Watkin and Clyve

FAMILY COURT OF AUSTRALIA

WATKIN & CLYVE

[2008] FamCA 1047

FAMILY LAW – CHILDREN – With whom children live

APPLICANT:

Mr Watkin

RESPONDENT:

Ms Clyve

FILE NUMBER:

PAC

3990

2007

DATE DELIVERED:

1 December 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

STEVENSON J

HEARING DATE:

23 April 2008
23 July 2008
7 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sansom

SOLICITOR FOR THE APPLICANT:

Flynn Conn Solicitors

FOR THE RESPONDENT:

In person

Orders

I make the following orders:

That all existing parenting orders in relation to the children K, born … September 1996, and S, born … December 1998 (‘the children’) live with the mother at all times other than the periods specified in order 2, during which they will live with the father be discharged.
That the children live with the mother at all times other than the periods specified in order 3, during which they will live with the father.
3.1 That the children live with the father from 5:30pm on Friday until 6:30pm on Sunday or Monday on a long weekend on the 1st, 2^nd and 4^th weekend in every 5 week cycle during school term time commencing on 5 December 2008 and thereafter on the first weekend of each school term.
3.2That the children live with the father for 10 days in the Easter and September/October school holidays; subject to order 3.5 and for half of the July school holidays.
3.3That the children live with the father for 4 weeks in the Christmas school holidays, subject to order 3.4.
3.4That the children spend the period from 5:00pm on 23 December until 5:00pm on 25 December with the father in even-numbered years and the same period with the mother in odd-numbered years.
3.5That the children will remain with the mother on the Mothers Day weekend and spend the following weekend with the father and the children will spend the Fathers Day weekend with the father and remain with the mother on the following weekend.
That the parties implement these orders by causing the children to be delivered and returned at McDonalds Restaurant in L, unless they agree otherwise in writing from time to time.
That the parties are at liberty to vary these orders by written agreement between them from time to time.
That pursuant to s.65DA(2) and s.62B, 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 material produced on subpoena be returned.

IT IS NOTED that publication of this judgment under the pseudonym Watkin & Clyve is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3990 of 2007

MR WATKIN

Applicant

And

MS CLYVE

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

Mr Watkin (the father) and Ms Clyve (known until recently as …) (the mother) are the parents of two children:
K, born in September 1996 (12), and
S, born in December 1998 (9)
The father and the mother each sought orders for primary residence and for the children to spend time regularly with the other parent.
The father lives in Central Western New South Wales and the mother is a resident of Western Sydney. According to the father the round trip between his home and Western Sydney is a distance of 730 kilometres. Obviously, this distance limits the amount of time which the children can spend with the non-residence parent.
The father proposed that the children live with him and spend time with their mother each alternate weekend from 5:30pm on Friday until 6:30pm on Sunday and for half of all school holidays. Changeovers would take place at L, which is approximately the midpoint between the parties’ homes.
The mother proposed that the children live with her and spend time with their father each alternate weekend, from the conclusion of school on Friday until 6:00pm on Sunday. The father would collect the children on Friday and the parties would meet at L on Sunday afternoon. The children would spend half of all school holidays with each parent in each alternate year and more than half of the total vacation time with their father in each other year.

Background

The father, who is 37, and the mother, who is 34, married in July 1995 and separated in February/March 2002. On separation the children remained with their mother and lived in a home in the Blue Mountains owned by her parents. For a short time the father rented accommodation nearby but, due to financial difficulties, he moved to a small rural property in central western New South Wales owned by his parents in June 2002. At this time the father was employed as a public servant. He obtained a transfer of his employment to Dubbo.
In May 2002 the mother commenced a relationship with Mr G, whom she married in October 2004. They separated in August 2007, apparently due in large part to Mr G’s use of drugs. There were disputed allegations that the children witnessed domestic violence between their mother and Mr G.
On 24 October 2003 interim orders were made by consent in the Local Court. These orders provided that the children spend time with their father from 5:00pm on Friday until 6:00pm on Sunday, on any weekend when he was rostered off work, and for half of all school holidays. The changeover point was McDonalds Restaurant at L.
Orders to a similar effect, in terms of the children’s time with the father, were made on a final basis on 29 October 2004. These orders provided that the father collect the children from school on Friday and return them to their mother at L on Sunday afternoon.
In November 2005 the father ceased employment in the public service, after several critical incidents. He said that he was diagnosed with post-traumatic stress disorder and consulted a psychiatrist for a period. Although there was no medical evidence, I accept that the father was diagnosed with this condition. I doubt that he would make this claim in parenting proceedings, unless it were true.
The father was medically retired from the Public Service on 7 June 2007. He currently takes antidepressant medication and, on medical advice, works no more than 30 hours per week. On his retirement he received approximately $267,000 as a lump sum, which he used in part to purchase an interest in a family-operated partnership. He works as a driver and tradesman in this business.
In January 2006 the father began to live with Ms P, whom he had met in 2005. Ms P’s 12 year old daughter lives with them and sees her father regularly. Ms P and her ex-partner make their own arrangements for their daughter to spend time with her father, without the need for court orders.
On 18 May 2006 orders were made by consent, to the effect that the children live with their mother and spend time with their father each alternate weekend from Friday afternoon until Sunday afternoon and for half of all school holidays. These orders provided that the father collect the children from school on Friday and return them to their mother at L on Sunday afternoon.
On 23 July 2008 interim orders were made after receipt of a report by a Family Consultant, Ms M. Following submissions on behalf of the parties, I ordered that the children spend time with their father for 2 out of every 3 weekends from Friday until Sunday afternoon. I also ordered that the children spend the first half of the October 2008 school holidays with their father. Provision was made for the father to collect the children from school on Friday and return them to the mother at L on Sunday.
The mother has now returned to her employment as a sales administrator. She took on a 7 month break from paid employment after her separation from Mr G. She works for 38 hours per week on Monday to Friday. A friend, Mr H, assists with before and after school care of the children.

Approach to These Proceedings

The principles which govern the determination of these proceedings are set out in the Family Law Act. In particular, these principles can be found in Part VII of the Act.
In determining whether to make a particular parenting order, the court is required to regard the best interests of the child as the paramount consideration: section 60CA. In determining what is in a child’s best interests, the court is required to consider the matters set out in subsections 60CC(2) and 60CC(3).
Section 60CC(2) contains two ‘primary considerations’ which apply to the determination of what is in a child’s best interests. The first consideration is the benefit to a child of having a meaningful relationship with both parents. The second consideration is the need to protect the child from physical or psychological harm resulting from being subjected or exposed to abuse, neglect or family violence. Section 60CC(3) contains 13 ‘additional considerations’ which are relevant to the determination of what is in a child’s best interests.
Section 60CC(4) obliges the court to consider the extent to which each of a child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent. In addition, this subsection requires the court to consider the extent to which each of the child’s parents has facilitated, or failed to facilitate, the other parent spending time and communicating with the child, as well as participating in decisions about major long-term issues in relation to the child. It is also necessary that the court consider the extent to which each parent has fulfilled, or failed to fulfil, the obligation to maintain the child.
Section 60CG requires that the court ensure that any order is consistent with a family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration. This section empowers the court to impose any safeguards which it considers necessary to achieve this purpose.
It is necessary also for the court to have regard to the objects of Part VII of the Act as set out in section 60B(1). The court must also have regard to the principles underlying those objects, as expressed in section 60B(2).
Section 61DA creates an obligation on the court to apply a presumption of equal shared parental responsibility, when making a parenting order. This 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 child abuse or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility: section 61DA(4).
It is important to note that the presumption created by section 61DA relates to parental responsibility and not to the amount of time which a child spends with each parent. The term ‘parental responsibility’ is defined in section 61B as ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’.
If an order provides that two or more persons are to share parental responsibility for a child, section 65DAC imposes obligations on those persons as to the way in which decisions as to major long-term issues relating to the child are to be approached. These decisions are to be made jointly by the persons who share parental responsibility for the child. Each of these persons is required to consult with the other and make a genuine effort to come to a joint decision. It is not necessary for a person with whom a child is spending time to consult with a person who has parental responsibility, in relation to issues which are not major long-term issues: section 65DAE.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for the child to spend equal time with each parent. If an order provides that the parents are to have equal shared parental responsibility but the child is not to spend equal time with each of them, the court must consider whether it is in the best interests of the child, and reasonably practicable, for the child to spend substantial and significant time with each parent: section 65DAA.
In deciding whether to proceed to make an order for a child to spend equal time or substantial and significant time with each parent, the court must regard the child’s best interest as the paramount consideration: section 60CA. The terms ‘substantial and significant time’ and ‘reasonably practicable’ are defined in subsection 65DAA(3) and (5).

The Primary Considerations: Section 60CC(2)

Each party proposed, essentially, that the children live with him or her and spend as much time as is reasonably possible with the other parent. They each specifically acknowledged in affidavit evidence, that it is important for the children to have an ongoing, loving relationship with their other parent.
In closing submissions counsel for the father said words to the effect:
“If the parents lived closer together, something close to equal time would best meet the children’s needs.”
For reasons which appear below, I respectfully agree with that proposition.
These admirable concessions suggest each of the parties perceives that the children currently enjoy a meaningful relationship with each of their parents, which will be of continuing benefit to them. Similarly, the concessions and proposals of each of the parties indicate that neither of them are of the view that there is any need to protect the children from physical or psychological harm. I doubt that I would have been called upon to make a decision about these children’s care arrangements, if their parents lived closer to each other.

The Additional Considerations: Section 60CC(3)

As required, I have carefully considered all of the factors set out in section 60CC(3). I now refer to the evidence in the context of those considerations which seem to me to be relevant to the determination of what orders are in the best interests of the children. It can be assumed that I do not regard as relevant those considerations to which there is no reference below in these reasons.
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;
The child K expressed a wish to the Family Consultant to live with her father, at least for a trial period of one year. Ms M reported as follows:
“[K] stated that she loves her time with her father at [central western New South Wales]; she explained that she loves going on the truck with her father; she also enjoys [the father’s partner] taking her shopping to visit her friend, […], in […] who has two children. Another reason she especially loved about being in [central western New South Wales] is that ‘Nan and Pop are there’. [K] discussed the sports she enjoyed playing and regarded herself as very good at all sports. She said that she would like to go to the pony club at […] but she did not yet have a horse but she was saving up for one.
[K] explained that she would like to live in [central west New South Wales] with her father; she said she had expressed this to her mother but her mother had become so upset that she felt that she could not mention it again. She added however that she would at least like to have a trial period of one year to live with her father and with [the father’s partner] to see how she liked it. [K] then added that she thought she would have to live six months with her father and six months with her mother to be fair to both of them. She said that she is planning to move out from her mother and live with a girlfriend as soon as she turns 18 as she wants to be alone.”
Ms M’s report continued:
“[K] stated that she wanted her father to attend her sporting events and school functions and added ‘but he says that he has too much work’. When asked her thoughts on this she replied definitively ‘there are other family members in the company who could do the work for him on those days’. She said that she had enjoyed her time at the court because ‘Daddy had to play with us’. In a sentence completion task [K] indicated that she worries about the fighting between her parents, it makes her sad.”
The child S also made it clear to the Family Consultant that she wants to spend much more time with her father. Ms M reported as follows:
“At the beginning of her interview in the playroom I asked her if she understood why she had come to see me; [S’s] little face became white and she suddenly sobbed and put her head into my arms. After I had comforted her and assured her that her feelings were safe, she regained her breath and amid tears, said ‘I just miss my daddy so much’.”
S continued: “I really love seeing my daddy.” She explained that she and her sister do lots of things with their father and “have lots of fun”. She said that she liked the father’s partner, adding that “she loves us very much. I would love her to be our stepmother”. She said that she becomes very upset when “I have to leave my daddy” and that her friend N sometimes helps to cheer her up when she returns to her mother.
S said further: “I love him really much” and “some day when I am older I want to live in [L] and visit Mummy and Daddy when I want to”. When given “three magic wishes” S tearfully said: “to have Daddy live near us so that I could see him all the time”. When asked what her other two wishes would be she replied “I have only one. That is all I want.”
Section 60CC(3)(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 M assessed the nature of the girls’ relationships with each of their parents as follows:
“It is assessed that [K] and [S] feel loved by both their parents and love both parents. It is also apparent that they are burdened by the parental conflict and for this [the father] and [the mother] have to take responsibility. [K] is aware of this and this appears to be part of the reason that she is planning to leave home as soon as she turns 18. The children also appear to be grieving for their father and this applies particularly to [S] who, given three wishes, wants only one and this is ‘to see him all the time’.”
The Family Consultant expressed concern that there is a risk that the children “will need to meet [the mother’s] emotional needs”. This assessment seemed to stem from two main considerations, being the mother’s involvement of the children in her grief at the breakdown of her relationship with Mr G and her reaction when K told her that she wanted to live with her father.
Ms M discussed with the mother the breakdown of her relationship with Mr G and reported as follows:
“[The mother] said that she met Mr [G] in 2001 and then worked in his business with him. Mr [G] is now filing for a divorce to remarry and she stated that she still loves him. She explained that they used to argue about the ‘court stuff’ and thus she blames [the father] for her impending divorce. She stated that the children ‘loved [Mr G] to death’. [The mother] described how difficult it was for her when Mr [G] left. She said that she was ‘crying heaps…a mess…we cried together’. She explained that she cried with the girls because her counsellor had advised her ‘not to hide it’. She believes that she was close to a ‘nervous breakdown’. She acknowledged that she would not like her girls to see her like that again.”

In her oral evidence the mother admitted that she did not “cope very well” and “fell apart” when Mr G left their home. She said that “for a couple of weeks I cried in front of the girls”.
To her credit, she sought advice from a counsellor during this period. Perhaps surprisingly, this person advised her not to try to protect the girls from her feelings and to let them attempt to help her. The mother consulted her general practitioner and took antidepressant medication for approximately two months after her separation from Mr G. For these reasons, I consider that she acted responsibly in seeking professional help to deal with her situation.
The mother said that she is now “back on [her] own two feet”. She told the Family Consultant that she “had always needed to [be] with a man” but she has now had to “stand on her own two feet”. She said that “it is just me and the girls now” and that she likes being “just a mum now”.
I am inclined to accept that the mother has acquired new reserves of self-sufficiency and independence since the breakdown of her relationship with Mr G. She has resumed employment in a responsible position, as a sales administrator. She has not repartnered and seems content with her life.
I have referred already to the passage in the report of Ms M which sets out what K said about her mother’s reaction when she spoke of her wish to live with her father. K did not tell Ms M that her mother had threatened to take her life if she and S moved to live with their father. Ms M reported that the father stated that the children had relayed to him that the mother said that she “would be dead in the morning” if they went to live with him. The mother denied making this threat of suicide to either the children or the father. Neither of the parties was cross-examined about this alleged threat, which makes it extremely difficult to make a finding as to whether or not it was made.
The mother gave evidence that K sends her 5 or 6 text messages on each occasion when she is with her father. A selection of these messages was annexed to her affidavit and included the following:
“28/9/07 Hi Mummy I don’t like […] I want to stay with you” “28/9/07 Hi Mummy sorry to wake you up this time at night I just can’t get to sleep because I can’t stop thinking of you. Sorry again. Good night”
“29/9/07 Hi Mummy sorry that I keep text messaging you every time I just miss you a lot and I just can’t stop thinking of you. All right I will stop text messaging you and I will see you on Saturday”.
In my view, these text messages indicate that K misses her mother when she is away from her. Similarly, it is clear that both children miss their father when they are away from him. It is apparent to me that they have a close and loving relationship with each of their parents.
In my view there is no reason for any concern as to the nature of the children’s relationship with the father’s partner Ms P or her daughter. The Family Consultant observed happy, comfortable interactions between them and a “loving” greeting to Ms P from K and S.
Section 60CC(2)(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 children have sustained a close, loving relationship with each of their parents throughout the 6 year period since the separation. In my view credit is due to each of the father and the mother in this regard.
The father has undertaken more travel than has the mother to enable the girls to spend time with him. On the other hand, the children have been in the primary care of their mother for the past several years and their relationship with their father has flourished. In fact, the mother attempted to have the children spend more time with him after he retired from the Public Service.
Section 60CC(3)(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 father recognised that a move to live with him in central western New South Wales would involve significant changes for the children. In his affidavit he said: “I am aware that the move to [central western New South Wales] will be a big change and challenge for both [K] and [S]. They will to attend a new school and will have to meet new friends.” The father drew comfort from the fact that Ms P’s daughter would be in the same class as K and that the girls would have cousins at the local school. I agree that these adjustments would be a substantial challenge for the children.
In my view, however, a much more significant change would be the girls’ introduction into a new family unit in which they have lived so far only on weekends and during holidays. It is clear that they both crave attention from their father and have a strong wish to spend more time with him. I have concerns as to how the reality of living full time in a family unit consisting of their father, Ms P, her daughter and the new baby will impact on the girls.
The father works as a driver from Monday to Thursday and does tradesman work on Fridays. Sometimes he also works on Sunday afternoons. Ms P will be at home full time following the birth of the baby in February 2009. She will thus have a very substantial involvement in the day to day lives of K and S, frequently in the absence of their father.
As noted already, I am satisfied that the children have a very good relationship with both Ms P and her daughter. I am satisfied that Ms P is an entirely appropriate person to be significantly involved in their lives. I do however have doubts as to how this blended family would function as a permanent arrangement, rather than the enjoyable environment which the children have so far experienced only for relatively short periods.
The girls would be competing for their father’s attention with Ms P, her daughter and the new baby, in circumstances where they already crave more time with and attention from him. It is a significant concern to me that they may feel excluded from his attention and affection, despite his best efforts. In this regard I am mindful of K’s comment, that she had enjoyed her time at the court for the preparation of the Family Report because “Daddy had to play with us”.
To this point the girls have experienced their father’s rural lifestyle only in the limited context of weekends and holidays. I have no doubt that they find country life novel and enjoyable for these relatively short periods. It remains a matter for speculation as to how they would adapt to the loss of the suburban city lifestyle which they have known all their lives.
It is true that many children cope with a change of schools and loss of friends. I appreciate also that the Family Consultant was of the view that the children would adjust to the proposed relocation. Ms M reported:
“It is assessed that given the closeness of their relationship with their father and the family support available to them in [central western New South Wales], the children would adjust without adverse consequences. The mother is not working and therefore may be able to travel to [central west New South Wales] for their special events. The children would need to have open telephone communication with her regularly. It is assessed that [the father] has the willingness and ability to encourage a close and continuing relationship between the children and their mother and he appreciates the importance of this for the children’s future development.”
As noted already, the mother has resumed her employment in a responsible position since her interview with Ms M. It is thus no longer a possibility that she could travel to central west New South Wales for the children’s special events between Monday and Friday.
Section 60CC(3)(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;
The distance between the parties’ homes makes it impossible for the children to spend optimal time with each of their parents. These problems, as noted already, are now exacerbated by the fact that the mother has resumed full time employment. Realistically, the children can only spend time with the non-primary residence parent on weekends and during school holidays.
The mother alleged that she suffers from a medical condition which causes her to suffer back pain during the drive to L. She adduced no expert evidence in support of this contention, but I will assume the truth of what she said. In her oral evidence, she made the concession that she would “arrange for someone else to drive the girls to [L]”, if there was an order that changeovers occur there. There is thus no reason why the father should continue to shoulder a greater responsibility for the necessary travel.
Section 60CC(3)(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;
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Although criticisms can be made of each of the parties in terms of these considerations, I consider that the children are fortunate in that they have two very devoted, loving and committed parents. It was clear to me that neither party was motivated by malice or a desire to achieve a victory over the other parent.
The father could be criticised for establishing a lifestyle for himself at some distance from the children. I accept that financial problems prompted his move to rural New South Wales a short time after the separation. On the other hand, he has since received approximately $267,000 in termination payments and he expects soon to receive an additional $170,000 by way of a superannuation benefit.
The father invested $100,000 in the family business and repaid a loan of $35,000 to his parents, as well as making a payment of $25,000 for IVF procedures. I offer no criticism of the way in which he used this money. I do observe, however, that the availability of these funds afforded him an opportunity to establish a home closer to the children.
For the same reasons, the father could be criticised for his failure to make consistent payments of child support. The evidence did not identify the payments which he has actually made since 2002. He admitted that he “did stop paying, maybe in 2004 or 2005” for an unspecified period.
The father has attended only very few of the children’s school or sporting events, despite their clear wish that he do so. They raised this complaint with the Family Consultant. For example, the father did not attend K’s State championship match recently. He informed her that he could not do so because of a work commitment. Further, he admitted that he has attended only one of the girls’ soccer matches. The mother said, and I accept, that K is very good at her sporting pursuits and that these activities are important to her.
The mother can be criticised for involving the children in the adult dispute, by her discussions with them as to whether they wished to live with her or their father. On the other hand, I accept that she would have put a stop to the proceedings if the girls had told her that they really wanted to move to live with their father. I am satisfied that her motive for these discussions was not to influence the children to express views which would favour her case. I accept that her intention was to spare the girls from any further involvement in the litigation process. The issue of whether they would have felt able to express an honest view to her is, of course, another matter.
I have referred already to the mother’s involvement of the children in her own grief at the breakdown of her marriage to Mr G. As noted, however, she sought advice from a counsellor and presumably from the general practitioner who prescribed antidepressant medication. As noted also, I accept that she has learned from this experience and acquired a new level of independence and self-sufficiency.
The Family Consultant expressed concern in her report that the mother had disrupted the security of the children’s accommodation. Ms M reported as follows:
“[The mother] at the time of the second interview for this report did not have stable accommodation and was staying with friends. She could not contemplate living anywhere other than [the Blue Mountains] and regarded the 8 kilometres from her parents’ home in […] as too far to travel. This temporary move for the children is assessed as disruptive for their routine and stability given the fact that it was done during the school term. Her reasons for the move at this time appear to lack sound judgment.”
The mother said, and I accept, that she simply sought Ms M’s advice about how the move to live with her friends in the Blue Mountains might affect the children. When Ms M advised against the proposal, she elected to remain at her parents’ home. I accept that her intention is to continue to live at her parents’ home until she finds rental accommodation in the area which she regards as entirely suitable for herself and the children.
Section 60CC(3)(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;
K is 12 years old and spoke recently to her mother about physical changes which she is experiencing. The mother’s evidence was that she explained the process of puberty to K and said that she would always be available to talk to her about these matters. The mother said that K told her that she was glad that she could talk to her because she felt uncomfortable talking about some issues with her father and Ms P.
In my view, it is likely that K did make this statement to the mother and that she genuinely finds it easier to discuss such personal matters with her mother. In making this observation I mean in no way to comment adversely on the quality of the relationship of K with her father and Ms P. It simply seems to me that K’s mother has a particularly significant role to play at this sensitive time in her life.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
As already noted, there were allegations that the children were exposed to domestic violence between the mother and Mr G. I accept her evidence that Mr G is “no longer a part of [her life]”. This matter was not raised as an issue in the case for the father.
Section 60CC(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.
It is my view, having regard to the whole of the evidence, that both the father and the mother have done their best to fulfil their responsibilities and facilitated the parental role of the other party. The tyranny of distance has interfered with their opportunities to cooperate with each other to a significant extent. As well, they have been involved in litigation over the children for over 5 years.

Conclusion

I have reached the conclusion that the children’s best interests will be met if they continue to live with their mother but spend as much time as is reasonably possible with their father. I appreciate that this result is inconsistent with the recommendations of the Family Consultant and, arguably, with the stated views of the children.
It seems to me to be necessary to look very carefully at the views which the children expressed to the Family Consultant. K spoke very positively of the time which she spends with her father in central west New South Wales and identified the activities which she enjoys. She said that one reason why she loves being in that area is that her paternal grandparents are there. She qualified her stated wish to live with her father by adding that she would like a trial period of one year “to see how she liked it”. She did not express an unequivocal wish to leave her mother’s home and move to central west New South Wales with her father.
As already noted, K told Ms M that she had enjoyed her time at court because “Daddy had to play with us”. She referred to her wish that her father attend her sporting events and added “but he says he has too much work”. It thus seems that K’s wish is for a much greater input into her daily life from her father.
S did not express a wish to live with her father. The first of her three “magic wishes” was “to have Daddy live near us so that I cold see him all the time”. This statement followed several comments about how much she misses her father. Even against that background, S did not say that she no longer wishes to live with her mother. Her use of the word “us” would suggest that she perceives her future in terms of living with her mother and K.
It thus seems to me that neither K nor S expressed a firm wish to live with their father, in preference to their mother. K couched her preference in terms of a trial period and S’s wish was predicated upon her remaining with her mother.
There would be a number of significant adjustments required of the girls, if they were to move to live with their father. In my view, the most problematic adjustment would be their inclusion in the new blended family. I have referred to my concern that K and S will have to compete for their father’s attention with Ms P, her daughter and the new baby. I have no doubt that the father, and Ms P, would do their best to limit tensions within the family unit. I remain concerned that they may not be successful, in the context of day to day life rather than weekends and holidays. There are already indications that the girls perceive that Ms P’s daughter receives favourable treatment within their father’s family unit.
Neither of the children expressed to the Family Consultant any dissatisfaction about living with their mother. They voiced their unhappiness at the conflict between their parents and the fact that they cannot spend significantly more time with their father.
The Family Consultant interviewed the mother before she returned to her employment. Ms M rightly assumed that the mother could travel to central west New South Wales to participate in the children’s activities, when she is now unable to do so. Further, Ms M assumed that the mother had moved the children’s home during a school term when, in fact, she followed her advice to refrain from doing so.
The mother took issue with several further matters in the Family Report. She said that she told Ms M that she suffered from post-natal depression with both pregnancies and that, on one occasion, she had locked herself out of the house to prevent her from hurting baby K. She explained in her affidavit that this event prompted her to seek professional help. She was then diagnosed with post-natal depression and prescribed appropriate medication. She said that she was aware that the father would soon arrive home when she locked herself out of the house. The Family Report stated that the mother had locked herself out of the house “on occasions”, rather than the single event which prompted her to seek medical treatment.

The mother was quoted in the Family Report as saying that the father’s diagnosis of post-traumatic stress disorder was “bullshit”. In her affidavit she explained that she told Ms M that both she and the father’s father had also been diagnosed with this condition. She agreed that she used the word “bullshit” and added that she “just [does not] believe in the diagnosis”.
The mother was reported to have said that she wanted to move back to the Blue Mountains so that she could walk to the homes of her friends. In her affidavit she said that she told Ms M that she wanted to move back to the Blue Mountains so that the children could walk to the homes of their friends. Ms M was asked about this aspect of her report in cross-examination and, on checking her notes, agreed that the mother had referred to the children’s friends as well as her own.
Ms M expressed concern that the mother had joined her friends at the local “pub” on the Friday night following her move back to the Blue Mountains. She was of the view that this activity was an inappropriate way for the children to spend their time and a “modelling for the children a behaviour pattern that could impact on their present safety and future health”.
As already noted, the mother did not move back to the Blue Mountains and has remained at the home of her parents. In her affidavit the mother said that she and the children frequently go to a hotel in the Blue Mountains on Friday night, where they often see school friends and their parents. They participate in meat raffles run by friends, have dinner and arrive home about 8:00pm. I could see nothing of concern in these arrangements. I note that the father agreed in cross-examination that the children attend the local hotel with him when his cricket team is playing “at home” matches.
For these reasons, in summary, I conclude that the children’s best interests will be served if they remain in the primary care of their mother. I consider that they should spend more weekend and school holiday time with their father than with their mother. The countervailing consideration, of course, is the travel between central west New South Wales and western Sydney.

I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: 1 December 2008

[2008] FamCA 1047

1 December 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction