Waring and Boswell

FAMILY COURT OF AUSTRALIA

WARING & BOSWELL

[2007] FamCA 597

FAMILY LAW - CHILDREN – With whom a child shall live - With whom a child spends time – Application to change longstanding arrangements – Whether change in best interests

Family Law Act 1975 s60B, s60B(1), s60CC, s60CC(1), s60CC(3), s61DA, s65DAA(1), s65DAA(2), s79A

APPLICANT:

MR WARING

RESPONDENT:

MS BOSWELL

INDEPENDENT CHILDREN’S LAWYER:

Independent Children’s Lawyer

FILE NUMBER:

MLF

6540

1999

DATE DELIVERED:

15 May 2007

PLACE DELIVERED:

Albury

JUDGMENT OF:

Brown J

HEARING DATE:

15 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

The father in person

COUNSEL FOR THE RESPONDENT:

Ms Boyle

SOLICITOR FOR THE RESPONDENT:

Adams Leyland

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Ms Wearne

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Legal Aid Commission of New South Wales

Orders

That all previous parenting orders and injunctions in respect of the children of the marriage the elder daughter born … October 1993, younger daughter born … January 1995 and son born … February 1996 be discharged.
That the husband and the wife have equal shared parental responsibility for the children save that the wife be solely responsible for decisions relating to :
(a)the children’s education; and
(b)the children’s health, including their psychological health.
That the children live with the wife.
That the younger daughter and son spend time with the husband as follows :
(a)Each alternate weekend from Friday at 5.15 pm to Sunday at 5.45 pm (or, if the following Monday is a public holiday 5.45 pm Monday);
(b)Each alternate Monday afternoon from the conclusion of school until 7.30 pm, commencing 28 May 2007, such time to be suspended during school holidays and resume on the second Tuesday after term resumes, provided that time pursuant to this sub-paragraph be conditional on notice having been given pursuant to paragraph 11 hereof;
(c)For half of each school holiday period at times to be agreed between the parties and failing agreement:
(i)the first half in 2007 and each alternative year thereafter; and
(ii)the second half in 2008 and each alternate year thereafter;
(d)For Christmas (if the children are not already spending time with the husband pursuant to paragraph 4 (c), from 4.00 pm 24 December until 1.00 pm on Christmas Day;
(e)For no less than 2 hours on each of the children’s birthdays and the father’s birthday, such time to be spent in C if the birthday falls on a school day; and
(f)At such other times as are agreed between the parties.
If the children are spending time with the husband for the first half of the summer holidays pursuant to paragraph 4 (c) hereof, the husband will return the children to the wife from 4.00 pm 24 December until 1.00 pm Christmas Day.
If Father’s Day falls on a weekend that the children are not otherwise to spend time with the husband pursuant to these orders, the children will spend Father’s Day weekend with the husband in lieu of the next weekend they are scheduled to spend with him.
If Mother’s Day falls on a weekend that the children are scheduled to spend time with the husband pursuant to these orders, the children will spend Mother’s Day weekend with the wife and will spend time with the husband on the following weekend, in lieu.
The wife will positively encourage the elder daughter to spend time with the husband and her siblings at the times set out in paragraph 4 hereof, and, in particular, paragraph 4 (b).
The husband will ensure that the younger daughter and son attend all sporting fixtures and matches for teams to which they belong, which fall on weekends that the children are with him.
That the time the children spend with the husband be facilitated by;
(a) In respect of paragraphs 4 (a) and 4 (c):
(i)The wife will deliver the son and younger to the local Children’s Contact Service (“[CCS]”) at the commencement of their time with the husband, from which place the husband will collect them, subject to paragraph 10 (a) (ii) hereof;
(ii)If the husband wishes to do so, and gives 48 hours notice to the wife and the local CCS, the husband may collect the younger daughter and son from their Saturday morning sporting fixtures during the AFL / netball season(s) instead of collecting them at the local CCS at 5.15 pm on the preceding Friday; and
(iii)The husband will deliver the son and younger daughter to the local CCS at the conclusion of their time with the husband, from which place the wife will collect them.
(b)In respect of order 4 (b) :
(i)The husband will collect the children from their respective schools at the commencement of their time with him; and
(ii)The husband will return the children to the care of the wife at the conclusion of their time with him, by delivering the children to the wife’s home AND the husband will remain at all times in his motor vehicle when returning the children to the wife and will leave the vicinity of the wife’s home as soon as he observes that the children have safely entered the wife’s home.
(c)In the event that the local CCS is unavailable for a change over, then changeover will occur in front of C Police Station.
The children shall communicate with the husband by telephone on each Wednesday evening, such calls to be facilitated by the wife, and during the telephone call preceding each period of time with the children pursuant to paragraph 4 (b) hereof, the husband shall advise the children whether he does or does not intend to spend time with them pursuant to that paragraph in the following week.
Neither party will knowingly allow any person who is not the current holder of a driver’s licence to drive a motor vehicle of which the children are occupants.
That each of the parties be restrained from discussing these proceedings with the children or any of them, including discussing matters in issue in the proceedings, and from attempting to influence the children’s wishes in relation to where they live and how much time they spend with the parent with whom they do not live.
That as soon as practicable the wife authorise the principal of each school attended by a child of the marriage to provide to the husband, at his expense (if any) ;
(a)a copy of each school report for the child; and
(b)a copy of each photo order form for the child.
That the husband be at liberty to attend activities and functions at the children’s schools which are routinely attended by parents.
That each party notify the other as soon as practicable of any serious injury or illness suffered by a child when in his or her care and advise the other of the name and telephone number of each treating medical or like practitioner, and authorise those practitioners to discuss the child’s symptoms, prognosis and treatment with him or her.
That if the father would prefer to spend time with the children pursuant to paragraph 4 (b) on a Wednesday rather than a Monday, he advise the solicitor for the wife and the independent children’s lawyer of that within fourteen days hereof, and thereafter paragraph 4 (b) operate as if it refers to Wednesday in lieu of Monday.
That specific changeover times provided for in these orders may be varied to suit the availability of the local CCS.
That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all extant applications be otherwise dismissed.

IT IS DIRECTED

That these proceedings be removed from the List of matters awaiting finalisation.
That the reasons for judgment this day be transcribed and that copies be made available to the parties.
That all documents produced pursuant to subpoena filed herein be returned forthwith to the party or institution producing same.

IS CERTIFIED

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES
A.The children are of an age where they have significant and increasing sporting, social and extra-curricular activities which may occur when they are scheduled to spend time with the husband pursuant to these orders and the parties shall co-operate with one another and be flexible with respect to arrangements for the children to spend time with the husband, including ;
(i)the husband facilitating the children’s attendance at those events whilst they are spending time with him; and /or
(ii)varying pick up and/or delivery times on weekends that the children are scheduled to spend time with the husband; and/or
(iii)allowing the children to have contact together or individually; and/or
(iv)swapping weekends the children are scheduled to spend time with each of the parties, to ensure the children attend their sporting, social and extra-curricular activities and events.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6540 of 1999

MR WARING

Applicant

And

MS BOSWELL

Respondent

REASONS FOR JUDGMENT

This case involves the parties' three children, the elder daughter, who is 13, the younger daughter, who is 12, and the son, who is 11. The parties began living together in about 1990, married in May 1994, separated in about July 1998 and were divorced in November 1999. They have thus lived separately and apart for a long time.
On 21 July 2000, final parenting and property orders were made by consent. Today the father has told me that he does not feel as if he “really consented” He has also made it clear that he has been unhappy about aspects of those orders. Nevertheless, they were made, and they stand unless and until they are set aside or discharged or varied. There has been no application to set them aside pursuant to s. 79A of the Family Law Act1975. They bind the parties. I note that the parties operated pursuant to those parenting orders, in a relatively tension-free way, for quite some time.
The 2000 orders provided for the children to live with the mother. One set of contact orders was to operate if the father remained living in Melbourne; another set was to operate if he lived in reasonable proximity to the mother. Since the father returned to live in W (the mother and children remain in C) it is the latter set that have been operating.
These provided for him to have contact with the children on each alternate weekend, from 4.00 pm on Friday to 6 pm on Sunday, for half school holidays, and on a number of special days. In addition, there were orders for contact from the conclusion of school until 7.30 pm on Tuesday and from the conclusion of school on Thursday until 6 pm. It was thus a regime which provided regular and frequent opportunities for contact.
The evidence of both parties is that the contact after school on Tuesdays and Thursdays never occurred. The father’s evidence was that the round trip between C and W was too long. He did not seek to exercise that contact less frequently (for example, once a fortnight or once a month); it simply did not occur.
The parties have very difficult recollections and perceptions of the family’s situation at the time the 2000 orders were made, and about events in the period after their separation. The father, in particular, is still very concerned about that time.

EVIDENCE

The father relied on two affidavits, one sworn when he was legally represented, on 2 February 2006 and one sworn when he was not represented, on 7 May 2007. He also tendered a statutory declaration made by Mr and Mrs F of A on 12 May 2007. The bulk of that document sets out their understanding of the historical background to the parties meeting, their socialising together and the circumstances of the separation. Only the last few lines are relevant to matters in dispute in these proceedings.
Mr and Mrs F declared that they observed occasions when the children became upset and cried when it was time to return to their mother’s home, saying they did not want to go home to mummy, but wanted to stay with daddy. They noted that for about two years, the father has not had the elder daughter to stay with him, and asserted that is because her mother does not want her to attend, something about which they have no personal knowledge. They stated that they have known the father to be a loving and caring father to his children and a good parent, giving them the care and support they need.
Mr and Mrs F were not cross‑examined. Their evidence is an endorsement of the father's love for his children and observations of his parenting, consistent with that which Ms D observed. I place weight on that part of their evidence.
The father is 41. He deposed to doing casual courier work, which obviously takes up much of his time. He lives in W. He has not seen the elder daughter since 23 October 2003, save in a counselling session for the family report. He attributed her refusal to attend to her mother, as do his friends, Mr and Mrs F. He expressed concern that the younger daughter was becoming more resistant to attending, and did not attend regularly for a period from about the middle of 2004. Nevertheless, the evidence is that the younger daughter has been seeing him regularly and there have been fewer problems once the parties started using a contact service for changeovers.
It is clear the father has some difficulty in accepting the reality of the orders made in 2000. As Ms D said, his unhappiness is still prevalent and it is probable his views of the mother have not changed since then.
An illustration of his position is contained in the form 13 he swore on 26 April 2007. That records him as sole owner of the house in which the wife and children live in C, which was the former matrimonial home. The reality is that that property was transferred to the mother as a result of final property orders made in 2000.
The father candidly agreed that he was still angry and upset about the property orders. He gave evidence of things allegedly said to him by court staff, police and other people about the Court's lack of power to make the orders. Clearly, the court had the power to make the orders.
Understandably, the father found it difficult to question his former wife. He was keen to traverse areas which are not relevant to these proceedings, as he did in the statement which forms part of his affidavit sworn on 7 May 2007.
Ms D reported that the father’s learning disability and its nature and extent had “perhaps not been adequately explored” and recommended a cognitive assessment. None was undertaken. I accept the ICL’s explanation at the call-over that no appointment was available until well after this circuit and I am not satisfied the trial should be adjourned to allow such an assessment. No-one sought such an order and, in my judgment, the determination is not adversely affected by any such apparent omission. A cognitive assessment may provide an explanation for the father’s difficulty in focussing on the present, rather than the past, or managing his emotional responses in the children’s presence. It is, however, unlikely to solve those difficulties.
I do not doubt the father’s love for and commitment to his children. He struggles to shield them from the difficulty he still experiences dealing with his anger and grief following separation; almost nine years after separation he was keen to refer to events which he alleged occurred in 1998 and 1999 and he continued to focus on his negative views of the mother, and the consequences of final property orders. He had some trouble following sequential trains of thought.
The mother is almost 36 and lives in C, about 45 minutes drive from W. She has two other children from a relationship with Mr W; son K is five and daughter E is four. Daughter E suffers from autism. The mother and Mr W separated about two years ago.
This year, the mother formed a relationship with Mr R who was involved in the family reporting session. Having heard Ms D, it is probable she knew of the mother’s relationship with Mr W, assumed it was continuing and asked that the mother’s partner attend. Having regard to the relative recent commencement of the mother’s relationship with Mr R, Ms D may well not have specifically sought his involvement. Nevertheless, it means the court has a window into the children's relationships and interaction with him.
I found the mother to be a candid witness. She made a number of concessions which she must have realised were not going to reflect well on her, and did she not try to paint an overly rosy picture. She relied on an affidavit sworn by her on 27 April 2007.
The court also has the benefit of a family report prepared by Ms D, dated 13 April 2007. She was called and, briefly, cross‑examined. I found her to be a cogent and insightful witness and I place weight on the report and her evidence, aspects of which I will consider later. A number of documents relating to the children's schooling were tendered by the ICL, others were tendered by the father.

PROPOSALS

The father's application is that the children move to live with him and spend time and communicate with their mother much as they have been doing with him. The mother's initial application was simply for his application to be dismissed, however she now does seek a number of variations to the orders made in 2000.
The independent children's lawyer submitted that nothing in the evidence satisfies the threshold necessary to reopen the question of residence. In my judgment, the best interests of these children will be met by the court determining all outstanding issues now. The mother wants to vary the 2000 orders and that is necessary, as the elder daughter has not been going on contact visits. The orders need to be refashioned to take account of the children's now ages, and the reality that the weekday contact with their father has never taken place.
After the orders were made in 2000 contact was relatively uneventful, save that the father never availed himself of the provision for contact after school during the week. From the elder daughter's birthday in 2003, she stopped attending. The father can see nothing in his conduct that contributed to that; from his perspective, the problem lies with the elder daughter, or the mother. What the elder daughter said to Ms D provides a window into her views. The elder daughter began menstruating early. It is likely she had more than her share of the problems and tensions which often arise around puberty and adolescence. It is very encouraging to read that she is now settling at school. Her reports are very much better. It is particularly encouraging to see that she is rated well in terms of her social interaction with peers, politeness and respect for others.
Having said that, there is also evidence that the elder daughter can be a feisty little girl. She has a mind of her own and, on occasions, probably tells both of her parents what she thinks about them. It cannot be ignored that she was distressed enough to decide she did not want to see her father in 2003. While there is still a connection between them, she has maintained her view and that view is based on her experience.
In 2004 the younger daughter became reluctant to spend time with her father. There were problems in relation to Christmas contact that year. On 19 December 2005 there was an incident at this court (to which the father deposes in his own affidavit) after the father lost his temper. Police had to attend to escort the mother from the premises. In his affidavit, the father apologised for that and explained the circumstances that (in his mind) gave rise to it.

The wife's evidence is that she has been fearful of the father since that time. From her perspective his behaviour then was consistent with that which he had displayed soon after their separation, and during their relationship.
On 24 March 2006 the parties agreed to use the local Children's Contact Service for changeovers. That was a constructive decision and the younger daughter has been attending contact since then, give or take a few occasions. The elder daughter refused to speak with her father at the contact centre in April 2006, which was no doubt distressing to him. The elder daughter did have some interaction with the father in the course of preparation of the family report, which was more positive.
When he was asked why the children should come and live with him, displacing the longstanding arrangement, the father gave a number of reasons. First, the children needed to get away from the mother's drug use. Second, they needed to be protected from her violence; he related this to an incident when, he alleged, the mother held a knife at his throat many years ago. Third, the elder daughter’s behaviour in the course of a phone call in October 2006 demanded they move to live with him. Fourth, he had been told a week earlier that Mr R, the man with whom the mother is in a relationship, is a drug user.
The father was concerned that the police records of Mr W had not been subpoenaed. I accept he had a legitimately based expectation that was to occur; it may very well have been considered and recommended by a registrar conducting a preliminary hearing. Having regard to the fact that Mr W has been out of the mother's life for two years, her ready concession that he used drugs - I will say something else about that in a moment - and the sad reality (sad for the children) that he is not seeing son K and daughter E, I am not satisfied that any prejudice results from that omission. Further, I am satisfied that nothing in the evidence suggests that police records for Mr R should have been subpoenaed by the ICL.

LEGAL PRINCIPLES

The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

PRIMARY CONSIDERATIONS

When determining what is in a child’s best interests the primary considerations are :
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These are consistent with the objects set out in s.60B(1).
Clearly, it would be to the benefit of all three children to have a meaningful relationship with both of their parents. At the moment, the younger daughter and son have such a relationship. The elder daughter maintained telephone contact with her father until October 2006. That stopped after an argument about drug use, or what the elder daughter was saying about drug use. There is no doubt the elder daughter is tired of her father’s constant complaints about her mother’s alleged drug use and his conviction that the elder daughter’s life at home is as perceived by him, rather than by her. The interaction recorded in the family report suggests that the door is open for the elder daughter to resume an ongoing meaningful relationship with her father and orders of the court should be directed to achieving that.
Equally important is the need to protect the children from physical or psychological harm. There is no doubt (the father conceded this) that he was convicted in 1999 of an assault on the mother occasioning actual bodily harm. I am satisfied that the mother suffered a broken elbow as a result of the assault. That altercation occurred in front of the children. The children were at his home and to be collected by her. The father came out of the home and, he says, pushed the wife. She fell to the ground, injured. When she and the children fled he followed them in his car, demanding the children return to his home for a meal. Exposure of children to violence of that sort tends to have long‑term ramifications; not infrequently it rebounds on the perpetrator.
The mother candidly agreed that after she and Mr W separated, there was an argument outside her house in which he was shouting. She agreed that was not in the children's best interests, and said she ensured it never happened again. The children may well have been exposed to that.

ADDITIONAL CONSIDERATIONS

These are important in this case.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
With Ms D, the younger daughter said that she wanted to live with her mother and have weekends with her father. She said sometimes she does not feel like going; by way of illustration she said "I would like to be able to play netball," her netball team playing in C. She told Ms D that her father had called her fat and lazy, but that he did so less once she asked him to stop. She also said that if she had her period, she would like to stay with her mother, a not unusual response for a young girl still getting used to dealing with menstruation. That normal shyness may have been exacerbated by her discomfort when she began to menstruate, unexpectedly, when at her father's home. She had not come with any appropriate sanitary supplies, and there was some delay in purchasing them, although I am sure the father did what he felt best. He did agree to her request to go home to her mother, when she said she wanted to see her. Young girls take a while to settle in a menstrual routine, as demonstrated by the elder daughter, and the younger daughter may take a while to feel comfortable about aspects of that.
The son was described by Ms D as a cheerful and easygoing boy and he sounds a delightful child. He did not want to express a preference about residence, which is explicable and normal. He said he would like to keep seeing his father every second weekend and he would like to spend a bit more time with him.
The mother, when asked about the son's views, was candid. She said he had spoken of wanting to live with his father and they gave some thought to a trial of that arrangement in the Christmas holidays of 2004-2005. After that, the son decided he would be happy staying where he was. He may well be a boy who would be happy in either home. No-one has suggested the children should be separated. While the court could consider it, it would be a very significant change and the ramifications would need to be teased out.
The elder daughter was very clear when with Ms D that she did not want to live with her father, or go on contact on weekends. She said her father called her "fat", continually said derogatory and negative things about the court and about her mother doing drugs, and that she was “sick of it”.
The father's explanation for the daughter stopping seeing him in 2003 is that she wanted to live with him, and was very upset that her mother would not allow that. That may be his genuine view but I have no doubt that is not what prompted the daughter's decision. It is probable she made that decision based on what she felt was his refusal to listen to her and his inability to refrain from criticising her and her mother, often in highly inflammatory or insulting ways.
The elder daughter did continue to speak with her father by telephone until October 2006. The mother's evidence is that after the October phone call the elder daughter was very distressed. She said her father had called her a retard, told her she had to go to counselling and said that he would call the police if she did not. After the conversation, the elder daughter said she would kill herself if she were made to speak to her father again.
I accept the mother's evidence of what she was told by the elder daughter. No one can say whether it was an exactly accurate account of the conversation. However, it is clear that whatever was said to her by her father made her very unhappy and very distressed. The father's own evidence suggests that he did tell the elder daughter in the course of the conversation that the police would be called in relation to issues relating to drugs. I have no doubt that, from the elder daughter’s perspective, her father again was focussed on denigration and that, for her, it was the last straw.
(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);

Ms D's evidence was that all three children have a warm and appropriate relationship with the wife and with Mr R. They also enjoyed very good interaction with their father. He was sensitive to the elder daughter's reluctance and she relaxed (having initially said she would turn her back on her father and have nothing to do with him) to the point of smiling and laughing in the room with him.
From that experience the father extrapolated that the elder daughter would be happy to move to live with him. I am satisfied that is a very over-optimistic extrapolation and perhaps indicative of the difficulty he has in working through logical sequences. Last year, when the ICL suggested that the father and elder daughter attend some family therapy, he was not interested in that. He made it clear that, in his view, he did not need counselling. From his perspective the children's mother was the one who needed therapy. The evidence suggests that the elder daughter herself subsequently made it very clear that she did not want to be involved in any mediation efforts.
The father made it clear that he is keen to ensure that orders are complied with by the mother, whether they are a version of the existing orders or fresh orders providing for the children to live with him. He agreed that at the moment, the orders which provide for the children to spend time with him are working well and are not being breached, save in two respects. First, he is not seeing the elder daughter. Second, the midweek contact has never been sought by him. He then said that he wanted “something done about the drug use” and that he would get a court order to have the mother's house searched for drugs, indicative of his focus on her, and of the difficulty he has in focussing on the children and engaging with the current reality of the children’s lives.

(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
(f)the capacity of :
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude. I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :
(4)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.
The father remains distressed by the separation, circumstances after separation, the property orders and the parenting orders. It is probable he has been unable to stop himself talking with the children about his view of the mother as a drug user and abusive person, and that he has been perceived by the girls to be insensitive as they entered puberty, particularly about their appearances. He attended a parenting young adolescents program in the middle of last year, which is to his credit. He struggled to tell the court anything learnt there, contending that the woman who ran the course had said he did “everything right” and did not have any problems. There would be few parents of adolescents who would deny there are things to be learnt about parenting them and it is to be hoped the father did gain some insights through that course.
The court can find that neither parent has been able to promote the other's parental relationship as much as would be desired. That must be seen in the context of their conflictual relationship when together, the assault conviction in 1999 and their apparently intractable inability to communicate since separation. It is rare to be told, almost nine years after parties separate, that parents never speak to each other, particularly when children are moving relatively frequently between their two homes. The negative impact of their attempts at communication can be illustrated by the change in the younger daughter’s attitude to spending time with her father once changeover occurred in the neutral environment of a contact service.
Ms D noted that it is likely the parents would experience difficulty reaching agreement on important decisions because of the historical, conflicted and acrimonious relationship. Unfortunately, as she noted in her evidence, there seems little potential for change. To the parents' credit, while they have disagreed about a number of things relating to their children and each other, there have not been the disputes which often occur about the schools children are to attend, or their health. In final submissions, the father said he would like an order that he be told of any significant illness or injury the children suffer. That is a reasonable expectation, as is that of the mother that she be told if a child is hurt or becomes ill when with him.
The ICL provided a note of proposed orders to the parties prior to the trial. She proposed that on each alternate Tuesday, the father spend time with the children from the conclusion of school until 7.30 pm. Ms D saw that as a way for the son to see his father a bit more, something he was keen to do. She also saw it as a window by which the elder daughter might be able to start spending some time with her father. If he came to C each second Tuesday, the elder daughter might choose to go with her siblings for all or part of that time with the father, and resume some contact with him.
Initially, the husband's evidence was that any such arrangement would pose problems because he finishes work between 3 and 5pm. He said that, at a moment's notice, he can be asked to go off and do a delivery somewhere, which can take quite a while. In the course of final submissions - it is not evidence but I act on it, being confident neither counsel will take objection to me doing so - he advised that he is also doing a TAFE course on the Tuesday night. Tuesday is thus not an appropriate day; Monday or Wednesday may be better alternatives. Time with the children each second Monday would be better in terms of the period between visits, but cafés may not be open in C.
Having seen the father in the witness box, I do not doubt his great love for his children and that he wants to act in their best interests. However, his evidence demonstrated a lack of insight into aspects of their emotional lives. For example, he thought that although his relationship with the elder daughter was not good at the moment, there would be no problem in her coming to live full‑time with him, immediately. He has not spoken to any of the children’s teachers, although he has had reports from B High School and did agree that the elder daughter was doing reasonably well at school and that there were far fewer problems with absenteeism since she went to that school.
The father agreed there had been occasions when the younger daughter has not wanted to come for contact or had wanted to go home early; he said once she invented a party as an excuse for this. It was of concern to me that he was not prepared to vary contact arrangements so she could attend her graduation party from primary school in December 2006. It fell on “his” weekend and he was apparently unable to acknowledge that such an event is significant and in a different category to an every day invitation to a party or film or sleepover. There was a sense that he was preoccupied with his perceived entitlement to have the children with him rather than focussing on the children as individuals.
The father needs to realise that when the children are at home in C, they will spend a lot of time away from their mother. They will spend time with their friends and engaging in activities outside the home. If parents want to maintain good relationships with teenagers, they have to acknowledge their need for flexibility and autonomy, subject always to necessary disciplinary constraints.
The father's own account of the phone conversation with the elder daughter in October 2006 was not indicative of a sensible way to deal with a child who is already estranged from him and trying to work through some adolescent issues. He could see no problem with discussing his views of the mother's bad parenting and alleged drug use with the children, or discussing them moving to live with him, as long as “they brought it up”. I find it improbable that his conversation was always in the context of the children “bringing up” those issues. If they did, the sensible parental response would be to move sideways and divert attention from any such discussions rather than allowing his time with them to turn into a session of complaint about their mother. The father may not realise how preoccupied his is with his criticism of the mother but it permeated his evidence and it is likely it permeates his discussions when the children are with him. Based on Ms D's evidence, I can find that the girls, in particular, have found it very, very annoying, frustrating and distressing to have to listen to these conversations and it is very likely the father did not, and does not, realise how frustrating they found it or understand its implications on their relationship with him.

In relation to the drug issue, which is clearly a significant focus for the father, the mother agreed that Mr W used marijuana when they were together, and did so in her home. I accept her evidence that, to her knowledge, Mr R does not use drugs and I accept her own evidence in relation to drug use. There is no doubt that Mr W’s marijuana use was very poor role modelling for adolescent children. One does not need to hear judges thundering from the bench to know of the risks young people face with drug use and abuse; it is not good role modelling for children to see adults, at home, using drugs as a matter of course. It is to be hoped the mother will not let it happen again. I am mindful of the widespread use of marijuana in the community and that one cannot ignore that use. However, the reality is that marijuana use is illegal. It can adversely affect psychological functioning in vulnerable young people and it can affect adult capacity to parent in a responsible way and to respond properly in an emergency. It can lead to financial penalties and, ultimately, imprisonment, both of which can significantly and adversely affect young people in the care of the drug user.
The reality is that the parties do not communicate at all. They have no mechanisms to diffuse conflict and tend to leave that up to their children. As Ms D said, the children have coped tolerably well with it. They are reasonably resilient children yet it is clear that the elder daughter has not coped so well. There is no doubt the mother could have done more to sort out the elder daughter’s problems with her father, and she could have been more proactive in encouraging the younger daughter’s contact with him. That said, it was clear from his responses in court that logical discussion is not always easy for the father.
For a long time, the mother was required to do all the driving associated with contact. She has maintained the routine of taking the children to the phone box for the phone call on each Tuesday, and provided the money for them to make that call. She is bringing up five children, in very modest financial circumstances.

(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 children are well settled in C. The father saw no reason why they would not easily settle with him. It is clear from his affidavit that when he swore that he then proposed that the children move to W to live with him there; he specified the schools they would attend, being M Primary School for the son and the local high school for the girls. In the witness box, he suddenly said that he could move to be closer to C if the children wanted to stay at their present schools, but then said there were no houses presently available in C. He then spoke of a school bus, presumably to bus them from W to C for school, in either the short or the longer term. I cannot be sure about his specific proposals in relation to their housing or schooling.
I am confident that both daughters would be very, very unhappy if their residence were changed at this time. The elder daughter would be unmanageable and the younger daughter might not be far behind. Their views must be given weight. A move would take all the children away from their siblings, K and E. It is clear the father did not see that as a matter of importance, but it is a matter to which the court must give weight.
Asked about E's autism, the father said that he only found out “by accident”, two or three years ago, that the mother had any other children. That may have been a throwaway line, not meant to be taken seriously. I do not find that because he laughed when asked about E’s autism that he thinks that is a matter for humour. Courtrooms can make people very tense and they may respond in ways that, while potentially reflecting badly on them, do not reflect accurately on them. It is hard to believe that the father did not know that the mother had children, now aged five and four, until two or three years ago. The son would have been about six when K was born. Whatever children of that age are told (for example, "don't tell mummy this" or, "don't tell daddy that") the experience of the court is that it is almost impossible to constrain them. It is almost inconceivable that none of the three children said anything whatsoever about a new baby or about a birthday party or about being grumpy with the new sibling. It would be very, very unusual if not one of those three children, until two or three years ago, said anything to indicate they had two younger siblings.
The father's evidence was that the son told him he would not miss his siblings; for the father, that is all that counts. The son may well have said that to his father. What the son would actually feel were he not living with his siblings may well be very different; it is hard for a child to understand the reality of such a change. The father agreed the younger daughter might miss her mother and her siblings.
(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;

A number of submissions have gone to the issue of family violence. The father clearly found that frustrating. The events in this court at the end of 2005 were unfortunate, not only because they exposed the mother and court staff to a violent outburst but also because they suggested the father had not changed since separation and the events which led to the assault conviction in 1999. It is clear the children are very aware of the hostility between their parents. As I understand the evidence, there are no family violence orders currently on foot and there is no evidence of recent violence between the parties.

I do not find any evidence that the mother is physically violent to the children, as alleged by the father. She agreed that she yells and screams at them. That is a concession many parents would make. She also uses other forms of discipline, such as time out and removal of privileges, useful additions to the disciplinary armament.

When cross‑examined, the father did not suggest the mother hits the children but said she yelled at them. The quality of the children’s relationship when observed with the mother is inconsistent with a finding that they fear her, or have been subjected to inappropriate discipline.
(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;
Proceedings such as these place stress on children. They stress them directly in that they know of them, and must see family reporters or other experts. They stress them indirectly because their parents are distressed by the litigation and parental stress can impact on parenting of children. Final orders would be in their best interests.

(m)any other fact or circumstances that the court thinks is relevant;

It is important that the Court considers the objects and principles set out in s.60B.
I note Ms D's opinion about the husband's learning disability, of which he spoke to her. He is also a bit of a loner, to use his own expression. These factors have the potential to impact on his capacity to be sensitively attuned to the children's needs as they reach adolescence. As found earlier, Ms D considered the usefulness of a cognitive assessment. I did not gain any sense from the father that he thought that would be useful and, as found earlier, I am satisfied the court is not disadvantaged by that omission. There is a lengthy history of contact between the father and the children and although the mother opposes the father’s residence application she has not submitted that the younger daughter and son should not spend time with her.
I have had the opportunity to observe the father and the mother, as has
Ms D. As noted, the father is something of a loner and that, coupled with his learning difficulties, may mean he is a little isolated and more prone to be frustrated by uncomfortable personal experiences. He, along with many people in the community, has some trouble with written communication. That makes it more difficult, as the use of a communication book which passes between parents is not an option.
The father agreed that he tends to threaten lawsuits if he thinks he is not getting that to which he is reasonably entitled. He agreed, for example, that he threatened to sue the contact centre staff because they did not return a call on Good Friday. The reality is that lawsuits or reporting children or adults to police are blunt weapons. What the children in this case need is better parental communication, not more intervention by outside parties.
The father’s evidence in relation to Tuesday contact was that he had not made any inquiries about leaving work early. I understand the pressures on casual workers. It is easy to lose a job and hard to get another one. I must find that after hearing the father's evidence of his working hours and his inability to be confident that he could, every second week, be at the children's schools at the close of the school day, I had some concern as to how he would cope with the responsibilities of being a single parent of three children, as he seeks. Full-time parental responsibility is onerous and I could not find that the father understood all of its implications.

CONCLUSION

In conclusion, the children are well settled. They are doing well at their respective schools, and have improved their attendance. They are involved in their local community. In C they live with two younger siblings. They have a comfortable relationship with Mr R. The father's plans are inchoate. It is not clear where he would live with the children or how he would manage his paid work. He has given little thought to the dislocation that the girls would feel on being removed, against their will, from the settled environment in which they have lived for many years. It seems probable the parties will continue to live some distance apart and that, too, impacts on the orders the court can make.
It has been submitted that the presumption of joint parenting should not apply as a result of the family violence in 1999 and the father’s conduct at court in 2005. In the alternative, it was put that I should find the presumption rebutted. In my judgment, it is important for the father to know that he maintains a significant role in these children's lives and it is important for the children to know that, too. In this case I find it appropriate for the parties to have shared parental responsibility, save that the mother will be solely responsible for decisions relating to education and health. That does not mean the father is cut out from those decisions and he can be kept informed but the children’s best interests demand that one parent make those decisions. I am satisfied it is the mother who has the capacity to do that and to put the children’s best interests before hers. I am not confident the father has that capacity.
Orders will provide for the mother to authorise the school to provide school reports (she may already have done that, the ICL having observed that option ticked on subpoenaed records) and allow the father to attend activities at the school which are routinely attended by parents. As Ms D said, it is hard to think of other significant long‑term decisions which are likely to arise in the immediate future and there had not been disputes about choice of school or the children’s health in the past. The elder daughter is attending a church youth group. The father has said nothing to indicate he is not happy about the elder daughter pursuing that interest at this time. Nor has the mother. It is not at all uncommon for children of her age to be involved with youth activities in a church context.
I must then consider whether the children should spend equal time with each parent or, if that is not in their best interests, substantial and significant time. Neither has suggested an equally shared arrangement; it simply would not work, given their geographic locations, the children’s views, the parental relationship and the difficulties the father has in containing his criticism of the mother. It is just not practicable. The orders proposed by the independent children's lawyer would involve the father having substantial and significant time with the children, including time on school days, during school holidays and on weekends.
Balancing all factors, I am satisfied that orders should provide for the children to live with their mother and for the parties to have shared parental responsibility for them, save that the mother will have responsibility for matters relating to education and health. Orders will provide that each party advise the other as soon as practicable of any significant injury or illness experienced by a child when in his or her care. I mean "significant", I do not mean a cough, a cold, a sniffle or something that needs a bandaid or cough mixture. If a child is taken to hospital or is in a crisis, the other parent needs to be told.
I will also make the order foreshadowed in relation to the father’s entitlement to school reports and to attend the children's schools. It seems the father thought that he might not be able to attend the children's schools, although no order precludes that.
In terms of the father's time with the children, I propose to adopt the arrangement submitted as appropriate by the ICL. I would prefer to make the alternate weekday a Monday, as that allocates the period between the contact weekend and the mid week time. In the case of his phone communication on Wednesday evenings, the husband will be required to let the children know whether he is going to come to C to spend time with them after school in the following week.
I appreciate that judicial homilies are rarely of much use to parties. Nevertheless, if the son wants a bit more time with his father, I would encourage the parties to facilitate that. That is not an invitation to renew a residence application by another means. But at the son’s age, it is important he maintains his relationship with his father and a degree of cooperation is essential if that is to be achieved. Orders will provide that there be such additional contact as is agreed between the parties. That provides a window for contact with the son to be re‑established. It means the son can spend more time with his father if that is what is sought by him and is in his best interests. Conversely, the father needs to understand the younger daughter’s desire and need for some flexibility and the potentially negative consequences of failing to accommodate her reasonable requests.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown

Associate:

Date: 18 JUNE 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WARING & BOSWELL

[2007] FamCA 597

15 May 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness