Watson and Thomas

FAMILY COURT OF AUSTRALIA

WATSON & THOMAS

[2011] FamCA 859

FAMILY LAW – CHILDREN – Best interests
FAMILY LAW – CHILDREN – Equal time
FAMILY LAW – CHILDREN – Parental responsibility - Presumption of equal shared parental responsibility
FAMILY LAW – CHILDREN – With whom a child lives

Family Law Act 1975 (Cth)

APPLICANT:

Ms Watson

RESPONDENT:

Mr Thomas

INDEPENDENT CHILDREN’S LAWYER:

Simone Wunderlich

FILE NUMBER:

MLC

902

2007

DATE DELIVERED:

6 October 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

19-22 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr G Combes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Agricola Wunderlich

Orders

That the orders of this Court made 17 September 2007 in so far as they relate to the children W born … July 2000 and A born … July 2004 be discharged.
The mother shall have the sole parental responsibility for the children.
That the children shall live with the mother.
That the children shall spend time and communicate with the father as follows:
(a)Each alternate weekend from the end of school Friday to the start of school Monday;
(b)Each alternate week from the end of school Thursday to the start of school Friday;
(c)For the first half of the first, second and third term school holidays commencing at the end of school on the last day of the school term and ending at 5.00pm on the Saturday in the middle of the holidays (being 8 nights);
(d)For one half of the long summer vacation on a week-about rotation and the mother to have the first week in odd numbered years the father to have the first week in even numbered years;
(e)From the end of school to 6.30pm on each of the children’s birthdays and the father’s birthday, if a school day, and from 10.00am to 2.00pm if a non-school day (assuming that the children are not already with the father pursuant to these orders);
(f)The time spent provided for in paragraphs (a) and (b) hereof are suspended during the school holiday periods referred to in paragraphs (c) and (d), and alternate weekend time shall resume on the first weekend after the commencement of the school term and the alternate weekday time shall recommence in the week after the first week of the school term;
(g)From 5.00pm on the Saturday prior to Father's Day to 5.00pm on Father's Day, if during a period when the children would not otherwise be with the father pursuant to these orders; and
(h)At other times as may be agreed by the parties.
That the time spent in the preceding paragraph shall be suspended as follows:
(a)From 5.00pm on the Saturday prior to Mother’s Day to 5.00pm on Mother’s Day;
(b)From the end of school to 6.30pm on each of the children’s birthdays and the mother’s birthday, if a school day, and from 10.00am to 2.00pm if a non-school day.
That when changeover does not take place at the children’s school, then changeover shall take place at the mother’s home.
That the mother and the father shall be restrained from denigrating the other in the presence and/or hearing of the children.
That each parent shall inform the other parent as soon as practicable of:
(a)Any illness or injury suffered by the children or either of them, requiring the attendance for either of the children by a medical practitioner, or psychologist or counsellor;
(b)Any medications that have been prescribed by a medical practitioner for either of the children; and
(c)Any proposed change of the parent’s telephone number or place of residence.
That the father shall be permitted to attend the children’s school parent-teacher interviews (separately from the mother) and events and activities to which parents are permitted to attend.
That the father shall be permitted to receive directly from the school all school reports, school photograph order forms, newsletters and information that is provided to parents, at the father’s expense if any.
That the father and the mother shall be permitted to remove the children from the Commonwealth of Australia for the purpose of a holiday of no longer than 6 seeks subject to:
(a)Giving to the other 28 days’ written notice of their intention to do so;
(b)Providing the itinerary of their holiday inclusive of accommodation;
(c)Showing to the other the return air fare tickets;
(d)Providing contact telephone numbers to the other;
(e)Providing make-up time to the other prior to and/or after returning from the holiday; and
(f)The passports being returned to the mother’s solicitor within 7 days of return and providing a copy of the solicitor’s receipt to the other party.
That otherwise all existing applications shall be dismissed.
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 the appointment of the Independent Children's Lawyer is hereby discharged.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 902 of 2007

Ms Watson

Applicant

And

Mr Thomas

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Since final consent orders between Ms Watson (“the mother”) and Mr Thomas (“the father”) on 17 September 2007, eleven-year-old W and seven-year-old A have lived nine nights per fortnight with their mother and five nights with their father. Their parents have had joint parental responsibility for decision-making.
The mother started these proceedings in the latter part of 2009. She seeks sole parental responsibility for the children, and that the father’s time with them be reduced to three nights per fortnight. She says that the children want more time with her, that the father does not care for them as well as she can, and that he severely undermines her parenting. She says that it is impossible for the parents to make any decisions together as they have no communication whatsoever.
The mother’s case is supported by the Independent Children’s Lawyer (“ICL”), although the ICL proposes that the father’s time with the children each fortnight be reduced by only one day, to four nights in a fortnight.
Mr Thomas seeks sole responsibility for decision-making, and he wants the children to be with him “more than fifty percent” of the time. He is profoundly critical of every aspect of the mother’s care of the children and her capacity to be a good parent.

BACKGROUND

The father was born in 1961 in China. He is now aged 50. The mother was born in 1963 in China and is aged 48. The father moved to Australia in 1989. He married the mother in Shanghai in February 1996, and returned with her to Melbourne later that year. The child W was born in July 2000. The child A was born in July 2004.
In mid-2006, the mother left the former matrimonial home, and several days later returned to take the children with her. On 1 August 2006 she obtained an Intervention Order, and an order that the father leave the home, after which she and the children returned to live there. For a short period, she allowed the father to again live in the home, but in January 2007 she obtained another Intervention Order against him, and he was forced to leave.

MATERIAL RELIED UPON AND ORDERS SOUGHT

The mother relied upon:
·Her Amended Initiating Application filed 15 October 2010
·Her affidavit filed 9 March 2011
·Her case outline filed 24 August 2011.
The father relied upon:
·His Amended Response to the Initiating Application filed 25 October 2010
·His affidavit filed 20 October 2009.
The ICL relied upon the Family Report of Mr S dated 21 October 2010, and his Issues Assessment dated 24 November 2009.
Neither parent had legal representation. Each had a fully qualified Mandarin interpreter with them. The mother rarely used her interpreter. The father gave evidence fully through his interpreter. I was satisfied that each was comfortable in their choice of language and their capacity to understand the proceedings.
Each parent was given a copy of relevant provisions of the Family Law Act, and particularly directed to the best interests considerations in s 60CC(2) and (3) of the Act.
Mr Combes, counsel for the ICL, was extremely helpful. By agreement with the parties, he cross-examined each parent first, so that some of the controversial territory might be covered and they would better understand the gist of the questioning task.

RELEVANT LEGAL PRINCIPLES

Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). As noted, s 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that 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 the Court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. It does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. Otherwise, the presumption may be rebutted by evidence satisfying the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
If there is an order for equal shared parental responsibility, the Court is then obliged to consider whether the child spending equal time with each parent would be in the child’s best interests and whether it is reasonably practicable (see s 65DAA (1)(b)). If the Court does not make an order for equal time, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests, and reasonably practicable (see s 65DAA).

THE ISSUES

The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
Although both parents express the belief that the children need a relationship with the other parent, both are guilty of conduct that diminishes what they claim, and undermines the other parent’s relationship.
The Family Report writer refers to this concern in detail. The evidence fully supports his conclusion however that, of the two parents, the father has by far the worst attitude to the other parent. This consideration is very much at the heart of the case and I shall return to it in detail when I consider each parent’s willingness or capacity to facilitate the other parent’s relationship with the two children.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
I am left with no doubt that both the mother and the father have exposed these children to psychological harm by exposing them to their intense parental conflict and intensely negative views of each other.
The hardship for the children, and the risks to their emotional well-being, are graphically summarised by the children’s own presentation and observations to the Family Report writer.
Mr S describes W as “a hesitant and unsure child” who appeared to be “very careful” when answering questions, going “to great lengths to appear neutral and not aligned with either parent.” W told the report writer that his parents did not communicate with each other. When Mr S asked W if it worried him, Mr S reported that:
…[W] replied with a sombre look ‘No, because enemies don’t talk to each other’.
When Mr S asked W to elaborate on why he thought his parents were “enemies”, W became uneasy, began to fidget, and avoided eye contact. He told Mr S:
…my mum doesn’t one hundred percent hate my dad, but dad one hundred percent hates mum. This makes them enemies.
When asked for further elaboration, W resorted to what Mr S described as his “now familiar reply” of simply saying that he was not sure. He did state however that it “kind of worried him”, and he observed of both his parents that “sometimes they don’t listen”.
All the descriptions of the child A are of a bright, talkative child. Her astute observations as to the harmful effects of the parents’ conflict are poignant. She referred to the fighting and how hard it was for her. When the Family Report writer asked her to comment on what she thought her parents thought of each other, she said “rubbish”. When asked to elaborate:
…[A] gave a very good example. She stated ‘Let’s say this is dad’s house (pointing to one side of her armchair) and this is mum’s house (pointing to the other side of her armchair). At dad’s he says “rubbish” at mums she says “rubbish” (with [A] changing the tone of her voice from low to high to imitate her parents). [A] pointed to her head and stated ‘like a tennis ball brain I’m going from one to the other. Like one time here one time there’.
A went on to say of her parents: “I think they’re both great”, and “It’s hard to tell which one is right”. Asked whether she says anything to her parents when they make comments to her about the other, A replied, “I say (to her mother or father) You answer that question. That I don’t know the answer.” A summed up by stating that “Mummy and daddy are naughty when they say bad things about the other. I guess they just want us.”
In his report and in his evidence, the Family Report writer emphasised the adverse effects for the children’s psychological well-being and healthy emotional development, of being exposed to this conflict.
He described it as highly likely that W is “stressed and concerned about the dysfunctional parental dynamic”. He said A is “an insightful and intelligent child with excellent language and perceptual skills for her age.” He described her “simple but skilful portrayal” of having to fit in between her parents’ environments as a typically encountered scenario for children who find themselves caught in the midst of their parents’ argument and discord.
In his evidence, Mr S described negative feedback from one parent about another as “devastating” for children. He said that if it continued, there would be unacceptable and negative repercussions on the emotional state and future development of the children. In his view, the children already need counselling to assist them.
Again the evidence emphasised that the father’s disrespect towards the mother, his negativity, and his adverse comments to the children, are significantly more profound than her negativity in return.
The mother also asserts that she suffered family violence when living with the father. That has consistently been denied by the father. However, I accept the mother’s account as the more probable. I note that when she left the father , she immediately went to stay in a women’s refuge. She obtained an Intervention Order. And in evidence she produced a letter, dated 5 August 2006, written to her by the father, in which he admitted that he had hit her.
Fortunately, for some years now the parents have had nothing to do with each other and there is no suggestion that there has been an on-going issue of physical violence. However, the mother has alleged that as recently as February 2011, the children told her that the father was threatening to kill her.
The father denies any threats to kill the mother. Unfortunately, the tenor of much of his evidence, and what he said to the Family Report writer, and to Dr L, a psychologist who wrote an earlier report in 2007, are far more suggestive of the mother’s allegation being true than untrue. He speaks of the mother in such hostile and disparaging terms that it is quite probable that he has been loose with such an ugly threat at some time in the presence of the children.
The only other area that I need to touch upon when it comes to the protection of the children relates to the father’s failure to properly protect W from an allergy if he eats certain ingredients. I shall return to this when I consider the parties’ respective allegations against each other in relation to the food they give the children. For present purposes, I can say that the father’s evidence was unimpressive on this topic. Although protective of the children in other ways, it seems that he has not acted appropriately to protect W from an adverse reaction to these particular foods.
I now turn to the additional considerations in s 60CC(3) of the Act.
(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;
I have already touched on the children’s views in terms of how they see the family dynamic. As to their general wishes in terms of the outcome of the case, I turn to the Family Report as the only objective source of information.
W was asked to comment on how he found going between his parents. He said “Not bad…not really good, but not really bad”. He said the positives of being with his father were playing games, going out and watching TV. The negatives were having to pack his schoolbag and getting confused sometimes. He said “I call mum dad and dad mum”.
Asked by the Family Report writer what he would think if the Court ordered that he spend equal week-about time with each of his parents, W stated that “I think that’ll be a little too long with dad”. In a game of three wishes involving his parents W said he only had one:
I wish I could have a time machine so I could go back in time and enjoy the time I had before mum and dad split.

W also indicated that he would enjoy a little holiday time, particularly around Christmas, with his father.
A was asked to comment on what it was like at her father’s home. She replied “Sometimes yes it’s good, but most of times no”. She said that “Sometimes I don’t like his food”. She said she enjoyed watching the fireworks at her father’s home, and watching TV. According to Mr S she was however unable or unwilling to elaborate on any further positives or negatives about her father’s environment.
In relation to her mother’s environment, A stated that she liked “good food”, “playing games” and “going shopping”. She did not express any negative aspects of being in her mother’s environment. She said she would like “more time with my mum”. When the Family Report writer asked her why she replied “I don’t know.”
The children’s views need to be considered against the backdrop of parental influence. I shall return to that shortly.
Unfortunately, for reasons to which I shall also return, involving a “stand-off” between the parents in the course of the Family Report interviews, Mr S was not able to undertake formal and lengthy observation of the children with each parent. In his professional view, it was unlikely in any event to have yielded results that would have significantly altered his opinion as to the outcome, given all the other information available to him.
(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 mother is not free from guilt when it comes to the negative attitude towards the father that she has conveyed to the children. That is most evident in the open and innocent comments of A. The Family Report writer asked her to comment on how she found going between her parents. A replied:
Hard…they are fighting very strongly. I don’t see it, but my mum tells me it. She says…I can’t remember all her words I remember a little. She says I give you a better life.
When the Family Report writer asked A what she thought of spending more time with her father, she replied “My mum says I have miserable time at my dad’s”. When she was asked what “miserable” meant, A replied “lonely or something like that.” And as already noted, A had commented that “both” her parents were “naughty” when they said bad things about the other.
Certainly the mother does have a negative view of the father. That may not be unreasonably based. I am satisfied that she did experience some physical violence in the course of the relationship. I am satisfied too that given his nature, his attitude towards her as a virtually “worthless” person, and his view of his own superiority over her in most regards, it must be very difficult indeed for her to have a positive view of him.
Her negativity can only be compounded by the fact that she works hard to care for the children and to undertake paid work whenever she is able to do so. She works as a nurse, earning $35,000 per year, from which to support herself and the children. Although the father claims high qualifications in China as an engineer, and is very proud of his educational and professional background, for reasons that are not at all clear, he has not been in paid work for some years. The fact that the mother not only has no financial assistance for the children from the father, but that she also pays him child support of $103 per month pursuant to a child support assessment, is an understandable source of frustration to her. She has the lion’s share of responsibility for the children, works hard, earns a very modest wage, and has to pay money to the father who did not give cogent evidence as to why he has not been able to find employment. He did talk of the difficulties caused by litigation, but the mother has faced the same difficulties and yet maintained paid work.
Against that backdrop, the mother’s anger to the father was observed by the report writer to have increased between the Issues Assessment in 2009 and the Report in 2010.
When it comes to the mother having so evidently conveyed her negative attitude to the children, I am heartened by two parts of the evidence. The first is that the Family Report writer was absolutely clear in both his written report and in his evidence that, of the two parents, the mother is much less negative than the father. The second is that since the Family Report (which is now about a year old), the mother has undertaken a parenting after separation course. She spoke about her learnings from that course. She was able to concede that she had previously spoken against the father to the children. She said that since that course, she has made a genuine effort not to do so.
In the context of the on-going hostility between the parents, it is hard to be absolutely confident she no longer conveys any negativity to the children. However, I am satisfied that at least she has the understanding that it is inappropriate, and she is making genuine efforts in that regard.
Unfortunately, there is no basis for confidence that the father has the same insight or the same capacity for change. Although he has two healthy and overall happy children (except for the pain their parents’ conflict causes them), and in A’s case a quite bubbly, intelligent and outstandingly perceptive child, he spoke in the most disparaging terms about their mother.
He spoke of the children being “in a bad situation” around the time of separation. He said their mother was “beating” and “yelling at” them. He was very critical of the mother when on one occasion he found A had a temperature but her mother did not have a working thermometer. He conceded that in 2007, he had described the children’s mother to Dr L as “deceitful”. He said she seldom told the truth, and was “a liar”. He described her as “setting traps” for him. He described her as “awful”, a description he said still applies. He described her as “selfish”, saying that she cares more about herself than the children and others. He described her as “incompetent”. He said that was “just personally speaking”. He said she was “far less competent” than him, including in looking after the children. He described her as “unloving”. He described her as a “horrible monster”.
When the ICL cross-examined the father to the effect that if the mother were so bad, why would he agree to her spending time with the children unsupervised, he said that “compared to the social standard” she is actually “above average”. Confusingly though, he said that he believes she is neither caring nor competent as a mother because he has “a higher standard”. He thought that when he was speaking with Dr L. He thinks it now.
The father admitted in evidence that he had described the mother as “a bad woman” and “a bad mother”. He agreed that he told Mr S he taught the children three things. The first was that when they are with their mother they should obey her. The second was that if she put them in a small room or hit them, they should call the police or their father. The third was that if she did not look after them, they should look after each other. He showed no insight that he was conveying negative messages to the children by suggesting they were at risk in the mother’s care. He thought it was reasonable because, as he perceives it, they are at risk. There is no objective evidence to support that.
On a number of occasions the father gave evidence to the effect that he was “better” than the mother. He believed his general knowledge was far better than hers. He was “above average”. He described his parenting as “better” and on occasions he described himself as “the best”. He a number of times spoke in a disparaging way about her “standard”. Although he continued to say, when pressed, that she was “above the average”, he repeated that compared to his “social standard” – it seems in terms of profession, intelligence, and parenting competence – he was “better”.
It is always difficult for parties to cross-examine each other. That was unfortunately necessary for each of them in this case, given that they were both unrepresented. It did though allow particular insights into their behaviour, unfiltered by lawyers. The father’s evidence was often difficult to follow. His answers were long and rambling, and frequently not directly on point to the question. At one point, when the mother was asking him about sacrifices he had made for the children, he told her that her question was wasting the court’s time and confirming to the court that she was “a liar” and “looking down on the court’s intelligence”. He said something to the effect “are you insane” and seemed to be threatening her with criminal prosecution. It was inappropriate, and a glimpse as to why she cannot communicate with him.
The father said he was “better equipped mentally” to look after the children. When asked how, he said that I could see it, “comparing their current mental status”. He emphasised that he received a higher education, he was once a professional and the leader of many people, he had a certificate to work with children from the Australian Government, and when faced with serious problems he could “do self-adjustment”.
Although the father agreed that he had said the profoundly negative things about the mother that Dr L had reported, he was very unhappy with Dr L’s report. Dr L apparently criticised him for his hostility towards the mother (and possibly for other reasons – I did not see the report). The father then reported Dr L to his professional body. He was concerned in this case that Mr S was influenced by Dr L’s report, as he had read it before he wrote his report. I accept the evidence of Mr S that he was influenced by his own observations, which happened to accord with Dr L’s, rather than just by Dr L’s report.
The father described the mother to Mr S as a “terrible” parent. Mr S noted that the father found it difficult to express any positives about the mother. He noted:
Asked whether [the father] could find any positives in his ex partner as a parent, [the father] replied ‘Personally whether it’s good or bad, it’s a relative thing’. Asked to elaborate and clarify his response, [the father] replied ‘Yes, but I can do better’. He went on to give as an example, ‘She claim to the Court she can teach the children piano. But actually the truth is I am the one who can teach music not her’. Asked whether [the father] was a qualified music teacher, he replied ‘I tend to believe that Court will make the judgement’ (of who offers positives or negatives to the children). It was abundantly clear to this writer that [the father] found it difficult to find any positives about [the mother].
The father denied conveying his negative views of the mother to the children, even inadvertently. Given the level of his hostility to the mother, and the children’s awareness of each parent’s view of the other, it is not possible to accept that. I am not heartened by the father’s insistence to Mr S that no matter what the outcome of this case, he would keep the court documents so that when the children grow up he can tell them “the full story”. When Mr S challenged him about the appropriateness of such a course, the father replied “They must know the truth.” He repeated that in evidence before me.
(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);
(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;
I am satisfied that both parents can provide for the children’s day-to-day needs, although both placed far too much emphasis on relatively minor aspects of it.
Each parent made many criticisms of the other in terms of the food they gave the children. I am satisfied that the children eat well enough in both households. I am not overly concerned by whose cooking the children prefer. That is not a major component of their emotional well-being, and they are both physically healthy and thriving. Spending time in each household, they have been able to experience and cope with different cooking and foodstuffs. It is a discredit to both parents that they have been so absorbed in the minutiae of that detail when there are far more serious aspects of parenting that they need to attend to.
Similarly, it is a pity that the children have different clothing in each home and that they cannot simply travel between homes with their clothing and belongings travelling with them. That said, it is hard not to sympathise with the mother’s position when she says that at times in the past, when she sent the children in their good new clothing to the father’s home, it was not returned. She was very upset, given her financial constraints. The father denies that he kept any clothes on more than random occasions. I cannot really get to the bottom of the issue. It is simply a reality for these children that the distrust between their parents is so intense, that they are likely to have entirely separate existences in each household in every respect, including in relation to their possessions.
I am also not troubled about who will better facilitate piano lessons for A. Although the father professes great superiority in that regard, I note that the mother has in fact managed to purchase a piano for her and is arranging music lessons. If her father has some talent in that regard as well, then that is to the benefit of the child.
The father is concerned that W has not been performing well in some subjects at school. The mother seems to share a similar concern. Again, although the father professes some superiority educationally, I am satisfied that the mother has her own professional qualifications, but more importantly, like the father, she has aspirations for the children to perform well at school. The evidence cannot persuade me that one parent more than the other would facilitate the children’s educational needs. The mother conceded that the father was good at mathematics although expressed some concern as to how he could teach the children given that he does not speak much English and the children apparently do not communicate in Mandarin. Again, I cannot get to the bottom of all of that except to note that the children do not complain about language difficulties with their father, they are fortunate that both parents care about their education, and it is to their benefit that each parent will have time with them to contribute to it. And, if W is free from the stress of his parents’ battles, he may be able to better concentrate his energy into his studies.
I do have the concern that the father has not been able to put W’s interests first when it comes to his food allergy. W complained to the report writer that:
I’m allergic to [certain ingredients]. Dad says there’s no such thing as allergic. You’re just itching because you haven’t had a proper bath. It makes a lumpy thing on my lip and I scratch it. Mum doesn’t cook [certain ingredients] because she knows.
The father’s evidence was unsatisfactory on this topic. He spoke of a recent birthday celebration when he made a big banquet of dishes. He said that he only made W try the particular foods for “symbolic” reasons. He cited “traditional Chinese culture” to support that course. I made the observation to him that I do not accept that traditional Chinese culture differs from Australian or other cultures when it comes to parents trying to protect their children from harm. W’s own observation that his father does not believe that he has an allergy, is a much more likely explanation for the father insisting on W trying those foods, than that his conduct was dictated by culture. It is unsatisfactory for the child to be put in that position.
I am satisfied that both parents have shown some limitations in their capacity to put the children’s needs ahead of their own. That is self-evident from my findings of how they have involved the children in their conflict. It was also played out in front of Mr S on the day of the interviews.
There was basically a “stand-off” when the father was insistent that he should take the children home from the interview because his time had started under the orders. The mother was equally insistent that she should take the children home in order to change their clothes and pack a bag for the weekend. Neither position was wrong as such. The father’s time had technically started under the orders. The mother’s position, that she had not expected that they would be so late at the interview and had always intended to collect the children’s possessions at home, was also objectively reasonable. What happened though was that there was a total impasse. And Mr S could not conduct the observations he sought, as the discussions were diverted into this issue.
(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;
Mr S gave helpful evidence about this. He emphasised research findings that whether the children’s time with their father was a day longer or shorter was not as important as the damage to them from the hostility between their parents. He said he had suggested four nights a week as a compromise between the current period of five nights, and the three nights that the mother was saying she wanted. He nevertheless maintained the view that the children’s fortnightly time with their father should be slightly reduced.
He explained that the children were caught between two individuals with different ideas. The parents do not communicate at all. There is a complete lack of trust between them, and they have very different views from each other. The children need stability. They are not completely comfortable in the father’s environment. It would be beneficial for them to have a little more structure than presently. And Mr S was concerned that the father is not meeting “all their emotional and psychological needs”, given his limited insight into his own behaviour, how his behaviour affects the children, and his very limited insight into the children’s emotional and psychological needs.
(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;
This has not been an issue in this case. The parents are sufficiently proximate that the children have been able, and it is anticipated will continue to be able, to spend time in both households.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Although it is apparent that in the past there has been an issue between the parents in that the mother was concerned that the father was not taking the children to Chinese school, I heard little evidence about that. Overall, the evidence satisfies me that in both homes the children are kept in touch with their Chinese culture.
(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;
These children deserve the opportunity to grow up, sharing a relationship with both of their parents, free from the rigours of litigation. I am particularly conscious of that need. It is one of the pressing considerations in relation to how decisions are to be made for the children in a family where the parents are not able to have any communication whatsoever. It is impossible to imagine that shared care could work without leading to repeated litigation. The report writer made the observation that the father is “focussed on the legal process and sees the Court as the only way of resolving this issue.” I am concerned that if the parents are required to make decisions together, the Court would be the recourse for each disagreement.

The other s 60CC(3) considerations

The other considerations are either not relevant, or have been dealt with elsewhere in these Reasons.

CONCLUSION

In his report, and again in evidence, the report writer expressed his opinion that shared parental responsibility is not in the best interests of these children. He said:
Shared care of children requires parents that share the same values, respect and trust each other, communicate effectively and constructively and are on friendly terms with each other. None of these qualities are evident in this parental dynamic in any measure. It is therefore of some concern that [the father] either cannot, or will not acknowledge that the obvious lack of these qualities from the parental system (which he does not deny exist) will affect the ability of the parents to perform their parenting functions and the emotional stability of the children. Equal shared care in this matter will not work, is not in the best interests of the children and is not supported by this writer.
All the evidence supported the expert opinion. There is no basis to assume that the parents can make any decisions together for these children. There is absolutely no communication. There is absolutely no suggestion that it will suddenly become possible after this hearing.
Like all children, these children deserve a childhood where their evolving needs are promptly and efficiently met. Sadly, that would not be possible if their warring parents needed to make decisions for them together.
I am satisfied that the mother should have the sole parental responsibility for the children. That was the ICL’s submission. I agree with it. The expert evidence supports that of the two parents, she has the greater insight and capacity when it comes to meeting the children’s emotional and psychological needs. The father’s very negative view of her capacity is not borne out by the objective evidence.
For the same reasons articulated so well by the expert as to why shared decision-making could not work in the children’s best interests, a shared arrangement as proposed by the father, where the children live with him half the time or a little more than half the time, would also not be in their best interests.
I accept the expert evidence that the children need a firm base and stability. They have always spent the majority of their time with their mother. Given her capacity, just referred to, to better meet their psychological and emotional needs, that should continue.
I accept the ICL’s proposal for the children to spend four nights each fortnight with their father. The expert’s evidence persuaded me that overall it would best satisfy the children’s needs. However, school holiday time as proposed by the ICL should be added. There was no real disagreement about that.
Holiday time will ensure that the children can enjoy different activities with their father. It will answer a need specifically expressed by W. It will mean that, although the children will have one less night per fortnight with their father, the block holiday time will probably mean that they do not spend less time with him, just time in a better configuration
Finally, I note the ICL’s proposal that the parents attend a Parenting Orders Program. Ideally they would. However, previously court ordered counselling has failed. On balance, I fear a further court order may only attract further litigation. I am confident that the mother will heed Mr S’s advice to take the children for any necessary counselling support. Both parents need to understand that the children love and need both of them. However, each parent risks damaging the children’s relationship with them if they continue to criticise the other parent.

THE ORDERS

The orders I propose, subject to submissions as to form, in particular as to Christmas and birthdays, are as follows:
1.That the mother shall have the sole parental responsibility for the children W born … July 2000 and A born … July 2004.
2.That the children shall live with the mother.
3.That the children shall spend time and communicate with the father as follows:
(a)    Each alternate weekend from the end of school Friday to the start of school Monday;
(b)    Each alternate week from the end of school Thursday to the start of school Friday;
(c)    For the first half of the first, second and third term school holidays commencing at the end of school on the last day of the school term and ending at 5.00pm on the Saturday in the middle of the holidays (being 8 nights);
(d)    For one half of the long summer vacation on a week-about rotation;
(e)    From the end of school to 6.30pm on each of the children’s birthdays and the father’s birthday, if a school day, and from 10.00am to 2.00pm if a non-school day (assuming that the children are not already with the father pursuant to these orders);
(f)     The time spent provided for in paragraphs (a) and (b) hereof are suspended during the school holiday periods referred to in paragraphs (c) and (d), and alternate weekend time shall resume on the first weekend after the commencement of the school term and the alternate weekday time shall recommence in the week after the first week of the school term;
(g)    From 5.00pm on the Saturday prior to Father's Day to 5.00pm on Father's Day, if during a period when the children would not otherwise be with the father pursuant to these orders; and
(h)    At other times as may be agreed by the parties.
4.That the time spent in the preceding paragraph shall be suspended as follows:
(a)    From 5.00pm on the Saturday prior to Mother’s Day to 5.00pm on Mother’s Day;
(b)    From the end of school to 6.30pm on each of the children’s birthdays and the mother’s birthday, if a school day, and from 10.00am to 2.00pm if a non-school day.
5.That when changeover does not take place at the children’s school, then changeover shall take place at the mother’s home.
6.That the mother and the father shall be restrained from denigrating the other in the presence and/or hearing of the children.
7.That each parent shall inform the other parent as soon as practicable of:
(a)    Any illness or injury suffered by the children or either of them, requiring the attendance for either of the children by a medical practitioner, or psychologist or counsellor;
(b)    Any medications that have been prescribed by a medical practitioner for either of the children; and
8.Any proposed change of the parent’s telephone number or place of residence.
9.That the father shall be permitted to attend the children’s school parent-teacher interviews (separately from the mother) and events and activities to which parents are permitted to attend.
10.That the father shall be permitted to receive directly from the school all school reports, school photograph order forms, newsletters and information that is provided to parents, at the father’s expense if any.
11.That otherwise all existing applications shall be dismissed.
12.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.
13.That the appointment of the Independent Children's Lawyer is hereby discharged.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 6 October 2011.

Associate:

Date: 6 October 2011

[2011] FamCA 859

Key Legal Topics

Areas of Law

Family Law