. I became afraid and distraught. I let go but followed the vehicle down the road calling out [N’s] name.
32.I then got into my car to try and find the child. I drove to the home of [Ms B], the husband’s sister, with a view to establishing if [N] was there. Upon arrival I knocked on the door but there was no answer. I was beside myself with worry and whilst I was knocking on the glass panel in the front door it cracked and broke. I was subsequently charged with Property Damage and pleaded guilty in the [local] Magistrates Court on the 7th day of June 2004. I was not given a conviction and was placed on a bond to be of good behaviour. Also at this court appearance, the husband applied for a Restraining Order against me. [Ms B] also sought and obtained a similar order. I decided not to contest these orders as they would provide me with equal protection from the husband and his sister and prevent them from approaching my home and harassing me.”
The husband’s affidavit filed on the 24 January 2006 describes this incident as follows:
“6.During May 2004 [the wife] refused to let the boys return home after contact. This had not happened before, I contacted the police, who checked the boys were ok.
7.Following this she violently assaulted me in front of the boys who were severely traumatized. When I went to her house to get [N], she ran alongside the car yelling and screaming. She then violently attacked the car my sister and elderly mother were in. She then went to my sisters (sic) house and yelling and screaming abuse she kicked in my sisters very sturdy front door. She then came to my house where she had been told not to go by police, she repeatedly walked around the house yelling, swearing, while kicking and punching the walls, doors, and windows. [N] was inside with myself and my mother, he cried the whole time.”
The mother’s version given to Ms L in her first report, (document 49) is as follows:
“When asked about the events of May 2004, the mother told me that she wanted the father to sign some Centrelink paperwork for her and he had refused. In May she could not stand him coming every day to the door, she just wanted him to pull up and ‘toot’. He was rude at the door and would not speak reasonably to her. She asked him to sign this form and to drop it off at another time. He looked at the form and refused to even read it. She tried to whack him in the face and he put his arms up. The mother said that one of the reasons that she took this drastic action was because this would ensure that she would get a second appointment with her lawyer. The father then returned the next day and ‘kidnapped’ [N] from her care even though the children were supposed to stay with her until the following Sunday.
The mother then talked about events surrounding the father taking [N] away from her. She said that [N] looked terrified when the father told him to get in his car. After they left, the mother was very upset and went to her sister-in-law’s house. She knocked so hard on her glass door that the bottom of the glass shattered but this was not deliberate. The mother conceded that she should have gone home but instead she went to the father’s farm and walked around the house, and banged on the windows. She did not know anybody was in the house until she learnt this from the father on the phone. She did not know that [N] was still in the house. The mother then said that even though she tried to whack the father, she didn’t even connect with his face. When [N] was kidnapped from her care, this was too much for him and this is when the tic started.”
During her oral evidence the wife again referred to N being “kidnapped” from her care. When cross-examined by the husband about the assault on the 25 May 2004 the wife said that his refusal to sign the form was “part of the reason I attacked you”. During this part of her evidence she said (in answer to the husband’s questions) “I tried to hit you, you put your arm out and …………….. I hit your shoulder …………….it was not extreme.”
She also admitted that she had kept N home from school that day because he had “a bit of a cold”. She admitted that the husband had telephoned and that she had “just omitted to tell” the husband that N was with her at home and not at school until he telephoned at 2.30 pm and specifically asked where N was.
The wife in her oral evidence alleged that the damage which was done to the husband’s relative’s door that evening when she was banging on the door was an accident. She conceded that she had been placed on a bond for property damage.
The wife agreed in cross-examination that she had then attended at the husband’s house and banged on the tin “a couple of times and on the windows”. She said that she banged in that way to attract attention and that she just wanted to find N.
Her evidence attempted to minimise or excuse the bad behaviour on her part and showed no indication that she was taking responsibility for her bad behaviour, particularly the stress that it caused N on that occasion.
The wife was also asked about her role in changing the particulars in a school form (Exhibit 1). She agreed that she had applied “white-out” to the form and typed in her address where previously the husband’s address had been.
Exhibit 1 as altered by the wife shows the residential address for L as the wife’s address.
While admitting that she had made the changes she refused to accept that that her alteration suggested L was residing with her.
During evidence in chief the wife agreed that she had become upset in front of the children and had been made aware that this was disturbing the children. Her evidence in chief was that she had not become upset in front of the children for the last 12 months.
The wife said during cross-examination by the Independent Children’s Lawyer’s counsel that L had spoken to her about the way she got upset in front of them and she replied that she “had made an effort to change her attitude and not get emotional or teary in front of the children.”
The wife also conceded that she had borrowed money from the children, (probably three or four times) and that she had done it again after L had told her that he did not like this. She said her excuse for this was ‘because she had minimal funds and needed the money for recreation and spending money with the boys”. Nonetheless, the wife asserted that she could afford to care for the children during the extra time which she proposed.
During her evidence when the wife was cross-examined by the husband, she admitted that changes were negotiated with the husband to the contact periods, particularly prior to the incidents in the May 2004. She said the difficulty was that the husband’s manner was inappropriate during the negotiations.
The Husband’s Evidence
The husband indicated that having received Ms L’s third report he had changed his views and now wished orders to be made in accordance with the recommendations in Ms L’s third report. He emphasised that Dr S had also referred to the need for L’s and N’s wishes to be listened to and accepted. The husband gave evidence that he was concerned that the children had not heard their mother’s last proposal and that had not been discussed or negotiated with them.
The husband’s evidence emphasised that since the orders of June 2005 had been in place, they had worked well. He said that there was a lot less conflict and trouble. His evidence was that he believed the present level of contact had worked well because the wife could cope with it and the children could cope with it as well.
The husband emphasised that it had meant a lot to the children to have had their views listened to and accepted in Ms L’s third report.
The husband conceded that N’s tic was probably caused by the stress related to the conflict between the husband and the wife over issues relating to the children, but said that the conflict was caused by the wife, in particular, referring to the incidents in May 2004.
The husband denied that he had been dictatorial or that he had changed his mind about the children spending time with the wife at short notice. During his evidence in chief he specifically referred to his awareness of the importance of a relationship between the children and their mother. He acknowledged that he and the wife had an “absolutely horrible relationship”.
The husband’s evidence was that the present arrangements were successful and that the children were happy, well-adjusted and doing well at school.
The husband denied influencing either of the children. He strongly denied any suggestion that either L or N was frightened of him. He conceded that in January 2006 the children were aware that the husband had wanted less contact, but noted that N was able to disagree with this view when talking to Ms L. The husband was not aware of the reason the children proposed that mid-term school holiday time with their mother be for three days and two nights. He said that he had neither encouraged the children nor discouraged the children about spending half the school holidays with their mother. He was aware that the children did not want to spend overnight on Tuesdays with the mother.
The husband referred to his concerns about the wife’s emotional reactions in front of the children, her borrowing money and contrasted this with what he described as the “healthy good time at home with lots of interesting things to do at home”.
The husband denied in cross-examination that the children were just trying to please him. He referred to the 300 acres available for the children, their motor bike, old car, pigs, chickens and other farm activities. He recognised that his attitude played a role in the children’s views. On re-examination he said that obviously what he thought and said had an impact upon the children, but that he had tried very hard not to tell them what to say or think.
The husband based his resistance to an increase in time spent with the wife upon the children’s wishes and the wife’s erratic behaviour in the past. He also referred to her difficulties in managing finances.
Dr S’s Evidence
The husband relied on the evidence of Dr S, the Paediatrician who is treating N. He has been treating N since 2004. Dr S gave his evidence from A by telephone link. His reports were annexed to the husband’s affidavit. Dr S is a well-qualified and experienced Paediatrician, he diagnosed N as having suffered from a tic disorder, hyperventilation caused by anxiety. The tic was moderate rather than severe. He has been treating N since 2004. N’s tic commenced in June 2004, shortly after the incidents which occurred in May 2004.
Dr S referred in his report to the connection between N’s disorder, contact with his mother and conflict between his parents. In particular, in part of his report of the 28 June 2005, Dr S said:
“He ([N]) is clearly a young man who is sensitive likes regularity and order and is finding change to new situations and adult conflict difficult to deal with. It would seem to me that all of the adults involved, including parents, lawyers and the courts need to bring a level of regularity, clarity and a plan that continues for at least six months for [N]. …… my recommendation as a Child Health Specialist seeing [N] is that quite structured, clear, appropriate access arrangements need to be put in place. These need to be stabilised for a relatively good period of time. …………….”
In his letter of the 10 October 2005, Dr S said:
“If court is coming up in November I think it is important that once again this young man’s viewpoint is ascertained and taken on board by the system. Certainly when his tic disorder first presented it resolved quickly with minimal contact with his mum (sic).
[N]s has ceased his medication for more than six months now and is progressing well.”
During cross-examination by the counsel for the wife, Dr S again emphasised that N needed stability, clear planning and for the adults to be working co-operatively. He stressed the need for certainty, clarity, child-centred approach and child-centred environment.
Dr S conceded that the conflict between his parents may have been the “contributor to his problems”.
I questioned Dr S. That part of the evidence included:
“HER HONOUR: [Dr S], it's Justice Dawe speaking. I have before me the final recommendations of [Ms L] (sic), the psychologist, and she's putting to the court that [L] and [N] live with their father and continue to see their mother in accordance with the current arrangements for them to spend time with their mother. She has also made some recommendations about school holiday contact. In view of [N’s] current age - I think he'll be 12 soon - how important is it for [N] to feel that his views have been taken into account?---
[Dr S]: I think, as I commented in one of my reports, he seems to be a boy who like (sic) regularity and order and he is starting to move into adolescence which is about becoming a young man rather than being a child. So increasingly between now and 16 and 18 and 20 years of age, his views need to be taken on board, and of course, as he goes through adolescence those views may change from minute to minute, and hour to hour with some adolescence (sic). I think it's great that he has been interviewed by people like [Ms L], that he is represented in the court and I'm happy to acknowledge the wisdom of those people, having spent time with them and being about to bring his viewpoint forward. I think it is important to his self-esteem that his voice is being heard and it will return to the focus of this, which should be for [N], and to a lesser degree for - or for the same degree, his brother [L], who isn't a patient of mine.
Yes?---So I would, in general, agree with [Ms L] (sic) and she will have her reasons for making those recommendations.”
Evidence of the Psychologist – Ms L
Ms L is a well-qualified experienced psychologist. At the request of the Independent Children’s Lawyer she conducted interviews with the parties and the children. The first set of interviews took place in March 2005. Her first report is dated the 15 April 2005.
In the first report Mr L reported the key issues as follows:
“I note that the parties were in considerable conflict during 2004 and although they disagree on who is responsible for causing [N’s] (sic) tic condition, (the father says the mother’s assault of him witnessed by [N] was the cause and the mother says the father’s kidnapping of him from her care was the cause) they are in agreement that the events of May 2004 referred to above triggered his problems. The medical opinion is that [N’s] disorder is one of the most severe seen and paediatrician [Dr S] raises the possibility that there is an emotional component (see his letter dated 1 September 2004). Even if it cannot be claimed that the events between the parents of May 2004 actually triggered the tic condition, it seems reasonable to suggest that the stress of the parental conflict is likely to have aggravated [N’s] vulnerability to this disorder.
Hence the issue of their conflict is clearly significant to [N’s] well being. The first very important point then, is that the parties need to do all they can to establish harmony around the children. This is especially true for [N], as he seems to be more vulnerable to the negative effects of the parental conflict than his older brother [L]. I cannot stress enough how important it is that the parents maintain calm and cooperative relations with each other.
I understand from the parties that there has been alternate weekend contact for some time although in their documents, the parties dispute the pattern of weekday contact (see the father’s affidavit sworn on 10 September 2004 Para 27 and the mother’s affidavit sworn on 19 August 2004 Para 7). However, as noted above when the children talked to me, neither wanted to have alternate weekend contact at this time. (My underlining).
Also as noted above, [N] was not clear exactly what he would like and suggested weekend visits every three weeks. The father claims that increasing contact with the mother aggravates [N’s] medical condition. However, it is not clear to me that this is the case, as [N] told me that the most stressful thing for him has been his parents’ conflict. He did not say that seeing his mother per se is stressful and in fact said he wanted to see her more than currently is the case. Nevertheless, given [N’s] physical vulnerability, I think it is important to proceed with caution at this stage and to see how and if increasing the contact affects his health. I think it is appropriate to introduce weekend visits but the sensitive question for [N] at this time is the frequency of his weekend stays. (My underlining).
By contrast, [L’s] issues are different and somewhat more straightforward. [L], at the age of almost 13 years, said he does not want alternate weekend contact with his mother because he found it disruptive and importantly, I think, he wants to pursue his own interests at weekends, namely farm activities. (My underlining).
My suggestion is that the court considers the following option. The children could have alternate weekend contact, but one alternate weekend would be from after school on Friday until Sunday 5.00 pm and the next one would be on Sunday from 12.00 until 5.00 pm. They could also see the mother every Tuesday from after school until 7.0 pm. That is, the boys would see the mother every week on Tuesday evening and on one Sunday from 12.00 till 5.00 every 4 weeks, and on one whole weekend every 4 weeks. This would give them weekly contact on Tuesday evenings, plus alternate weekend contact (whole or part) and also allow them to have alternate weekends at home. The matter could then be reviewed, and if all is going well (for [N] especially) the children’s views could then be ascertained regarding increasing contact to full alternate weekends.” (My underlining).
Ms L then made the following recommendations
“With all the above in mind, I respectfully suggest the following:
That the children see the mother every alternate weekend, one weekend from after school on Friday until Sunday 5.00 pm, the second alternate weekend only on Sunday from 12.00 pm until 5.00 pm. That they also see her every Tuesday from after school until 7.30 pm.
That the parties do all they can to ensure they have calm and harmonious interaction if they are in the company of the children, or alternatively they ensure they do not need to interact at all.
That the matter is reviewed in 6 months.”
The Consent Order of Senior Registrar Kelly made on the 10 May 2005 reflected these recommendations.
Further interviews with the parties and the children were conducted in November 2005. This resulted in the second report of Ms L which is dated the 20 January 2006.
In that report Ms L sets out comments made by L and N about the wife getting upset, crying and being sad in front of the children because they do not visit her often enough.
Part of the section relating to the interview with L contains the following:
“When asked [L] if there was anything he wanted to change about contact, [L] said he would like it to keep the same, but to drop the one day Sunday visit. I asked him why he feels this and he said he likes doing stuff around dad’s house and then he has to go to mum’s; it’s all right sometimes, but he would prefer just to change that Sunday. He said the whole weekend was all right; [L] described overnight stays as “yeah good” and seemed enthusiastic about these. (My underlining).
With regard to end of term holiday contact, [L] said that he wants to have three days and two nights and stop the other contact. Regarding Christmas holidays, [L] said that last year they spent Christmas Day with dad, so this year Christmas Day should be with mum. Over Christmas he will start his time with mum on Christmas Eve and have five days and four nights, and then time with dad. He then would like to see mum for a couple of hours for lunch towards the end of the holidays. He did not want any extra sleep overs in January.
I clarified with [L] that firstly he would like mum not to get upset about the children not coming for more contact. Secondly, [L] said that he would like mum to get along better with dad (and avoid the sort of thing that happened recently about changing the weekend contact). When I asked him whether dad needs to do anything differently with mum, [L] said he did not know. Thirdly, he would like to drop the day Sunday visits and only have Tuesday after school and the full weekend stay once a month. Regarding holidays, [L] said he only wants five days starting from Christmas Eve. Regarding the two week term holidays, he would like to have three days and two nights at the start and no normal contact during holidays. The reason for this is that [L] finds it less disruptive to have a block of time with mum at the beginning of the holidays.
[L] then told me that regarding dropping the Sunday, he has talked to [N] about it and [N’s] idea was to drop the Sunday. When I asked [L] why [N] wants to drop the Sunday, [L] told me that [N] “just said it”. I asked [L] whether [L] would be expressing this preference if [N] was not suggesting it. He said in response: ‘I might have, but I don’t know’. When I inquired whether [L] was making this suggestion because this is what dad wants, he said nothing but smiled in response. I take this to be an acknowledgment of my suggestion. (My underlining).”
Part of the report concerning the interview with N contains the following:
“I asked [N] why he wants to drop the Sunday visits. He said that he can’t really do things on Sunday; they have cricket in the morning and they can’t do things on the farm. I said that if he does not see mum on the Sunday visits, there will be three entire weekends which go by which he spends with dad and not with mum. He said he felt okay about this. He then said that he would also like to go when they want to, just to ring her up and turn up spontaneously. [N] said that he would like to keep the Tuesday visit after school as well as one weekend a month, and then they could also visit when they wanted to. When asked, he said that he would want to go around extra times when there were not other things to do. I returned again to the matter of [N] wanting to drop the in between Sunday (5 hourly) visits. He said again that they cannot do anything on that day. They cannot really do much with her either because it is only a 4 or 5 hour period. When I suggested that maybe they could have dinner with mum on that Sunday night as an alternative, he said he did not know. [N] then thought about it and rejected the possibility because he does not like going for just one or two hours. There is no point going to mum’s because they cannot do anything, and then when they are at dad’s they also cannot do anything. (My underlining).
When I summarised his comments to me about wanting to cease his short Sunday visit, [N] confirmed that mum’s response (as reported above) upsets him and this short visit disrupts his day. When asked about dad’s reaction to dropping the Sunday short visit, [N] said he does not worry about what dad says and what mum says. Dad reckons they should go there a lot less, but he does not really think this. (My underlining).
With regard to Christmas, [N] said that he would like to see his mum on Christmas Eve and then have four nights and five days, and then one or two lunch times until school starts. When I asked why he does not want to see her more during the holidays, he said they have stuff planned and they are intending to go to the River Murray for about a week. When asked why he should not see her a bit more during the holidays, he said he does not know. I also asked how he would respond if the Judge said that he should spend extra time with him (sic) mum. [N] said it would not worry him too much, but they usually have things to do at dad’s place and these are things that he really wants to do.” (My underlining).
During the interview with the wife for that report she admitted to Ms L that she had been upset in front of the children and had become “teary”.
At that time the husband was seeking a reduction of contact on the basis that he believed N’s medical problem (his tic) was caused by contact with the wife.
Ms L’s report concludes:
“As noted in my previous report (dated 15 April 2005) it is highly possible that the conflict between the parents is the more significant factor affecting [N’s] physical status. It is possible that both parents have contributed to his tic getting worse: the mother by her show of emotion regarding missing the children and (on the mother’s report) the father by asking the children to pass on a message to the mother regarding the court dispute.
As also noted above, in my interview with the mother, I discussed the children’s complaint about her being upset that they do not see her enough. She readily confirmed that she has been upset in their company, and she also agreed that she should cease doing this. It is very important that the mother manages her feelings better whilst the children are in her care, however difficult it is for her not to be a full time parent any more. It is equally important that the father also manages his feelings about the mother more effectively and finds ways to be positive about her role in the boys’ lives.
In any event, I am not inclined to support a change in contact at this time. Although both boys are asking for the alternate Sunday visit to cease, (not because they are unhappy in the mother’s company but because they experience this time as somewhat of a disruption) I do not think it is indicated as it will give them only one full weekend per month with her. I do not think this is enough in this instance; my view continues to be that a crucial and necessary element for contact to work well for the boys is that the parents cease all conflict. However, I am not optimistic that the parties will (sic) able to do this as there is no trust in either camp. The mother is very anxious that the father wants her connection to the boys limited and the father believes the mother is the cause of [N’s] problem and has nothing positive to offer the children.”
Her recommendations were:
“That the current orders for contact are maintained until the matter goes to trial.
That both parties make efforts to reduce their conflict.”
Ms L conducted further interviews of the parties and the children in October 2006. Her final report is dated 5 November 2006.
Part of the report contains the following in the section relating to the interview with the husband:
“When asked, [the father] agreed that the following factors have been significant. Firstly there has been more stability because the current access regime has been in place for about the last year. Secondly, his partner, [Ms P], has had a very positive influence both in his life with the children and with regard to communication with [the mother]. Thirdly, the boys are taking more initiative in negotiating arrangements with their mother.
[The father] then talked about [the mother] sometimes borrowing money from the children and [L] especially does not like this. [The father] also complained about [the mother] on one occasion attending [L’s] school earlier than usual to fetch him for contact and said this upset [L]. When asked if he had any other concerns about her, [the father] said that [the mother] gets upset in front of the children. Sometimes the children say they have a nice time and other times they find the visits boring. [The father] also said that he has not had a problem with the boys negotiating extra time for family visits with their mother; he also said her new partner seems nice.”
Part of the interview with L contains the following section:
“When asked whether he wants to change anything about his visiting regime with his mother, [L] said he would like it to stay the same but he wants more flexibility. For example, if something is happening at dad’s place, [L] would like to be able to choose whether he goes or not to his mother’s home. Regarding holiday contact, he wants to have only three days and two nights. (My underlining).
[L] gave an example of how on one occasion he negotiated some different times with his mother and this worked well. [L] confirmed that he wants to leave things how they (sic) but he wants some flexibility on occasions. He noted that [N] says that the Sunday times should stop but [L] thinks they should continue but the children should have the freedom to change if they wish. When asked, he said he thinks that he should have the final say whether or not he goes see (sic) his mum. (My underlining).
When asked if the (sic) was anything upsetting him about his mum, [L] told me that sometimes they do not do much. He also said that his mum borrows money sometimes. This makes him feel pretty bad; he can sort of say no but then he can’t say no as well. He said he just does not like it, adding it is all right every now and then. [L] has asked his mum not (sic) do this but she had found a way around it. (My underlining).
When I asked about his preference regarding holiday visits with mum, [L] said he would like to have three days and two nights with her at the beginning of the holiday and then to negotiate other times with her. When asked about his preference regarding Christmas holidays, [L] said that he thinks that a week with mum would be good and that he would just organise other occasions with her.”
Both N and L described a positive relationship with the husband’s partner, Ms P.
N also said:
“When asked [N] said he does not want to change anything in his visiting regime with mum but he does want more flexibility so that if, for example some family are visiting he is able to rearrange his time with his mum. [N] said that he does not want to stop seeing his mother on the short Sunday visit but he wants to be able to do other things if they come up.” (My underlining).
The interview with the wife for that report included the following:
“When asked how the boys feel about increasing their time with her, [the mother] said that [L] loves the farm and he wants to come and go as he pleases. [N] tends to go along with his brother. [The mother] talked about an occasion when [L] said they wanted to see her just on the Sunday. [The mother] said she thinks [N] would like to have come anyway but he went along with his brother’s preference.
We discussed the advantages of maintaining the current arrangement rather than making any changes and [the mother] said that she could see the sense in this. She noted that the boys have had almost three years of getting used to this routine and the more time they spend with their dad the more used to it they are. [The mother] confirmed that she sees the children on other occasions like their sport on the weekend, their sports training and special occasions. When asked about her accessibility to the children’s school, [the mother] said that this needs to be in writing, eg that she is still entitled to attend parent teacher interviews. Since the court matter, the principle (sic) wants this confirmed in writing. (My underlining).
When asked, [the mother] said that she gets on well with [the father’s] partner [Ms P]. She finds her very reasonable, polite and easy to talk to. When asked whether there is it (sic) the possibility of her relocating to Queensland, [the mother] said that she intends to stay in SA. She has just obtained employment at the hospital and is happy there.
I asked about [L’s] complaint regarding her asking for money. [The mother] dismissed this and said that his father borrows money from [L] as well. She talked about her financial situation and said that sometimes she borrows $10 or $20 from [L].”
Mr L’s final report concludes with a section headed “Summary and Key Issues and Recommendations”:
“Summary & Key Issues
The current regime whereby [L] and [N] see their mother on alternate weekends, one weekend from after school on Friday until Sunday 5.00 pm and the other a shorter 5 hour visit on Sunday, as well as every Tuesday from after school until 7.30 pm has been in place since Orders made in May 2005. Both [the mother and father]report that the boys are happy and stable and progressing well. Of note is that [N’s] tic has improved and he is not (sic) longer taking his medication.
[The father] told me that his new partner, [Ms P], has had a positive influence not only on the family and the way the household runs but also by being a generally calm presence. She speaks with [the mother] and this has worked well for the parties as there seem to have been no major disputes or conflicts since my last conversation with them in November 2005. [The mother] talked about accepting the current arrangement with the boys and trying to get on with her life. She still wants the court to return her contact to previous levels while [the father] has offered to settle on the current regime.
When asked, both [L] and [N] were clear that they want to maintain the current arrangement. However they also wish to have more freedom to negotiate changes with their mother, depending on their needs and preferences. On the issue of holiday times, they both talked about wanting to spend a few days and overnights at the start of the holidays and then negotiate other periods and days with their mum.
[The mother] told me that [the (sic) father] and [Ms P] do not refer to her as ‘mum’ but [by her given name]. She feels this is inappropriate but they have not acceded to her request to be called ‘mum’. My view is that both parents should be respectful of each other’s roles and contributions to the children’s lives and to this end, should call each other ‘mum’ or ‘dad’ as appropriate.
Given the relative calm between the parties over the past year or so, the stability and good progress of the children, [N’s] improved condition regarding his tic and the boys’ expressed preferences, I think the current arrangement should be maintained. Further, my view is that it is appropriate that the boys negotiate changes to their visits with their mother but that as far as possible, they should rearrange times rather than reduce them. So for example if they do not wish to go to the 5 hour visit on Sunday, I think they should see their mother at another time (like after school one evening) during that fortnight. In other words, I think that [L] and [N] need to more or less maintain the amount of time they spend with their mother but be free to change the times if, on occasion, they wish to do so. I also think it should be clear that [the mother] needs to agree to a change and that if she has fair reasons for not agreeing, that [the father] supports her. That is, the boys need to convince [the mother] if they wish to alter a visit and if they are unsuccessful in this, [the father] should not use this as an occasion to be critical of her.
On the issue of holiday visits, the children’s preference at this time is that they spend 3 days and 2 overnights at the start of each term holiday and that they negotiate other contacts with their mother. I think this is appropriate and my suggestion is that [L] and [N] spend at least another day and a half with their mum at another time during term holidays, the additional time to be negotiated by the children and [the mother]. I understand that they have spent a week with [the mother] during the last Christmas holidays and I think that this is adequate for this Christmas, as long as they see their mother close to or on Christmas Day as well. However, Christmas holidays are a good time for children to spend quality time with non residential parents and my suggestion is that for the 2007/2008 Christmas holidays the boys spend up to 2 full weeks with their mother, and that they negotiate with her the sequences of these days closer to the time.
5.Recommendations
With all the above in mind, I suggest the following:
That [L] and [N] continue to live mainly with their father, and see their mother as per the current arrangement and that [the mother] is free to attend other activities of the children relating to sport and school, or other special occasions that the boys invite her to.
That the children are free to negotiate changes to their visits with their mum but not to radically reduce the time they spend with her and that [the father] vigorously encourages the boys in this direction. That the boys understand clearly that she must agree to their suggestions and only on that basis can they do something different.
That the boys spend three days and two overnights with [the mother] at the start of each term holiday period, and that they negotiate and extra day and half of time together elsewhere during the holiday period. That during this Christmas they spend a week with her and some time at or around Christmas Day. That they see her at other times during these Christmas holidays, perhaps at least a few hours (eg for lunch) in the other weeks if they are not away from Adelaide. That in the next 2007/2008 Christmas holidays, the boys spend 2 weeks with her, the times to be negotiated by them and [the mother], and that in the other weeks, they see her at least once a week for lunch or longer, again to be negotiated by them with their mother. (My underlining).
That [the father] and his partner ensure they accede to [the mother’s] request that they refer to her as ‘mum’.
The husband accepted the recommendations of Ms L’s last report and sought orders in those terms. The wife sought to increase the time she spent with the children to include overnight each Tuesday until the commencement of school each Wednesday and each alternate weekend from Friday until Sunday and half the mid-term school holidays and two weeks during Christmas school holidays.
At the commencement of the oral evidence counsel for the Independent Children’s Lawyer put to Ms L a summary of significant parts of the evidence which had been presented to me by the parties and Dr S. The evidence continued:
“MR WHITTLE: Obviously, I can’t put all of the evidence to you; I just put those matters to you to give you an idea of matters that may be important in any further consideration or revisiting of your views. Firstly, I’d like to ask you – your recommendations are contained in the reports and particularly the last report – is there any, in your opinion, room for orders which extend the amount of time the boys spend with their mother in any way, either consistent with or consistent partly with what she seeks, which in your view would be in their best interests, having regard to the matters you’ve had regard to also and the further evidence I’ve put to you? ---
[Ms L]: Well, I think there probably is some room for looking at possibly giving them a bit more time. The reasons I say that is that my impression of [the mother] certainly in this last period – and I’m just reminding myself that when I saw the parties this last time – I think it was in October of this year, and the time that I had seen them prior to that was the previous November. So it was almost a year later; almost a year had transpired between my contact with them. My impression was that things had stabilised a lot. I think I noted in my report that I though [the father’s] new partner seemed be having a positive influence in that regard. I also took note that [the mother] – one of my concerns in my previous report was that she restrained herself from becoming emotionally upset in front of the children about not seeing them more, and she had taken that on board – this is in terms of what she said to me – and was paying attention to that and making sure she wasn’t doing it, and I think the children confirmed that. So on the issues about who is being truthful about whether visits have changed, the issue of money, and whether that’s occurred – I mean, her response about the issue of money was that it was no big deal and that [the father] had done something similar with the children. I suppose from my point of view, from a psychological point of view, one of the most important factors was the issue of her emotional relationship to the children and the extent to which she is able to protect them from stress and inappropriate emotional expression, and she had said to me that she had taken on board and wasn’t doing it. So from my point of view, if there has been a shift in that dynamic, then that’s a positive thing. I at not time, in the three assessments that I’ve done in this matter, have seen anything in terms of how [the mother] interacts with the children and what the children have said to me; that on a day-to-day basis, minute-to-minute interaction, there’s something bad that goes on. I haven’t seen that. I know that this matter began with [the father] claiming that [N’s] (sic) tic got worse with contact, and I think you’ll remember in my first report I challenged that and I wasn’t persuaded by that at all. I don’t think that anything has come up, in terms of the time I’ve spent in this matter and talking to [the mother] and the children, that makes me concerned that something bad goes on when they’re together. So extending it a bit, you know, from that point of view, I don’t see that there would be any problems from that point of view. I suppose it’s for the court obviously to decide – for her Honour to decide – on these other matters of fact, about attending contact and so on, and how that bears on [the mother’s] parenting and ability to put the children’s needs first.”
(My underlining)
After the luncheon adjournment further evidence was given about the possibility of the children spending more time with the wife. During that evidence Ms L indicated that she thought it was “a really difficult question”. She also emphasised the importance of both parents supporting the relationship with the other parent and the need for the wife to continue to be flexible and the facts that the boys were getting older and like being on the farm. She mentioned that they had a good relationship with their father and his partner and that the farm “is attractive for them”.
When specifically asked about the increased time that the mother was seeking Ms L said that she could not see “what the problem would be”.
During cross-examination by Mr Noble for the wife she was shown a draft of the minutes of order proposed by the wife and the cross-examination concluded:
“MR NOBLE: What I want to do really is this: you have made it clear to her Honour that there is room to move and to have some increases, although you do say – and you gave your reasons – it can be problematic? ---
[Ms L]: Mm’hm.”
Counsel then put to her certain scenarios about the school holiday time contrasting the two nights and three days for which the boys were asking (and which she recommended in her third report) and the seven days that the wife was seeking. That section concluded:
“MR NOBLE: Your best advice to her Honour is: how many nights should she have in the short-term holidays?---
[MS L]: Well, if her Honour finds all the things you’ve put to me about her being a responsible parent and so on and so forth –Yes, of course. Your Honour has heard everything; you’ve only heard part?---That’s right. Then I see no obstacle to having orders which are at least what is generally done, so that’s seven or eight days, isn’t it? That’s about half the holidays; whatever the times are.
HER HONOUR: What was the basis of your recommendation that there not be half the school holidays?---
[MS L]: I suppose, when I wrote this report the boys were sort of saying what I’ve reported them to say. I had seen them when there was a period of stability, and at that time I was giving reasonable weight to their expressed opinions. If what we’re saying now – if the question that’s been put to me is: “Is there any obstacle to actually increasing from that?” I suppose I’m saying to you there isn’t.
HER HONOUR: But is there any obstacle to it, and what is in the best interests of the children, bearing in mind that you made a recommendation as recently as a short time ago that it be less than that?---
[MS L]: Less than that. Yes, that would be five and a half days. Look, as I said, I think it’s difficult to argue in matters of days. There’s a possibility that the older child [L] may object to that because he may have ideas about what he wants to do. But if that’s the case, I fall back to my observation that [the mother] may be able to come to some arrangement with him or show some flexibility around that, you know, from holidays to holidays, I’m saying. I’m just saying that in general I don’t have difficulties with supporting what you’re suggesting, which is an increase from the two nights overnight, because I already was moving in that direction.
MR NOBLE: Can I put this, and perhaps this may assist her Honour: what was put to you by Mr Whittle was the father’s concession that the boys have been influenced by what he has wanted, in terms of time, and that he has been opposed to any increase – in fact, he wanted decreases – and he has been opposed to overnight contact?---
[Ms L]: Yes.
MR NOBLE: If her Honour were to find that was the position, does that in some way suggest to you that what the boys were saying to you was not entirely what they want but a reflection, to some degree, of what their father wants?---
[MS L]: Well, children are always influenced by what their parents say and the atmosphere and emotional dynamics around them.
Of course? In a case like this, it’s not unusual to find children reflecting that rather than coming up with something that’s completely different to what either parent is – or, you know, the parent that they are living with. So, yes, if that’s what her Honour finds on all of those issues, I would agree that there’s been some influence on the boys in forming the specific formation of what they are requesting, specifically.”
Mr Noble’s cross-examination also included the section:
“MR NOBLE: Is it in the interests of children at this age, and in particular these boys, that there should be one or two nights in the intervening fortnight?---
[MS L]: In general, it's better for children to have more time with parents than less, providing that that time doesn't cut across some other important requirement or need. So, yes.
MR NOBLE: In your interview with [N], you will recall that there was an occasion when he was saying that he wanted to have Sundays eliminated, and the reason which he gave was that it's only a few hours and it really did not give a proper opportunity to go out with Mum and so on. On the other hand, it also fouled up - if I could use that rather coarse expression - any possibility of having things with Dad on the same day. Do you follow me?---
[MS L]: That's correct.
MR NOBLE: So in terms of the question of alternate weekends, would that in your view be in the best interests of the boys now, knowing what you know in this matter?---
[MS L]: Again referring back to what you've told me, if [the father] gets behind it and [the mother] is able to show some flexibility so that she can accommodate if the boys have something else that they wish to do, and find a way of working with that - because you can't split children in half, obviously, and there may be some times where they want to be doing something else or it's a period of time during the year when they want to be doing particular things on the farm - if those things are in place, then I can't see anything that would argue against it, if those conditions are in place.
MR NOBLE: Of course, her Honour would have to have formed an impression of the mother that she is genuine in her statement that she has in the past, and will in the future, accommodate the boys where she can?---
[MS L]: Yes.
MR NOBLE: We are then left with the last issue, in terms of the increase of contact. At the moment, this lady sees her boys from close of school on Tuesday to about 7.30.
The evidence is that she gives the boys a bit of time to sort of settle down and then I think [L] in particular goes off to do his homework. She feeds them, presumably. Sometimes he's finished his homework; sometimes he's got to complete it at his father's, under the current arrangement. In your view, contact overnight during the school week - first of all in a general sense, a hypothetical sense to start with, is it of benefit to children to be with what used to be called the non-residential parent overnight during the week?---
[MS L]: Well, I think there are benefits, because obviously the non-residential parent can involve themselves in schoolwork and activities, and the child sleeping there is obviously another positive thing for the relationship. I suppose in this matter, if we stand back and look at all the bits that you've been talking about - you're talking about increasing the time in holidays, you're talking about alternate weekends instead of one full weekend a month and you're talking about another overnight on Tuesday nights - I suppose what's occurring to me is that the children have been used to less than that. If we're talking about putting all of these things in place, then [the father] is going to have to really lead from the front on that, because all of those things together - as you lay them out, they seem to be more time - it is more time than the boys are having now. So exactly how they will respond to that and how they will adjust I don't really know, but I think what I can say is that, if their father moves with that in a constructive way and their mother is able to accommodate them sometimes, the best I can say to the court is that I don't see any other major issues that could make all of that really bad for the children. They may have to get used to it. Maybe there's some room for flexibility if the older boy doesn't - you know, sometimes children don't like to change too much and they experience it as quite disruptive. I'm not quite sure how either of the children would find that; in particular, the older boy. So there are issues here that I can't really comment on because (a) I didn't address them and (b) sometimes it's hard to predict how kids will respond.
MR NOBLE: This may be a very difficult question to answer. Out of increasing the holidays, increasing the alternate weekends, increasing overnight Tuesday, which is the most important, which is the second most important and which is the last? If you can't answer it, just say you can't answer it?---
[MS L]: I can't really answer that.”
During cross-examination by the husband the following section took place:
“[THE FATHER]: You would also be aware, because you wrote it, that in the family assessments both [L] and [N] were very adamant that they did not want an increase in contact?---
[MS L]: They did say that. They did say it, but there’s also a context around that. What her Honour has to think about is all of that information and the extent to which their views, as expressed just on their own, should be the most important thing, or not so important, or whatever her Honour decided on it. In other words, there are other factors. And also from a psychological point of view there are other factors.”
Ms L also responded to a question from the husband as follows:
“[THE FATHER]: Okay. Would it be possible, if [L] and [N] have very good and valid reasons for not wanting to increase contact and that contact is dramatically increased, that that could have a very adverse effect on their relationship with their mother?---
[MS L]: Well, it depends on what the reasons are. If the reasons are to do with the nature of the relationship with their mother, if it's not particularly good or if things are happening there that are bad for them or upset them, then yes it would have an adverse effect. If their reasons are that they've got some other thing that they do, that they love to do, and seeing their mother takes them away from that and that is something very central to them, then they might get angry with their mother. It depends very much on what their reasons are and how much those reasons are connected to their relationship with their mum and how she responds to them and her ability to work with that. I mean, if orders are made to increase the time that they currently have, then the boys will have to adjust. But children have to adjust to a lot of things. Just because they are being required to adjust and because they may express irritation or resistance doesn't mean that they can't be made to come around and it doesn't mean that it's not necessarily better for them. I mean, that's what I'm saying, yes.”
.……………….
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[THE FATHER]: It's of October this year. Now, you had written two other reports on this matter and you had interviews with [L] and [N] and [the mother] and myself?---
[MS L]: Yes.
[THE FATHER]: You were aware that this was the final report, because Burr J had ordered this because we needed it for court?---
[MS L]: Yes.
[THE FATHER]: In the recommendations at the back, you recommended that contact pretty much stay the same?---
[MS L]: I did. But with a paragraph in there that allowed for negotiation between the children and [the mother]. Is that correct?-
[THE FATHER]: --Yes.
[THE FATHER]: [Ms L], have you received any other information, between October and now, regarding this matter?---
[MS L]: Not as far as I'm aware. Are you referring to anything in particular?
[THE FATHER]: No, I don't - just what - - -?
[MS L]: ---No, not as far as I know.
[THE FATHER]: I'd like to ask you - because what I believe you just suggested or agreed to in your verbal evidence is a dramatic increase in what you put in your report several months ago. Given that I believe [Dr S] and yourself - I fully understand that - sorry. Given that a very important part in this now, especially as [L] and [N] are getting older, is to listen to their views, which I believe was a very important part of the trial being stopped and all of us getting another opportunity to talk to you - - -?
[MS L]: ---Mm'hm.
[THE FATHER]: How do you explain that change?---
[MS L]: Well, when I was writing this report, I was certainly giving weight to what the children were saying to me. I suppose what was in my mind was that things in this situation had stabilised. This was the first time in a year and a half, or a couple of years, of knowing this matter where things had settled down. I had some concerns to keep things stable. This is what the children were saying to me. I didn't really, I suppose, consider the matter in the way that it's being put to me now and I took, I suppose, a conservative approach about, well, let's just keep things as they are and let's see what happens. I wasn't, I suppose, concerned that the children weren't getting enough time with [the mother], because my impression from her interview with me was that she was seeing them reasonably regularly; that she was relating to them appropriately. As to the issue of specific days of increase, I just think it's a very difficult matter. Even today, in giving my evidence, I find myself swaying a little bit and thinking: on the one hand, well, yes, there's a good relationship between them and their mother. It would be good for them to spend more time with her, provided you get behind it. On the other hand, I found myself saying to the court, "Let's just step back. All of those increases that were suggested by Mr Noble - actually that is quite a bit more than what they're getting at the moment. They may, you know, find some difficulty in adjusting to that." It will depend a lot on how you handle that with them – how both you and [the mother] handle it. So in this matter I'm not exactly sure - I don't feel I can say to the court with confidence, "Look, really, I think it should be this for this, this and that reason." When I'm asked what's in their best interests, I find it difficult to answer in a very specific way around days. That's just a difficulty I'm having.
[THE FATHER]: Can I put it to you that when you wrote this report - that that would have been done in your office where you work?---
[MS L]: Yes, in my office at home.
[THE FATHER]: That's where you usually work?---
[MS L]: Yes.
[THE FATHER]: Could I suggest that this report was written in probably a fairly non-stressful environment?---
[MS L]: Right.
[THE FATHER]: One that you were used to working in?---
[MS L]: Right.
[THE FATHER]: Those recommendations, which I believe in a way [Dr S] supports the part where it says the children's views were listened to - because they were - and I also received this report with a covering note from [Mr T] (sic) saying that they were clear and sensible?---
[MS L]: Mm'hm.
[THE FATHER]: Those recommendations in that report, made in that environment - how do I say it? - are a lot more accurate and are in the interests of the children a lot more than evidence given in a really stressful environment, when being asked by professional people who know how to engineer a result. I'm sorry if I'm being inappropriate but - - -?---
[MS L]: Who know how to lead me down a particular line of - - -
[THE FATHER]: Sorry. Excuse me. Yes, because I - - -?—
[MS L]: -Look, I know what you're asking, but what I would say is that these questions that are being put to me, of course, are perfectly legitimate, because some of them come from a perspective which is not necessarily the perspective that I was taking at the time, and I'm required, as a person who is here to assist her Honour, to think about these things in the way that they're put to me. I think an important issue is that there are some cases where decisions have to be made by her Honour, in this case, about what's going to be most important. One of the issues is: should the view of the children be the most important thing? That's something for her Honour perhaps. It seems to me that there's a tension between do we say that the most important thing is what the children are expressing, and on that basis orders should be made, or are we saying that there are other factors that are equally as important? Of course, one of the other factors is how much time and therefore how much can the children develop their relationship with their mother? And that's what I'm being asked to comment on. Sometimes it's not clear, from where I sit, which should be the penultimate thing.”
During cross-examination by the husband, Ms L also agreed that it might be more appropriate to gradually increase the time the children spent with the wife.
Towards the end of her evidence both the husband and I asked Ms L questions about the basis upon which she had changed her recommendations from the November report. Her evidence included the following when questioned by the husband:
“[THE FATHER]: I suggest to you that a dramatic increase in contact – I know nobody can say definite what will happen in the future, but it’s possible – it is possible that it could easily make things worse?---
[MS L]: Well, it is possible. I suppose I am saying that I think, depending on how you manage it and depending on how [the mother] manages it, that the best I can say is that I would hope that the likelihood is that it’s not going to be disastrous. If I thought it was going to be disastrous, then obviously I would say that. If I was going to say that, I would have to have reasons. What are my reasons? I can’t really find them. They seem to have a good relationship with their mum. They are older, they can negotiate more now.
(my underlining)
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HER HONOUR: [Ms L], you have to explain to me what it was about the circumstances, when you interviewed this family in October of this year, that caused you not to consider whether the boys should have the sort of time with their mother that the whole court case was about. Why didn't you consider that? Are you saying that you didn't consider, when writing this report, what the mother wanted, namely at that stage quite a bit more time with the boys? What did the mother tell you she wanted in October this year?---
[MS L]: I think she said at that time she was going for - I thought at that time she was going for her original application, which was - - -
HER HONOUR: Three nights per week after school - - -?---
[MS L]: Yes.
HER HONOUR: - - - half the school holidays and alternate weekends?---
[MS L]: Yes.
HER HONOUR: Did you give consideration to the mother having extra time with the boys when you saw the family in October 2006?---
[MS L]: Well, I did, and my recommendations reflect that.
HER HONOUR: Yes, but your recommendations reflect a slightly increased holiday time and maintaining the current alternate weekends, fourth Sunday and Tuesday afternoons?---
[MS L]: Yes.
HER HONOUR: What is it about any information that you've received since seeing the family in October 2006 that causes you to review what you recommended then?---
[MS L]: What I had in mind when I was making this report was about keeping things stable; that there had been almost a year of stability. I suppose I was concerned to keep things stable and I suppose I had a concern at that time that if there was a radical increase - that there might be difficulties between the parties. And that's what I've said in my evidence today. If the parties can manage this well, then the children will probably follow suit. In other words, I'm saying again that when I consider what's been put to me today, and I consider again my opinion and observation that there is a good relationship between the children and the mother, that really perhaps I should have given it more consideration in that report, your Honour. Perhaps you are right to point that out to me Perhaps I should have.
[THE FATHER]: [Ms L], is it correct to say that a big consideration when you were writing the report was the stability that the previous arrangements had - and we did all agree that they were working quite well -produced. That was - I believe you've said it a few times now - the stability? ---
[MS L]: Yes.
[THE FATHER]: Is it true that you no longer have concerns about the stability, or is that no longer important?—
[MS L]: No. That's right. I was concerned about the stability and I noted that I thought that, apart from [N’s] tic, the main area of stability was what was happening between you and [the mother], and there seemed to be no eruptions of conflict, or your attitudes both seemed to be better, I thought, than previously. So that was in my mind. I mean, as I've said to her Honour, perhaps I should have considered more, therefore increasing the time. I mean, I think that's a fair criticism of what I did last time. So what I'm saying now is that if we can be confident that this stability continues - namely, how you and [the mother] operate together around the boys - increasing the contact somewhat I think is an option to be considered. That's all I'm saying.
[THE FATHER]: I'd just like to get your opinion that you don't have any concerns that we increase contact without any discussion whatsoever with the boys. That's not a concern of yours?---
[MS L]: Well, I think there should be discussions, and probably the suggestion you've made earlier about - if there's going to be a lot of increase - namely, all of the things that have been put to me - then maybe graduating it would be better, if that's what her Honour decides to do. Discussion? Yes, discussion in the sense of talking with the boys about what that will mean and working with them to ensure that it's framed as a positive thing.
HER HONOUR: [Mr W], are you talking more about consulting them and getting their views rather than just telling them what they have to do?
[THE FATHER]: Yes.
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[THE FATHER]: Just to clarify: with the increased contact that Mr Noble proposed, you are not totally agreeing with it; you are agreeing with it in principle, as long as it's increased gradually, over a period of time, and that there's - you have said that there are monitoring things; that if we handle it okay and if those things are in place. So is it true that you're now saying that you don't just say, "Yes, all of those contact periods we can put in place now, and they are up and running," that you agree with the principle of it but you agree to, if contact is to be increased - I'm not too sure that you have agreed to that in some ways, but you've agreed that if contact is to be increased that it needs to be done on a gradual - there would be positives involved in having it done in a gradual manner?---
[MS L]: Sure.
[THE FATHER]: And that the boys' views should be ascertained or at least - - -?---
[MS L]: : No, I'm not saying that the boys' views should be ascertained.
[THE FATHER]: Well, I'm sorry - - -?---
[MS L]: I'm not saying that at all. I'm not saying, "Oh, we should do another process with the boys." That's not what I'm saying at all. You will remember that when I was speaking to Mr Noble I said to him, "Look, you know, all of these things you are suggesting, when you put them together, actually that's quite a bit more than they've got now," and I'm trying to take account of that and I'm expressing a difficulty in confidently saying to the court it should be X number of days, but I am putting forth the general idea that some increase - I can find no reason for an increase, even on what I've suggested to be considered. Why didn't I talk about it then? Perhaps I should have. But I was already thinking about it, and I am willing to concede that today. If you're saying to me, would it be - it depends on what orders are made in the end; what her Honour decides in the end. If her Honour decides to go for all of those things that Mr Noble is talking about, then probably it would be better to introduce them a bit gradually, not over a year or six months; perhaps over a term or so. So that might be appropriate. I don't know if that's helpful to you or not. Have I been clear in what I'm setting out?
[THE FATHER]: Yes, I think you're trying to be as clear as you can.
[MS L]: Well, I'm suggesting that it's just extremely difficult that an awful lot of time and effort went into producing a document that the court requires to make a decision, and people agree on that document and the children are involved in the document - as most people say is either an important thing or, you know, a necessary thing and it's good for the children - is put into that, and there are recommendations made?---
[THE FATHER]: Yes.
[MS L]: Then a very short time later, when there's no chance at all to do all of that again - which is what the court required - when there's no chance at all to do all of that again, that it's just sort of turned on its head with a comment that: "Perhaps I should have considered it"?---Well, I haven't - I don't agree with that. I'm not turning my opinion on the head. I don't believe that at all. What I'm saying to you is that at the time this is what I came to, and what I'm saying is not radically different to what I've been saying then. It's just that it's not agreeing with your position. The other thing you need to remember is that when these reports are written, these assessments have a scope. I'm not trying to be defensive, but the reality is that I don't have all the information, I don't have the power to get all the information, I don't have the power or the possibility at that point to hear things put to me in the way that they are in a trial. Okay? So that's actually quite important, because there are issues that I can't be very confident of often in matters, and I can only comment on what I think I can comment on, which I'm doing today. I don't think that what I've said today in evidence is radically inconsistent with what I've said in my report”.
(My underlining)
Assessment of the Evidence
The wife conceded some matters against her interest such as becoming teary and upset in front of the children at times. At other times however she was not candid with the Court. Examples of this were her references to N being “kidnapped” from her care when the father collected him in May 2004. A significant factor in her evidence was her inability to accept responsibility for her violent behaviour towards the husband in May 2004 and her serious lack of insight into her appalling behaviour towards the father’s mother and sister and at the father’s home when she banged on the windows and walls of the home.
Dr S gave his evidence in a straightforward, professional way. He emphasised the need for the children to have certainty, clarity, a child centred approach and a child centred environment.
The husband was unrepresented during the hearing. He presented his evidence in a direct and at times emotional way, which was not necessarily inappropriate considering the circumstances. He conceded that the children had in recent times enjoyed seeing their mother and looked forward to spending time with her. He was not successfully challenged about his version of the facts. He appeared candid in his evidence about the possibility of his views influencing the children and the difficulty he would have in supporting orders with which he might not agree and with which he thought the children would not agree.
Ms L’s reports were prepared after interviews with the parties and children ranging in time from March 2005 through to November 2006. The conclusions and recommendations of her final report of November 2006 emphasise:
“ the relative calm between the parties over the past year or so, the stability and good progress of the children, [N’s] improved condition regarding his tic and the boys’ expressed preferences …….”.
Ms L’s evidence concerning the likely impact of changes to these arrangements when she gave her oral evidence was not clear. She appeared to be agreeing with counsel for the Independent Children’s Lawyer and for the wife when they suggested the possible increase, but she was not able to adequately explain her reasons for agreeing to an increase in contact, other than to say the boys were older and that they had a good relationship with their mother.
At times the oral evidence of Ms L was hesitant and uncertain. This hesitancy, coupled with the inability to provide clear explanation for a change in her recommendations, suggests that the weight to be given to her evidence should be carefully considered.
The Law
The Family Law Act contains the following significant provisions:
Section 60B (1) and (2)
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.
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 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).
Section 60CA
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC (1), (2), (3) and (4)
Determining child’s best interests
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
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 and 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
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 wishes;
(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) 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;
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.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Section 61DA
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.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
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.
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.
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.
Section 65DAA
Equal time
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.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
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.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
For the purposes of subsection (2), a child 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.
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
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.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)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 (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Section 65DAC
This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Discussion of the evidence in context of the applicable law
I am satisfied that the evidence indicates that there are reasonable grounds to believe that the wife has engaged in family violence. In particular the evidence of the husband (which I accept) in relation to the incidents which occurred in May 2004 establishes those reasonable grounds.
The presumption of Section 61DA therefore does not apply. However, considering all of the material before the Court and notwithstanding the behaviour of the wife in May 2004, it is in my view in the best interests of the children that the husband and wife share parental responsibility for major long term decisions concerning the children.
Section 65DAC requires the husband and wife to consult each other about such decisions and make a genuine effort to come to a joint decision. Notwithstanding the difficulties which the parties have had in the past, I consider it in N’s and L’s best interest to provide for both parents to share the responsibility for long term major decisions.
The provisions of Section 65DAA (which suggest that the Court should consider equal time or substantial and significant time spent with each parent) therefore apply. Neither of the parties nor the Independent Children’s Lawyer suggested that it would be in the children’s best interest for them to spend equal time with each of the parents. I am satisfied that the evidence clearly indicates that this would not be in their best interests.
It is necessary therefore to consider whether the children spending substantial and significant time with each of the parents would be in their best interests and whether that would be reasonably practicable.
I turn to consider the criteria under Section 60CC, taking into account the provisions of Sections 65DAA (2), (3), (4) and (5).
Primary Considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents.
Both parties, the Independent Children’s Lawyer and Ms L accepted that the children have a good relationship with both parents. The children are now enjoying their time with the wife. Although this time has not been extensive they have continued to have a meaningful relationship with the wife. The orders which have been in place already provide for the children to spend time with the wife on weekends and holidays and on other days. The wife has an opportunity to be involved in the children’s daily routine on Tuesday evenings and on weekends. When the children are not spending time with her, she regularly attends their sporting and other extra-curricular functions.
The orders proposed by the wife would not limit the meaningful relationship the children have developed with the husband.
(b)The need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
Steps were taken by the husband in 2004 to restrict the time spent with the wife following upon her violent outburst in May 2004. Since that time the wife’s behaviour has improved, although she continues to excuse or minimise her violent, disruptive behaviour.
Until recently the wife was at times unable to control her emotions in the presence of the children and was on occasions upset and teary, which was causing the children concern. Following the advice from Ms L the wife appears to have also improved her behaviour in this regard.
Additional Considerations
(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 wishes.
This is one of the most significant factors to be considered in this case. L is 14. He will be 15 in May. N has just turned 12. They have been consulted by Ms L and asked their views on three separate occasions. Their views have been given considerable weight in the conclusions reached by Ms L in her three written reports.
I accept the evidence of the husband that the children were pleased to have their views taken into account when the final written recommendations were made by Ms L.
The wife agrees in her evidence that the children have expressed the views that are set out in Ms L’s report and that they have similarly expressed those views to her directly, although the mother wonders whether the children’s views have been influenced by the husband.
The husband accepts the possibility that the children’s views have been to a certain extent influenced by their knowledge of his views, but does not concede that the children’s views have been unfairly or inappropriately influenced by his own.
The children have expressed views to Ms L which have not necessarily matched the views of the husband. They have expressed these views knowing that the husband has had different views and that their mother was seeking more time.
The weight to be given to the children’s views needs to take into account several factors. One of the significant factors is the age of the children. Another significant factor is the past experience of the children. The children were present when their mother assaulted their father. N was in the house when the wife banged on the walls and the windows and yelled out. I accept that this would have been an unsettling and upsetting experience for N.
N and L have also experienced the wife’s teary and emotional behaviour.
L in particular, has reacted to the wife continuing to borrow money from him, notwithstanding that he has expressed displeasure at this.
Another significant factor which may form the basis of the children’s views are their circumstances in the husband’s home. They are 12 and 14 year old boys living on a farm where they have their own car, motorbike, pigs and chickens. They are involved in and enjoy the farming activities, their sporting activities and their extra-curricular social activities. They have a good relationship with the husband’s current partner.
Considering the events that have happened and the circumstances that have existed since the separation of the parties, the ages of the children and their current circumstances, the views expressed by the children should be given significant weight.
(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)
The children have been residing with the husband since the parties separated. Recently they have also resided with the husband’s partner, Ms P. It was accepted that they have a good relationship with the husband’s new partner, Ms P.
The husband accepted that recently the children had enjoyed their time with the wife. The evidence indicates that they have a close relationship with the wife. However, at times the wife has become upset and teary in conversations with the children.
(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.
The wife’s case suggested that she called into question the ability of the husband to encourage a close continuing relationship between the wife and the children. The husband has at times prevented the children from spending time with the wife or has argued strongly for only a limited time to be spent by the children with the wife. Taking into account the events of May 2004 I find however that there was some basis for this view taken by the husband. The husband should however take steps to ensure that, whilst the wife’s behaviour continues to be appropriate, he continues to encourage the relationship between the children and the wife.
(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.
The time proposed by the wife for the children to spend with her is not likely to be a separation which would affect the children however, these changes would be a break with the consistency and stability of the past. I accept Dr S’s evidence that consistency and clarity is important for the children and in particular, N. The evidence of Ms L in her third report also emphasised the stability of the existing arrangements.
(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
Although the parties live a little distance apart there were no significant issues concerning practical difficulty and expense whilst both parties reside in the P area.
(f) the capacity of:
(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;
to provide for the needs of the child, including emotional and intellectual needs.
The husband called into question the wife’s capacity to provide for the children and particularly emphasised that she was inconsistent and at times irrational. He referred to her financial difficulties, which he said was evidenced by her borrowing from L. The wife insisted that she was able to care for the children, was not inconsistent and could manage financially.
The wife has in the past not shown a capacity to provide for the emotional needs of the children by her tearful behaviour in the presence of the children, but she assured the Court that she has changed her behaviour.
(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;
As previously indicated when discussing the children’s views, L is now 14 and will be 15 soon. He is progressing well at school. N is now 12. His health problem appears to be satisfactorily treated.
The lifestyles of the children includes their outdoor activities associated with the farm, their sporting commitments and social activities. These considerations are relevant to the arrangements which will be put in place and the time they spend in the care of each of their parents.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The husband has displayed an appropriate attitude to the children and the responsibilities of parenthood. The wife’s behaviour in May 2004 was one which did not demonstrate an understanding of the appropriate responsibilities of parenthood. In recent periods, particularly in 2006, it appears that the conflict between the parties has settled. The husband’s partner, Ms P, has been a positive influence. She assists in negotiating arrangements. The wife has taken the advice of Ms L and has accepted her responsibility to isolate the children from her emotional distress.
(j) any family violence involving the child or a member of the child’s family
I have already dealt with the findings I have made about the wife’s violent behaviour towards the husband in the presence of the children in May 2004. I am not satisfied that the wife fully appreciates her responsibility for such behaviour, nor did she seem to be appropriately contrite. The wife’s behaviour appears to have improved since then.
(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;
The Family Violence Order has now expired.
(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
It is usually preferable to limit the proceedings between parents concerning children. In this case the orders which the parties are seeking include orders which give flexibility by providing the children with the right to negotiate with the wife about changing the orders. Whilst this type of order may not necessary result in further proceedings, it does not provide the certainty that specific orders give to the parties and the children. As is often the case the Court must weigh the advantages of flexibility against the advantages of certainty.
As previously indicated the provisions of Section 65DAA (2)(c)(d) require the Court to consider whether spending substantial and significant time with each of the parents would be in the best interests of the children and whether such an arrangement would be reasonably practicable. The time which the children currently spend with the wife already includes time on weekend and holidays and times that do not fall on weekends or holidays, to a limited extent allows the wife to be involved in the children’s daily routine (after school on Tuesday to 7.30 pm) and occasions and events that are of particular significance to the children. The arrangements proposed by the wife would increase the capacity of the wife to be involved in the children’s routines and would bring about a greater emphasis in terms of the subsections in Section 65DAA.
Subsection (5) places emphasis upon whether any arrangement would be reasonably practicable and requires the Court to have regard to certain factors including subsection (c), (d) and (e):
“(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 difficulties in communication between the husband and wife were significant in the past. Recently the communication book has been used in a way in which has reduced the conflict between the parties. The husband’s current partner, Ms P, has also given significant assistance in the reduction of conflict.
I accept the evidence of the husband that the children have benefited from and placed reliance upon the past consultations about their views. N is 12 and L is 14, nearly 15. They have expressed their views. I am satisfied that an arrangement for alternate weekends, as proposed by the wife, would have an impact upon both children and that would be a negative impact likely to develop a resentment of the children towards the wife. Similarly, they have expressed views about mid-term holidays. Such views are likely to be based not only on their knowledge of their father’s views, but also upon their own preference for flexibility and their involvement in the farm activities.
I have considered the possibility of the children spending more substantial and significant time with the wife in the context of whether that would be in the children’s best interests, taking into account the matters that are relevant to these proceedings, in particular the matters discussed under the provisions of Section 60CC.
Summary and Conclusions
As I have indicated because of the ages of the children and the circumstances of this particular case in which their views have been formed, significant weight should be given to the children’s views. I also place emphasis upon the successful stability which has been established whilst the current orders have been in place. Whilst Ms L’s evidence indicated that spending more time with the wife might be a possibility in this matter I am satisfied that other factors indicate that the stability which accords with the children’s views represent the significant factors in this matter. I have taken into account the fact that the children have a meaningful relationship with the wife which has been established and continued, notwithstanding the reduction of the time they have spent with their mother since May 2004.
Therefore the provisions of the existing orders relating to the time spent with the wife during school term will continue to promote the children’s best interests.
I understand and accept the attitude of both the husband and the wife to the proposed order giving the children the ability to negotiate changes with the wife about the occasions they spend time with her (the wife’s proposed order number 6). It is also appropriate for the Independent Children’s Lawyer’s counsel to express reservations about such an order as it appears to involve the children in possible ongoing disputes between their parents. Generally terms of orders made in proceedings between the husband and wife can be altered by consent and where the relationship between the parties is appropriate this can be done without causing problems for the children or conflict for the parties. The recent improvement in the reduction of conflict between the parties hopefully suggests that such negotiations can be centred around what is best for the children taking into account their views, particularly as they develop in maturity and seek further independence.
Rather than include the order as sought by either the husband or the wife I propose to have it noted at the commencement of the orders that the children and each of them are free to negotiate with the husband and the wife changes to the occasions during which they spend time with the wife, but that such changes must have the consent of both of the parents.
The order that is currently proposed by the wife suggested that such changes could be made, but not to the “amount of such time”. I can understand the basis for this suggestion, but take into account that any emphasis upon mathematical or specific lengths of time may increase the risk of conflict. Unless both parties agree to the changes, then the Court orders should prevail.
I certify that the preceding one hundred and forty nine (149) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 9 February 2007
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Family Law
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Appeal
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