Watton and Watton

[2018] FCCA 3331

FEDERAL CIRCUIT COURT OF AUSTRALIA

WATTON & WATTON [2018] FCCA 3331

Catchwords:
FAMILY LAW – Interim parenting application – nature of interim proceedings no issues of principle – father seeking to increase his time – mother seeking to change the day children spend time with the father – competing applications for school holiday – interim order for equal shared parental responsibility opposed by mother – interim orders made for increase in father’s time and orders for school holiday time as proposed by mother – interim order for equal shared parental responsibility not made.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 60CC(3), 61C(1), 61DA(1), 61DA(2), 61DA(4), 61DAC, 65D

Cases cited:

Carver & Hahn [2014] FamCA 470
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286

Applicant: MR WATTON

Respondent: MS WATTON

File Number: CAC 1674 of 2017

Judgment of: Judge Tonkin

Hearing date: 25 October 2018

Date of Last Submission: 25 October 2018

Delivered at: Canberra

Delivered on: 31 October 2018

REPRESENTATION

Solicitors for the Applicant: Farrar Gesini Dunn

Solicitors for the Respondent: Watts McCray

ORDERS

Until further Order:

1. [X] born … 2011 and [Y] born … 2014 (“the children”) shall live with the mother.

2. The children shall spend time with their father during school terms as follows unless otherwise agreed in writing:

   (a)in each alternate week and thereafter from the conclusion of school or day care at 3.15 pm on Thursday until 5.00 pm on Sunday;  and

   (b)every other Thursday from the conclusion of school or day care at 3.15 pm until 7.00pm.

3. Order 2 hereof is suspended during school holiday time and mid‑term time will recommence on Thursday, 31 January 2019, with the children spending time with their father from 3.00pm on Thursday 31 January 2019 until Sunday 3 February 2019 at 5.00pm, with drop‑off and collection at Suburb A.

4. During the Christmas summer school holiday period in 2018‑2019, the children will spend time with the parents, unless otherwise agreed in writing:

   (a)with their father for a period of four nights from the conclusion of school or day care at 3.15 pm on Friday, 21 December until 3.00pm on Christmas Day 2018, when the father shall deliver the children to the mother at McDonald’s in Suburb B, New South Wales; and

   (b)with their mother for a period of six nights from 3.00pm on Christmas Day 2018 until 3.00pm on 31 December 2018, when the mother shall deliver the children to the father at McDonald’s in Suburb B, New South Wales; and

   (c)with their father for a period of five nights from 3.00pm on 31 December 2018 until 9.00am on 5 January 2019 with the collection and drop‑off to be at McDonald’s in Suburb B, New South Wales; and

   (d)with their mother for a period of 10 nights from 9.00am on 5 January 2019 to 12 noon on 15 January 2019 (noting that the mother is travelling to Queensland for a pre‑booked holiday with the children and extended maternal family) with the collection and drop‑off to be at the front of Store in Suburb A; and

   (e)with their father for a period of five nights from 12 noon on 15 January 2019 until 5.00pm on Sunday 20 January 2019 when the father shall deliver the children at the Suburb A Shopping Centre. 

5. By consent it is ordered unless otherwise agreed in writing:

Children’s birthdays

(a)irrespective of any Order to the contrary herein and unless agreed to between the parties in writing to the contrary, on each of the children’s birthdays as follows:

(i)if the children’s birthday falls on a weekday, on each of the children’s birthdays, rom the conclusion of school or day-care at 3.15pm on that child’s birthday until 7.00pm.;

(ii)if the children’s birthdays fall on a weekend that is not the father’s weekend, then the children shall both spend time with the Father from 9.00am, until 2.00pm on the child’s birthday.;

(iii)if the children’s birthday fall on a weekend that is not the mother’s weekend, the children shall both spend time with the Mother from 9.00am to 2.00pm on the child’s birthday.

Changeover

(b)unless otherwise specified in an order to the contrary or otherwise agreed to between the parties in writing, changeover shall occur at the front of Store in Suburb A Shopping Centre, Canberra.

Parties’ birthdays

(c)irrespective of any Order to the contrary herein, and unless agreed to between the parties in writing to the contrary, if the Mother’s birthday or Father’s birthday falls on a day when the children would otherwise be living with or spending time with the other parent on that parent’s birthday, then the following Orders apply:

(i)if the Mother’s birthday or Father’s birthday falls on a weekday, each of the parties shall take all reasonable steps to ensure that the children spend time with the parent having the birthday from the conclusion of school or day-care at 3.15pm on the parent’s birthday until 7.00pm

(ii)if the Mother’s birthday or Father’s birthday falls on a weekend, each of the parties shall take all reasonable steps to ensure that the children spend time with the parent having the birthday from 9.00am until 6.00pm on the birthday.

Mother’s and Father’s Day

(d)irrespective of any Order to the contrary herein, and unless agreed to between the parties in writing to the contrary:

(i)in the event that the children are not spending time with the Mother in accordance with these orders on Mother’s day, then the Children shall spend time with the Mother from 9.00am until 6.00pm on Mother’s Day.

(ii)in the event that the children are not spending time with the Father in accordance with these orders on Father’s day, then the Children shall spend time with the Mother from 9.00am until 6.00pm on Father’s Day.

Additional orders

(e)both parties shall each encourage and promote the children’s relationship with the other parent.

(f)each parent shall notify the other parent, as soon as practicable, of any serious illness or injury affecting the children, and either parent is at liberty to contact any doctor or hospital treating the children to obtain information.

(g)each parent shall notify the other of the name of any general practitioner or paediatrician or other specialist who treats the children whilst they are in the parents care.

(h)otherwise all interim applications with respect to parenting are withdrawn and dismissed.

Further order

1. The parties are restrained from:

   (a)discussing these proceedings with or in front of or within hearing of either of the children;

   (b)threatening abusing, speaking negatively about the other or denigrating the other at any time and particularly in front of the children;

   (c)seeking to influence or coaching the children about whether they should live with their mother or father or allowing any other person to do so.

Notation:

It was unclear whether the parties consented to order 6 above. The Court determined that it was in the children’s best interest to make that order.

1. The matter remains listed for final hearing commencing 1 April 2019.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1674 of 2017

MR WATTON

Applicant

And

MS WATTON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a parenting matter involving two children: [X] born on … 2011 and [Y] born on … 2014. The parties separated on 28 June 2017. The father commenced proceedings on 11 September 2017. The mother filed her response on 4 December 2017. On 4 December 2017 both interim parenting and property orders were made by consent.

2. The parties attended a child‑inclusive conference on 15 May 2018. On 24 April 2018 the matter was listed for final hearing to commence on 1 April 2019, and a family report was ordered. Additional time was ordered by the Court for the father to spend time with the children from after school on each Thursday until 7.00pm. Notwithstanding that, the father sought an interim hearing to further increase his time, and the matter was listed on 15 June 2018. 

3. The matter came before me on 15 June 2018 and orders were made allowing the father to spend time on consecutive nights with the children during the September 2018 school holidays. The parties sought further interim hearing time, and the matter was again listed for 26 October 2018.

4. The matter came before me again on 26 October 2018. Notwithstanding that the final hearing was scheduled to occur within six months, both parties sought to vary the interim orders, with the father seeking to increase his time and the mother seeking to change the day the children spend with their father. Both parties advanced competing arrangements for the Christmas summer school holiday period. 

5. Of significance in this matter, the parties had by October 2018, each filed four extensive affidavits. Each had amended his or her application and response. On 26 October 2018, the father’s solicitor handed up to the Court handwritten amendments to the orders sought by the mother, (Exhibit A1) that had been hastily prepared. The mother’s solicitor complained that she had not had sufficient notice of the father’s proposal, and the matter was stood down to allow her the opportunity to obtain instructions. The Court then heard the parties’ submissions and, due to the volume of material relied on by each of the parties, reserved judgment.

6. In my view, a practice has developed in this jurisdiction with parties seeking multiple variations to interim parenting orders. It is not uncommon for practitioners to ignore the practice direction and file numerous affidavits, as in this case. The Court in this matter was required to consider lengthy affidavits containing allegations and counter‑allegations by the parties regarding matters that were unable to be tested and determined on an interim basis. Interim proceedings are conducted on the papers, and it is rare for the Court to be able to make findings of fact where there is significant disagreement between the parties. 

7. It is apparent that the practice of parties seeking variations to interim parenting orders and requiring interim hearing time is a cause of significant delay in the Court’s ability to allocate hearing time in final parenting matters in a timely manner. The ever‑increasing case load of this Court in duty lists usually involves many interim parenting applications of this type, where parties seek to vary arrangements of orders already in place which are perhaps not ideal but provide both parties with the opportunity to spend regular time with the children. I formed the view that the parties in this case would have benefited from mediating this particular dispute given the narrow range of issues between them, particularly given the constraints on the Court’s ability to make findings of fact without the ability to test the evidence.

8. I refer to the authorities in relation to interim proceedings. In Carver & Hahn [2014] FamCA 470, Cronin J, although dealing with an interim application by the mother to return to her native Country C with the child, which the father had opposed, regarding determination of facts in interim hearing, he said as follows. Paragraph 14:

   “It is trite to say that in such a limited hearing, I am not able to make any significant findings of fact on controversial or untested evidence.”

9. He went on to say at paragraph 20:

   “In Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286, the Full Court observed that the procedure for making interim parenting orders is an abridged process where the scope of inquiry is significantly curtailed. The Court observed that where findings of facts could not be made, the Court could not be drawn into issues relating to the merits of the substantive case which required findings to be made and where those findings were not possible. Despite the truncated hearing and the paucity of evidence, the Court still had to make a determination based on the best interests of the child. Thus, in Goode, the Full Court indicated that the Court should identify the competing proposals; identify the issues in dispute; identify any agreed or uncontested relevant facts; and consider the matters in section 60CC that are relevant and, if possible, make findings.”

10. In Deiter & Deiter (2011) FamCAFC 82, the Full Court endorsed the approach that the scope of inquiry in interim proceedings is significantly curtailed. However, the Court noted that in some cases, it may be necessary to consider child protection issues. I accept that this Court is required to carefully weigh evidence of family violence where those matters are raised, be that in interim or final proceedings.

Competing applications

1. I will not repeat the parties’ competing applications. They are set out in Exhibit A1 and Exhibit R1. I move now to the body of my judgment.

2. Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with orders relating to children. Section 65D of the Act gives the Court power to make such parenting orders as it thinks proper. Section 60CA provides:

   “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

3. The matters the Court is required to consider, insofar as they are relevant, are set out in section 60CC of the Act. Those matters include primary considerations and additional considerations:

   “The primary considerations are ... 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.”

4. The parties consented to an interim order that the children live with the mother. The parties agreed there was a benefit to the children spending time with their father and had consented to orders permitting the father to spend time. The issues for determination for this Court on an interim basis are as follows: how much time should the children spend with the father; when should they spend that time; what arrangements should be made for the school holidays; and whether an order for equal shared parental responsibility should be made.

5. The objects of the Act under section 60B include, amongst other things, ensuring that children have the benefit of both their parents having meaningful involvement in their lives, to the maximum extent consistent with their best interests, and the need to protect children from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I have considered the objects and principles of the Act in reaching my decision.

6. With respect to family violence, the mother raised significant issues of family violence perpetrated by the father. These are set out in her affidavit filed on 4 December 2017, at paragraphs 23 through to 50. The father addressed those allegations in his affidavit filed on 1 March 2018. The mother alleged that on 7 September 2015, whilst driving the mother and children home from Town D at a rate of about 110 to 100 kilometres per hour, the father and mother were discussing the father starting a business with his father that may require the parties to relocate to Sydney. The mother said she did not agree to the relocation to Sydney. She did not wish to live with the father’s parents. In addition, she had applied for a position with her employer in Canberra. She deposed that the father, while driving, became angry and shouted at her. He punched the windscreen with force, smashing the glass while driving. She said she was terrified and began to cry and said to him, “How could you do that?” She annexed to her affidavit a photo of the smashed windscreen. She said she was distressed for months after the incident.

7. In his March 2018 affidavit, the father agreed he punched the windscreen. He said that they had just celebrated [X]’s birthday and spent the weekend at the maternal grandmother’s home in Town D. He said on the journey home, the mother told him she no longer supported the father starting a business. He said she had previously supported that idea. He punched the windscreen out of frustration. He formed the view that the maternal grandmother had interfered with the parties’ plans. He agreed his conduct was unacceptable.

8. I find that the father behaved in a violent manner in the presence of the mother and the children in punching the windscreen with force while driving at speed, risking the safety of all those within the vehicle. I accept the mother and children were likely terrified by the incident. The father’s solicitor, in my view, minimised the significance of the incident during submissions. I accept that this conduct occurred some years ago. However, the event was significant.

9. The mother alleged that during the marriage the father would hurl objects across the room at the mother and in front of the mother and the children, and he would explode with rage. She said in February 2016 he tossed a foam esky across the room towards [X]. The child ran out of the room. He then began to push the mother and [Y] out of the room as they were exiting, walking backwards. He then threw the foam esky, causing it to break into a number of pieces. He punched a hole in the plastic box close to his feet. She said she feared for her safety and that of the children.

10. The father said the parties had been arguing on this occasion, and he attempted to remove himself from the lounge room and told the mother, “Leave me alone. I need some space and time to comprehend this.” He said she refused to leave him alone and followed him to the spare room, continuing to yell at him for about 30 minutes. He said he gently moved her to the door and denied grabbing or pushing her. He closed the door to shut her out. He denied punching a plastic box. He said she continued to yell, and it was difficult in the small apartment to isolate the children from that. He agreed the children were exposed to arguments and he regretted that.

11. I am unable to make any finding regarding this incident, save that both parties exposed the children to an argument. The mother raised a number of other complaints against the father he told her she would not get the job she applied for in Canberra; she didn’t have the requisite skills. The father denied saying that and said he supported the mother about her work skills. The mother said the father was critical of her, saying, “You’re only wearing that to get other men to look at you.” He denied that. She said when breastfeeding [X], he told her, “Is that all you ever do? Sit on your bum all day and breastfeed her?” He denied he said that. He said she was actually a good mother.

12. The mother said he would berate her, calling her “scum of the earth”, “fucking bitch”, “whore”. He denied that. The mother alleged on occasion, the father was in an uncontrollable rage and would hurl clothes at her and paced around the room in an intimidating and aggressive manner. He would put his face into her personal space. He punched the back of the bedhead close to her head while she was nursing [X] in her arms. He denied that and he denied he punched the bedhead. He denied having injured his hand doing so.

13. The mother said the father would keep her awake at night with his verbal taunts. She said on one occasion on 16 September 2017, she called the paternal grandfather, asking for help. She said “Mr Watton has been awake all night, swearing at me and telling me that he’s going to leave me. Please do something to help me. Please tell him to stop.” The paternal grandfather replied, “You deserve what is happening to you. Let him leave you.” 

14. The mother complained that the father isolated her from her family and did not allow her family to see [X]’s baptism, that he threatened to confiscate her phone, he refused to allow her to visit her uncle who was involved in an accident, telling her he did not want her to go and if she did go, she could not take the girls. The father denied he isolated the mother from her family, denied threatening to confiscate her phone and generally denied the allegations. The mother complained the father was financially controlling of her. The father denied that. 

1. With respect to the abovementioned matters in significant dispute, on an interim basis, I am unable to make any findings. I note that these matters will be determined at the final hearing.

2. The mother said that there was a dispute between his parents and the maternal grandmother. She alleged the paternal grandfather spat on her mother six times and raised his voice at her. She said the father and his parents stormed out of the home for several hours. Upon the father’s return, he collected the groceries her parents had purchased and placed them in the spare room, saying “You will never see your parents again. This is the beginning of the end of our relationship.” The father said he did not recall any incident in those terms but agreed that his parent and the mother’s parents did not get along. Again, I am unable to make any finding in this regard.

3. The mother alleged on 25 June 2017, she told the father she thought it best they separate. She said “We are constantly fighting. I can’t handle the volatility. It’s not good for the children.” She said she left with the children immediately upon telling him this. She said on 28 June 2017, the father woke in a very volatile mood. He began yelling and swearing at her about repayment of their joint ANZ Visa card, saying “You fucking bitch.  Why haven’t you paid the credit card?” She said she could not afford to pay it because her income was going towards the mortgages. 

4. She said the father continued to yell while she was trying to dress [X]. She turned around and noticed that the father had removed all his clothes and was standing in front of the child, completely naked. She was shocked and confused. She said for religious and cultural reasons, the parents had agreed the children would not see him naked. She immediately left the bedroom and finished dressing the children. She said he continued to yell at her but had put his pants back on. He then said to [X] “Do you like what your mother is doing to us?” She told him, “Leave us alone. She understands what is happening.” 

5. She said he then went into the rooms in the apartment and tossed her and the children’s belongings into one pile in the lounge room and picked up the iron and threw it onto the floor, smashing it. He then shouted at her to leave straightaway. She left with the children but without any belongings. She returned to the home after work and collected some belongings. Annexed to her affidavit was a photo of the iron smashed on the floor.

6. The father agreed there was an incident between the parties at separation. He said on 25 June 2017 the mother told him “I want to separate. I have been looking for new accommodation for the past two weeks.” On 28 June 2017 in the kitchen the mother told him “I have already had discussions with [X] about separation. I have told her that leaving our house and you is the right thing to do.” He said after this, he went to the rear bedroom of the apartment to continue ironing his clothes as he was getting ready for work. He said “I had a moment of distress, and I broke the iron by smashing it on the ironing board.” He said when this occurred, he was by himself, and neither the mother nor the children were present.

7. I find that on 28 June 2017 there was a violent incident between the parties and the father smashed the iron on the floor. I find that the mother was aware this occurred. It is unclear whether the children were aware, save that I find that the children were exposed to a violent argument between their parents on this occasion. I find that the father’s solicitor minimised this particular incident.

8. Notwithstanding the findings I have made about family violence the father has, since 4 December 2017, been spending time with the children by consent, unsupervised, each alternate weekend from 9.00am each Saturday until 6.00pm on Sunday and on the Thursday immediately following the weekend, with the children spending time with him from 3.00pm to 7.00pm on the Thursday.

9. From 24 April 2018 the father’s time was extended to include each Thursday from after school or day care until 7.00pm. In addition the father spent time with the children during the September 2018 school holidays from 3.15pm on 28 September to 7.00pm on 2 October and from 9.00am on 9 October to 7.00pm on 10 October.

10. The father has participated in the following courses: the Anger Management and Skills Development course for fathers at Marymead; the Talk With Your Kids course at Marymead. The father has enrolled in the ARCK program and the Parenting After Separation courses. 

11. Both parties raised issues of mental health, the father raising a concern that the mother suffered from postnatal depression with [Y] and the mother denying this to be the case. The mother raised a concern about the father’s unpredictable behaviour and indicated he had “bipolar disorder or some form of mental illness”. The father denied there was any basis for this. He told the family consultant that he recently struggled with his mental health and had a meltdown for 24 hours in January 2018.  He said this was triggered by the parties’ litigation. Since then, he has accessed counselling for depression.

12. The family consultant noted the concerns raised about the father’s ability to manage his anger and recent struggles with his mental health. She indicated in her view, that the current interim arrangements were appropriate for meeting the children’s needs. She noted that the children may have been harmed emotionally through witnessing family violence. No doubt this was the case in being exposed to the incident when the windscreen was broken and ongoing conflict including the dispute between the parties on 28 June 2017.

13. In addition to the primary considerations, the Court is required to consider additional considerations under section 60CC(3) of the Act, insofar as they are relevant, when determining what order is in the children’s best interests. The children were interviewed briefly by the family consultant. [X] rated spending time with her father as 10 out of 10 and said “I really like him, and I miss my dad.” She spoke of a number of positives in spending time with him, including playing with doll houses and her father taking her to fireworks. She said she felt sad when her father did not take her out. 

14. She rated spending time with her mother as 9 out of 10 and said, “Sometimes I miss my dad when I’m with my mum.” She said her mother lets her cook with her, and she sleeps next to her each night. There was nothing she felt sad, worried or scared about when with her mother. She would tell the Judge “Live in Canberra because it’s nice, and I get to see my family. Live with Dad and sometimes see Mummy.” The Family Consultant indicated in her view the child did not understand what it meant when she said she used to live with her mother. [Y] was not interviewed.

15. Notwithstanding the difference in their ages it was not suggested by the parents that the children would be separated when spending time with either of them. I place some weight on [X]’s wish to spend more time with her father and the fact that she told the family consultant she missed him. The mother’s solicitor said that the child equally expressed similar comments to her mother about being away from her. I accept that but note that the child primarily lives with her mother and will remain living with her mother in the interim period.

16. The children lived with both parents until separation in June 2017. Both parties worked during the relationship. The mother primarily had the care of the children. She says she was the children’s primary carer, and any interim orders should reflect the mother continuing as their primary carer. 

17. The parties dispute the level of the father’s involvement with the children during the time they were together. He said he was an involved parent, and the parties shared the care of the children during the relationship. He said the mother would drop off the children in the morning and collect them from school in the afternoon or from day care, and he would assist if she was not available. The mother worked remotely from home, and when she was working, he said he cared for the children’s needs by bathing them and getting them ready for bed. He said he mostly prepared the evening meal in 2017. He assisted with the children’s after‑school activities including attending sports lessons and taking [X] to sports practice.

18. The Court is unable to determine precisely the arrangements before separation. However, I accept that both parties have a close and loving relationship with the children. I accept they were both involved in the children’s care, the father to a lesser extent than the mother. Both parties agree they attended the Church with the children on Sundays.

19. Since separation, the children have been in their mother’s primary care. The father describes her as a good mother and consented to an interim order that the children live with the mother. The father currently has a very positive relationship with the children and [X] has expressed a very positive view of him. They also have a close relationship with their mother. It is hoped that by the time the matter is heard in April 2019, [X] is able to sleep independently from her mother.

20. Both parties agree that the children were exposed to conflict during the relationship. This appears to have abated somewhat. They have managed to reach a business‑like arrangement for the benefit of the children, though communication remains poor. I have made findings regarding family violence insofar as the evidence allows on an interim basis. I am satisfied that the orders I have made on an interim basis address the findings of family violence made by me. The father has in the past been unable to control his anger and regulate his emotions in the presence of the children. He has undertaken an anger management course as a means of ameliorating this type of conduct.

21. The father complains that the mother has limited the time he spends with the children post‑separation. He said the mother prevented him from seeing the children for a period of two months during the relationship, prior to the parties’ final separation. He complained that she delayed attending mediation and has sought to restrict his time. 

22. The mother remains concerned regarding the father’s volatile, unpredictable behaviour, as experienced by her during the relationship, and contends on this basis that his time should be limited. She seeks to preserve her role as primary carer for the children which she said has existed throughout their lives.

23. Both parties are seeking a change in the current arrangements. The family consultant determined that the current arrangements were appropriate for the children’s needs. The father contends that the mother has failed to communicate with him regarding concerns in relation to the children. I am unable to make any finding in this regard. There was no suggestion by either solicitor that the competing proposals sought by each party were not reasonably practicable. No question was raised regarding the mother’s capacity to care for the children.

24. The mother raised significant concerns regarding the father’s ability to regulate his emotions. The father is currently undertaking counselling for depression and has sought assistance through participating in courses through Marymead. These are interim proceedings, and it is likely litigation will continue until finalised. The mother seeks to relocate the children’s residence to Town D.

25. In conclusion, I have found there were two significant incidents of family violence perpetrated by the father. Both parties agree the children were exposed to conflict. The mother argues this was primarily as a result of the father’s inability to curtail his anger, his volatile outbursts and destructive behaviour. The father has sought some assistance in this regard. There are no concerns raised regarding the mother’s capacity to care for the children. The mother remains concerned about the father’s unpredictable behaviour. 

26. I intend to take a cautious approach in this matter. There are untested allegations of family violence. The children have been exposed to significant conflict between the parents in the past. The children are in a routine where they spend Thursdays with their father. It is in their best interests that their routine be maintained. Both parties have indicated that the father should spend a period of consecutive overnights during school term. 

27. In my view, it is in the children’s best interests that they spend from Thursday after school until Sunday at 5.00pm each alternate weekend in their father’s care. In addition the children will spend Thursdays with their father in the other week, returning to their mother at 7.00pm. I reject that it is in their interests to change the day to Tuesday. The children appear well settled in the Thursday arrangement. There is likely to be further change for the children as a result of the final hearing. In my view, the Thursday arrangement should continue until further order.

28. The mother is at liberty to invite the father to take the children to swimming lessons on Tuesdays if she is unable to do that. I anticipate that the father would enthusiastically embrace the opportunity of spending more time with the children should the mother agree to that. However, no order is made in that respect.

29. I propose to adopt the mother’s proposal for school holiday time. The father sought the children spend significant periods of extended time with him around special days and times that were significant to the children. As indicated, I intend to take a cautious approach to this matter. The father first spent time with the children during school holidays in September 2018. I have determined it is in the children’s best interests to gradually increase the father’s time during school holidays. There may be further changes to the children’s arrangements as a consequence of final orders being made following the April 2019 hearing. My orders will provide the children with a predictable routine in the meantime and stability pending any further changes.

30. The father is seeking an interim order for equal shared parental responsibility. That order is opposed by the mother. Pursuant to section 61C(1) of the Act, each of the parents of a child who is not 18 has parental responsibility for the child. Pursuant to section 61DA(1) of the Act the Court is required to consider whether it is in the best interests for parents to have equal shared parental responsibility for a child. Under subsection 61DA(2) of the Act, the presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child or family violence. Under subsection 61DA(4) of the Act the presumption may be rebutted by evidence that satisfied the Court that it would not be in the best interests of a child for the child’s parents to have equal shared parental responsibility.

31. Section 65DAC of the Act provides that an order for equal shared parental responsibility requires the parties to consult with one another about major long‑term issues and to make a genuine effort to come to a joint decision about any relevant issue. “Major long‑term issues” is defined in section 4 of the Act and includes issues relating to a child’s education, health, name and changes to a child’s living arrangements that may make it significantly more difficult for a child to spend time with a parent.

32. Although the parties have been able to cooperate, in some regard, in a business‑like manner, communication remains poor. They communicate via text but do not speak directly to each other. There are a number of allegations of family violence raised by the mother against the father, for which the Court has been unable to make findings. The mother raises significant concerns about the father’s ability to control his anger and engage in angry outbursts and unpredictable behaviour. 

33. The children should be protected from being exposed to any conflict between their parents. The history of the parties’ relationship indicates a high level of conflict. The family consultant indicated that the children may have been emotionally harmed as a result of parental conflict. It may be, having heard all the evidence, I ultimately determine that an order for equal shared parental responsibility is appropriate, long term. However, I am not satisfied that it is in the children’s best interests to make an interim order for equal shared parental responsibility, and I decline to make that order, and I make the following orders.

ORDERS DELIVERED

1. A number of orders were made by consent including: children’s birthdays, changeover, parties’ birthdays, Mother and Father’s Day and some additional orders.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Tonkin

Date: 19 November 2018