Wetherill and Finchley

FEDERAL CIRCUIT COURT OF AUSTRALIA

WETHERILL & FINCHLEY

[2013] FCCA 1197

Catchwords:
FAMILY LAW – Final arrangements for care of children aged nine and four – allegations of sexual abuse – assessment of risk – allegations of coercive and controlling behaviour – cultural issues – mother (country omitted) by birth – father of Australian/(country omitted) background – application of presumption of equal shared parental responsibility – best interests – meaningful relationship – protective concerns – emotional needs of children –insight into the responsibilities of parenthood – equal time – substantial and significant time – reasonable practicality – parties lives thirty kilometres apart – overseas travel – best interests.

Legislation:
Family Law Act 1975, ss.4AB, 10G, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 65DAE

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
N & S and the Separate Representative (1996) FLC 92-655
M & M (1988) FLC 91-979
W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
MRR v GR (2010) 240 CLR 461
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Gin & Hing [2010] FamCA 617
H v W (1995) FLC 92-598
Bright v Bright (1995) FLC 92-570

Applicant:

MS WETHERILL

Respondent:

MR FINCHLEY

File Number:

ADC 4578 of 2010

Judgment of:

Judge Brown

Hearing dates:

14 March, 7 & 8 May 2013 and 25 July 2013

Date of Last Submission:

25 July 2013

Delivered at:

Adelaide

Delivered on:

5 September 2013

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Initially in person then Ms Milen

Solicitors for the Respondent:

Initially in person then Jo-Anne N Milen & Associates

Counsel for the Independent Children's Lawyer:

Ms DuBarry

Solicitors for the Independent Children's Lawyer:

Georgina Parker Lawyers

ORDERS

The parties have equal shared parental responsibility for the children of the marriage X born (omitted) 2003 and Y born (omitted) 2009 (hereinafter referred to as “the children”).
In the exercise of this equal shared parental responsibility for the children the parties are to consult with each other in respect of all major long term decisions pertaining to the children, which include but are not limited to issues concerning the following:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health and special needs;
(d)The children’s names; and
(e)Any changes to the children’s living arrangements which significantly interferes with the operation of these orders, particularly with the specified arrangements for the children to spend time with each parent.
In the event the parties are unable to come to a joint decision about any major long term issue pertaining to the children they are to jointly consult with a family dispute resolution practitioner as defined by section 10G of the Family Law Act1975 and seek the assistance of such family dispute resolution practitioner to come to a joint decision about the major long term issue pertaining to the children in dispute between them.
The mother and father shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and
(c)Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
The parents authorise by this order, the school, attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at the expense of the parent requesting same).
Each parent is at liberty to attend at the children’s school, pre-school or kindergarten for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
The children live with the mother from 14 October 2013.
The mother be authorised by this order to enrol the children at a primary school or pre-school (as appropriate) within the (omitted) area from the commencement of term four in the 2013 academic year.
The children spend time with the father as follows:
(a)During school terms on alternate weekends from 6:00pm to 6:00pm the following Sunday (or 6:00pm Monday in the even that Monday is a public holiday);
(b)For one half of each of the end of term one, term two and term three school holidays in each year, the halves to be agreed between the parties and failing agreement to be the first half in each even ending year and the second half in each odd ending year;
(c)For alternate periods of one week, subject to the provisions of order 10 hereof, during the end of year school holiday in each year unless the parties agree that the other should take time with the children for an extended period of up to four weeks in order to take an extended holiday with the children, including an overseas holiday;
(d)At any other times and conditions, including on the children’s birthdays, as the parties agree from time to time.
Unless the parties agree otherwise the children spend the period of Christmas with the parties as follows:
(a)With the father from 10:00am on Christmas Eve until 4:00pm on Christmas Day in 2013 and each odd ending year thereafter;
(b)With the mother from 4:00pm on Christmas Day until 5:00pm on Boxing Day in 2013 and each odd ending year thereafter;
(c)With the mother from 10:00am on Christmas Eve until 4:00pm on Christmas Day in 2014 and each even ending year thereafter;
(d)With the father from 4:00pm on Christmas Day until 5:00pm on Boxing Day in 2014 and each even year thereafter;
Unless the parties agree otherwise the children spend the period of Easter with each of the parties as follows:
(a)With the father from 6:00pm Maundy Thursday until 6:00pm Easter Monday in 2014 and each even ending year thereafter;
(b)With the mother from 6:00pm Maundy Thursday until 6:00pm Easter Monday in 2015 and each even odd year thereafter.
Prior to the commencement of order 7 the children live with father and spend time with the mother on alternate weekends during school terms and for the second half of the end of the term three 2013 school holidays.
In the event that Father’s Day falls on a weekend the children would not otherwise be in the care of the father pursuant to these orders the father is to spend time with the children on the weekend of Father’s Day in lieu of the preceding weekend.
In the event that Mother’s Day falls on a weekend the children would not otherwise be in the care of the mother pursuant to these orders the father is to spend time with the children on the weekend preceding the Mother’s Day weekend in lieu of the weekend of Mother’s Day.
The children have liberal telephone communication with each of their parents.
Each party is restrained and an injunction issues restraining each of them from taking the children to consult with a psychologist, psychiatrist or counsellor without the written consent of the other.
The mother be permitted to travel with the children outside of the Commonwealth of Australia on one occasion every two years for the purposes of visiting (country omitted) in order to take a holiday with the children which is not to exceed four (4) weeks in duration and is to be subject to the following conditions:
(a)The mother will provide a written itinerary of her proposed travel outside of Australia including flight times of arrival and departure; flight numbers; and addresses of accommodation which the children will be staying; with the itinerary to be provided to the father forty-two (42) days prior to the date scheduled for the children’s departure from Australia.
(b)If possible the mother is to ensure the holiday takes place during a school holiday period and as such to have precedence over the father’s time with the children as specified in order 9(b) or (c) provided the father has seven (7) days make-up time in a subsequent school holiday period.
The Registrar of the court at Adelaide is authorised to release the children’s passports to the mother to give effect to order 17 and the mother is directed to return the children’s passports to the Registrar of the court at the conclusion of such travel, who is to retain the passports pending further overseas travel by the children.
All previous orders be discharged, including the orders placing the children’s names on the Airport Watch list kept by Officers of the Australian Federal Police at each point of entry and departure to Australia.
The appointment of the independent children’s lawyer be discharged.
All extant applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 4578 of 2010

MS WETHERILL

Applicant

And

MR FINCHLEY

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are Ms Wetherill “the mother” or “Ms Wetherill”[1] and Mr Finchley “the father”. They are the parents of X born (omitted) 2003 and Y born (omitted) 2009.
[1] I mean Ms Wetherill no disrespect by referring to her as Ms Wetherill. With good natured resignation, she indicated that invariably non-(country omitted) speakers found it very hard to pronounce her name. For this reason, she refers to herself as Ms Wetherill and invites others to do so. I will refer to her as “the mother” or “Ms Wetherill” throughout these reasons for judgment.
The proceedings are concerned with final parenting arrangements for the two children. The mother is employed as a (omitted) at the (omitted) and has been since 2005. She lives close to the (omitted) in (omitted).
The father is a (omitted) of the (omitted). He is not currently attached to a (omitted) and is unlikely to be so for the foreseeable future. Currently, he lives with his parents in (omitted).
At present, Mr Finchley does some casual (omitted), filling in for other (omitted), when they are on holiday. However, for all practical purposes he is unemployed and likely to remain so. He receives a Newstart allowance from Centrelink, as his main source of financial support.
The parties, as their names would suggest, have very different cultural backgrounds. The mother was born in (country omitted), on (omitted) 1972 but grew up in (omitted), where her family continues to live.
She holds both (omitted) degrees in (omitted), but has also studied English and (omitted), as second languages, at a tertiary level. Her degrees were conferred by a leading (omitted) University. Her spoken and written English are excellent.
The father was born on (omitted) 1957, in (omitted), where his parents were (omitted). He attended boarding school, in Adelaide, from the age of thirteen onwards. He was the victim of sexual abuse, whilst he was at school. He agrees that this serious abuse has had significant emotional consequences for him as an adult.
After completing his secondary education, Mr Finchley obtained an (qualification omitted). Thereafter, he worked in areas relating to (omitted), in both South Australia and Queensland.
At some time in 1995, Mr Finchley was struck by lightning. He was hospitalised. It appears to be the case that he suffered some mild level of cognitive disability following the incident. It is Ms Wetherill’s view that Mr Finchley continues to suffer psychological consequences because of this traumatic event. It is difficult to know how she would be aware of any changes in him or is qualified to proffer an opinion.
Between 1998 and 2005, he attended the (omitted) in (omitted), where he obtained separate (omitted) degrees in both (omitted) and (omitted). In 2006, he was assigned to the (omitted) of (omitted) in (omitted).
Ms Wetherill’s parents are (religion omitted). However, her grandmother, who is (country omitted) by background, is a (religion omitted). In addition, several of Ms Wetherill’s relatives in (country omitted) are associated with the (omitted) Church there. Accordingly, the mother has had significant exposure to Christianity, whilst growing up and currently identifies herself as a practising (omitted) religion. She regularly attends the (omitted) religion congregation, near to where she lives in (omitted), with the children.
The parties met in (omitted) 2001, in Adelaide, when Ms Wetherill was visiting some of her relatives, who were undertaking (omitted) studies at the (omitted). Ms Wetherill’s uncle was apparently a (religion omitted) in (country omitted).
In 2002, the father travelled to (country omitted) as an Australian volunteer, under the aegis of the (omitted) Church in (country omitted). He worked as a (omitted) for (omitted). During his time in (country omitted), the relationship between the parties became more serious. As a consequence, they married, in (country omitted), on (omitted) 2002.
The parties travelled together to Adelaide in (omitted) 2003. Ms Wetherill has lived in Australia continuously since that time and became an Australian citizen on Australia Day 2011.
Initially, the parties lived in (omitted) close to the (omitted) but moved to (omitted) in 2006, where the (omitted) provided a house for them. From 2006 onwards, the father experienced some stress in his workplace at (omitted). He was placed on worker’s compensation payments for a period of time, due to a stress related condition.
In 2005, whilst the parties were living in (omitted), Ms Wetherill undertook studies, on a part time basis, in (omitted) at (omitted). As a result of a work placement, she obtained a position in the (omitted) department of the (omitted). She has worked at the (omitted) ever since, either in a part-time or full-time capacity, apart from a period of maternity leave.
The parties separated, under the one roof, from 30 August 2009 onwards. This was a difficult time for each of them, but particularly the father, who sought psychological support. On 19 January 2010, Ms Wetherill moved out of the (omitted)-owned home, at (omitted) and moved in with a friend in (omitted). The parties have lived separately and apart since this date.
In early February 2010, the parties and the children went to (country omitted) on a pre-arranged holiday. Thereafter, it is the mother’s position that Mr Finchley refused to let X and Y live with her. Rather, Mr Finchley elected to live, with the children, at his parents’ home in (omitted).
(omitted) is in the (omitted) outer suburbs of the Adelaide metropolitan area. As Ms Wetherill lives and works in (omitted) and does not have a motor vehicle, this arrangement was difficult for her. She is also critical of Mr Finchley for arranging X’s enrolment at the (omitted) Primary School in (omitted) without reference to her. In fact, Ms Wetherill alleges that Mr Finchley forged her signature on the necessary enrolment form.
The mother’s position is that the father is a domineering and controlling person, although he presents, to the world at large, as being passive and unassuming. She asserts that the father is intent on either controlling or undermining her close and loving relationship with X and Y to satisfy his own emotional needs.
In addition, she asserts that the father has an unhealthy fixation with the sexual abuse of children, stemming in part from his own experience as a child, and believes, erroneously and irrationally, that she has sexually abused X in particular in the past.
On the other hand, Mr Finchley presents himself as a caring and concerned parent. He continues to believe that Ms Wetherill, and her own mother, have behaved in an inappropriately and explicit sexual manner towards X, whilst he was an infant. As such, he believes that the children are at risk of coming to significant emotional harm, the longer they are in their mother’s sole care. He also has concerns about the conduct of (country omitted) people generally.
It is also his case that he is a competent and loving parent, who has provided the majority of the children’s care, since the parties separated, now over three years ago. In these circumstances, it is his case that, as Y and X are well settled in his care, it would be contrary to their best interests to change such a longstanding arrangement, at this stage.
Against this difficult background, the mother seeks final orders which would see X and Y living predominantly with her and spending time with the father on alternate weekends, during school terms; half of each school holiday period; and for defined periods of time on school holidays. She proposes that the parties should be conferred with equal shared parental responsibility for X and Y.
It is her case that this is the only feasible way in which the children may have an appropriate level of relationship with each of their parents. She fears that, if the children continue to live predominantly with their father, he will either actively or passively attempt to undermine their currently strong and sound relationship with her, which will cause them untold harm as they grow to maturity.
In addition, Ms Wetherill wishes the court to make orders which would authorise her to take the children with her on future holidays to (country omitted). Her father recently died and her mother is aging. Ms Wetherill has other siblings in (country omitted) and it is where she grew up. She wishes the children to meet these relatives and have some understanding of and exposure to the (country omitted) aspect of their family and background.
She fears that, either consciously or unconsciously, the father will undermine the children’s sense of connection to and association with the (country omitted) aspect of their background, which may cause them not to have a proper sense of their identity as children of a mixed (country omitted)/Australian/(country omitted) heritage, as they grow to maturity.
Ms Wetherill does not wish the children to suffer some form of identity crisis in this regard – not being proud and positive of who they are. Ms Wetherill’s fears are based on what she believes are the essentially negative views Mr Finchley has expressed about her and other (country omitted) people in his affidavit material filed in court.
For his part, Mr Finchley is strongly opposed to X and Y travelling to (country omitted), which he regards as an unsafe and, at times, immoral country, where pornography is rife. He also fears that the mother may disregard any promise, made by her to the court, to return the children to Australia.
In addition, Mr Finchley is opposed to there being any significant changes in care arrangements for X and Y, particularly any suggestion that the children should transition into the substantial care of their mother. He proposes that the children should live with him for all of the school week and see their mother for three weekends out of four.
From both parties’ perspectives, the school which the children should attend in future is crucial. Mr Finchley wishes the children to be enrolled at a school near him and, if he remains living in the (omitted) area, this should be (omitted) Primary School. Ms Wetherill wishes the children to attend the (omitted) Primary School.

Background

These proceedings have taken a significant period of time to reach this point. This delay has arisen for a number of reasons. Firstly, as a consequence of their respective personalities, both have wished to avoid a court adjudication of their various disputes, regarding the parenting of Y and X.
The mother is a conciliatory person by nature, who eschews conflict. It is her position that she has not wished to challenge the father in court, in the hope that things would work themselves organically, in respect of the parenting of the children and naturally X and Y would come into her predominant care, as she was the children’s primary carer prior to the parties’ separation.
As such, she did not seek to challenge what she would categorise as the father’s unilateral decision to assume the predominant parenting of X, following the parties’ separation in 2010. In addition, she asserts that she did not want to disturb X’s enrolment at (omitted) Primary School, although she was not consulted about his enrolment. In these circumstances, in early 2011, she agreed to the father’s proposal that X remain in his predominant care and there be a shared care arrangement for Y, who was then too young for school.
In addition, it seems to me to be the case that the parties have been unwilling to grasp the nettle of the father’s concerns about the mother’s alleged sexualised behaviour towards the children. From the father’s perspective, there seems to be a marked degree of reticence to raise these serious complaints in the public forum of the courtroom.
However, it would also seem to me to be the case that, as a result of his temperament; his own personal experience, whilst at boarding school, of sexual abuse; and his training in the (omitted); these concerns could only continue to trouble and pre-occupy him. As such, at some stage, it seems to have been inevitable that they would have to be examined by an independent agency, such as the court, sooner or later, notwithstanding the father’s embarrassment and reluctance to do so.
Secondly, there has been a marked lack of clarity as to what orders Mr Finchley is actually seeking. Although concerned about alleged sexual abuse of the children, Mr Finchley has not sought to prevent the children spending regular periods of time with their mother. Rather, he has wished to ensure that both children live predominantly with him. More recently he has said that such an outcome, in his opinion, will provide the children with the greatest degree of protection from being sexually abused by their mother.
Mr Finchley has acted for himself in these proceedings (as indeed has the mother). In this capacity, Mr Finchley has prepared prolix affidavits, to which are attached numerous annexures. These affidavits are not easy to follow and the purpose of the annexures not always readily ascertainable. In addition, in my assessment, Mr Finchley is at times evasive and not willing to disclose what his actual intentions are.
In particular, until very recently, Mr Finchley’s case contained a relocation aspect to it. Mr Finchley asserted that he was to be offered a (omitted), on the (omitted), over 250 kilometres away from (omitted). In these circumstances, he wished the court’s imprimatur to move the children’s predominant place of residence to (omitted) and to make orders reducing the time the children spent with their mother to once per month during school terms.
This proposal, coupled with the fact that Y will start primary school in 2014, galvanised Ms Wetherill into pushing the proceedings further. She did not agree to the children moving to the (omitted) and wished them to attend the same school, near to her home in (omitted).
It is her case that both children’s best interests will be served, if they live in the same household and have essentially the same arrangements for their care. It is her position that she is better placed to be the children’s predominant residence provider, as historically she has been their primary carer.
As previously indicated, up until this stage, in reflection of Y’s tender years, the parties had agreed on a “shared care” regime for Y, with him spending four nights per week, in his mother’s care, from Friday to Tuesday afternoon. So far as X has been concerned, he has spent the school week with his father and the weekends with his mother, to minimise disruption to his schooling.
Obviously, if the children live in (omitted), this arrangement would be rendered impossible. Ms Wetherill’s point of view, the commencement of primary school, by Y, represents an appropriate time to revisit what she would categorise as an ad hoc parenting arrangement, for the children, which was imposed upon her, by the father, certainly so far as X was concerned.
As a result of evidence led at trial, it is now clear that Mr Finchley’s relationship with the (omitted) is a tenuous one. He has not been struck from the roll of (omitted), as a result of any misconduct on his part. Thus, he remains (omitted). However, he is on indefinite leave, without pay, from the (omitted), after resigning from the (omitted), in 2009.
In theory, Mr Finchley could put his name up for reassignment to a (omitted). However, he has not done so. In addition, any such reassignment would be dependant upon a (omitted) accepting him as its (omitted). No (omitted), on the (omitted) has voted to have him and his name has not in fact been put up formally.
My own impression of Mr Finchley is of a vulnerable person, who is uncertain about his capacity to return to the (omitted). It also seems to be the case that the (omitted) itself has considerable reservations about such a return, given the circumstances surrounding his resignation from (omitted).
From the mother’s perspective, she fears that the father’s apparent desire to move the children, from the metropolitan area of Adelaide, was a ploy to reduce the warmth and intimacy of her relationship with the children because of Mr Finchley’s fixation with the dangers of sexual abuse, which he associates with her. It is also her case that this apparently spurious application is emblematic of Mr Finchley’s desire to control her relationship with the children and have the upper hand, over her, in regards to them.
The father commenced proceedings, in this court, on 3 December 2010, seeking orders that the children live with him and spend three weekends out of four with their mother. At the time, Y was aged not yet two. Mr Finchley also wished the children’s names to be placed on the airport watch list. At the time of his application, he was in possession of the children’s passports, following the family’s return from (country omitted), in February of 2010.
In his affidavit, in support of his application, the father asserted that he had been concerned that the mother had been “kissing” X’s genitals. When challenged about this conduct, the mother had apparently indicated to him that she could see nothing wrong with this behaviour and he had assumed, in his expression “perhaps wishfully” that such behaviour might have had its “genesis” in cultural differences between him and the mother.
In addition, Mr Finchley provided evidence regarding his perception that X had begun to display sexualised behaviour, inappropriate for his age and, by necessary implication, this was evidence that he had been subject to inappropriate sexual attention, emanating from an older person. At the time of the application, X was aged around seven years of age. In addition, Mr Finchley deposed as to his fear that Ms Wetherill might forge his signature, in order to try and remove the children from Australia.
At the time of this application, Mr Finchley was living in (omitted) and Ms Wetherill had recently obtained accommodation for herself in (omitted). As previously indicated, it is her position that Mr Finchley foisted the arrangement, for X to attend at (omitted) Primary School, upon her, without consultation.
In addition, Ms Wetherill deposed that the father had been very controlling of her during the marriage, had restricted her access to the parties’ joint funds and dictated to her arrangements for the children. She said that it was only with employment, in 2005, that she was able to have some financial independence. Essentially, it is her case that the father is a domineering and controlling person.
As to her personal circumstances, at the time of her response to the father’s application (10 February 2011), Ms Wetherill deposed as follows:
“Since separation, I have made every effort to start a new life for myself and the children. I took nothing but my personal belongings and some clothes for the children when I moved out of the marital home, so I have had to start from scratch. I have been able to rent a three-bedroom unit in (omitted) so there is plenty of room for myself and for the children when they are in my care. My friends and (omitted) of my (omitted) helped me to obtain furnishings. It is wonderful to be independent. I am now the treasurer of our local (omitted). On Australia Day this year I became an Australian citizen like my boys, and I am very happy and proud to call Australia my home.”[2]
[2] See mother’s affidavit filed 10 February 2011
At this stage, Ms Wetherill also voiced concerns that the father and the children’s living conditions, in (omitted), were likely to be crowded. The father concedes that he shares a room with X and Y. Ms Wetherill was also concerned that Mr Finchley had taken steps to live as far away as possible from (omitted), where she had worked for many years, following the end of the parties’ marriage.
However, notwithstanding her criticisms of Mr Finchley, she deposed that the current shared care arrangement worked “reasonably well for the children”. Pursuant to this arrangement, X lived with her from Friday afternoon until Sunday each week and Y from Friday afternoon until 11:00am Sunday of each week. School holidays were divided equally and she telephoned the children regularly, during the week.
At the time, Ms Wetherill was concerned that the arrangement did not allow X to spend enough time with her and that she was responsible for all handovers. As she did not have a motor vehicle, this was done by public transport, which involved a three hour round trip for her. In her view, at the time, as Mr Finchley had a car, she considered it would be better if he did the travelling.
In terms of the allegation that she had sexually abused X, she deposed as follows:
“I agree that on one occasion, when I was changing X’s nappy, I blew raspberries on his tummy and a raspberry in the genital area. In (country omitted), this is a normal display of affection between mother and baby, as little children are not seen as sexual beings. The father confronted me about this and explained that in Australia, this behaviour is seen as wrong. I was embarrassed and shocked. I would never harm my children. After that I stopped blowing raspberries on X.”[3]
[3] Ibid at paragraph 24(a)
Ms Wetherill deposed that she had never seen X exhibiting any sexualised behaviour, whilst he has been in her care. It was her view that X was doing well at school and was an active and happy child. She deposed that she enjoyed activities, such as swimming and gymnastics, with the children during her weekends with them and that both children attended her local (omitted), in (omitted), with her.
On 2 February 2011, the parties were able to agree on some interim arrangements for the care of the two children. The orders agreed upon essentially enshrined the then current arrangements except that the father was to deliver the children to the mother’s home in (omitted) and she was to return the children at the (omitted) railway station. The children’s names were placed consensually on the airport watch list.
Throughout this initial court process, at least ostensibly, the parties were anxious to reach a mediated solution to the various parenting differences arising between them. At the time, these issues centred on the distance between (omitted) and (omitted); the mother’s lack of access to private transport; the fact that the mother was in full-time paid employment, during the week; and, if the father was to work at all, it would be as a (omitted), on weekends.
As a consequence of their desire to avoid an adjudicated decision, in respect of parenting arrangements for X and Y, between February and May of 2011, the parties attended three child dispute conferences, under the auspices of the court and pursuant to the provisions of section 11F of the Family Law Act.
Pursuant to section 11E, the court may obtain advice from the family consultant convening such a conference. Accordingly, what is said, at such conferences, is not subject to privilege.
In an advice to court, dated 30 May 2011, Family Consultant Dr B described Mr Finchley as being “subtly but clearly focussed on his own desired outcomes, although not always clear on what those outcomes are.” Ms Wetherill was described as presenting as “not being heard by Mr Finchley and, even if she was able to get her view across, as perceiving that it did not matter to Mr Finchley.”
At this stage, given Y’s tender years, Dr B considered that it was important for Y to spend regular periods of time with each of his parents. She also noted that the mother was likely to have work commitments during the week and the father, if he worked, would work on weekends.
At this early stage, the mother voiced her concerns that Mr Finchley may move the children’s place of residence, with him, without consulting her.
Notwithstanding this difficult and challenging background, replete with many unresolved issues, the parties were able to agree on final orders for X and Y’s parenting on 15 June 2011. Essentially, they agreed to continue the then current arrangements, with school holidays to be shared on a week about basis and orders made for each of them to see the children on special occasions, such as Christmas, Easter and birthdays.
During the periods of time Y was with her, on weekdays, Ms Wetherill made arrangements for him to attend at a child care centre in (omitted), near to where she worked and lived. As X continued to spend the school week with his father, he continued at (omitted) Primary School in (omitted).
However, significantly, the orders were prefaced with the following notation:
“These orders are intended to be final orders only until such time that the child Y is due to commence year reception at school.”
In this context, the parties agreed to attend community mediation to resolve any issue arising from Y attending school, to ensure both children attended school together; any changes in parental employment or place of residence, which impacted upon the current arrangement continuing; and any proposed overseas travel for the children.
Accordingly, the orders of 15 June 2011 constituted only an uneasy cease fire between the parties. All the significant issues of contention remained essentially unresolved. These included the mother’s desire to travel to (country omitted) with X and Y; the mother’s desire for the children to attend the same primary school, when the four/three night per week regime for Y came to an end; and particularly the father’s inchoate plans to return to the (omitted), which might necessitate a change of residence on his part.

The current applications

The mother commenced the current round of proceedings on 31 May 2012. She seeks orders that would enable her to enrol X and Y at a primary school in the (omitted) area. In this eventuality, she proposed that the children live predominantly with her and spend time with their father, on alternate weekends during school terms, and for half of each school holiday period. She also wished orders to be made which would enable her to travel to (country omitted), with the children, for a four week holiday at an unspecified time.
In his response, Mr Finchley proposed that the children live predominantly with him, during the school week, and spend time, with their mother, during weekends and as previously agreed in school holidays and on special occasions.
In his self prepared affidavit, in support of his application, the father expanded upon his allegations of sexual abuse of the children by the mother. These concerns can be summarised as follows:
·The mother tickled, kissed, nuzzled with her nose, or gently bit the children in the area of their sexual organs, whether they were clothed or unclothed;
·An incident had occurred on the evening of 2 February 2008, in the parties’ former family home at (omitted), when X was being bathed by his mother and (country omitted) grandmother.
·Mr Finchley asserted that the child was traumatised and objected to being undressed by his mother and maternal grandmother;
·The most recent incident of this behaviour had occurred in late December 2009;
·X had been involved with groping individuals of both sexes and both adults and children, in their private parts and had expressed a want to kiss or suck the penis’ of other males.
When the parties attended at court, following the mother’s application, each was unrepresented. Notwithstanding their obvious differences of opinion, each expressed a desire to see if they could reach a mutually agreed outcome in respect of parenting arrangements for the children. A significant focus of Ms Wetherill’s case was her desire to travel to (country omitted) with the children.
On this basis, I referred the parties to a further child dispute resolution conference, which was scheduled for 26 September 2012, with Family Consultant Ms B. She reported as follows:
“The father’s presentation while pleasant was consistent with that of a person with a sense of entitlement while the mother appeared passive and conciliatory. The mother reported that parenting decisions post separation had been largely dictated by the father. For example, unilaterally enrolling X into a school at (omitted) influencing where he primarily resided.
The father disputed the mother’s claim. He argued that the paternal grandparents had a stronger entitlement to X than the mother due to caring for him while the mother attended TAFE. The mother clarified she attended TAFE for two hours a week only for no more than a number of months. She considered herself to be the children’s primary carer prior to parental separation and expressed concern that the transition for X at the time was difficult.
The mother was seeking to take the subject children to (country omitted) to spend time with her family. The father was strongly apposed to this and argued that the children were at risk of sexual abuse by the maternal grandmother in (country omitted). He claimed he had been compelled to take X to two psychologists for sexualised behaviours who would support his concerns in Court. He alleged that the abuse occurred when he, the children’s mother and the paternal grandparents visited (country omitted) in January 2010. He also alleged that some (country omitted) people prescribed to cult like sexual practices.
The father was proposing that the children primarily reside with him and spend weekends with the mother.
The mother was proposing that the children to primarily reside with her and attend a primary and high school close to her. Alternately, she proposed that the father reside closer and they consider a week about arrangement. The father reported he could not afford to reside closer to the city.
The mother would consider that X primarily reside with the father and Y with her and the boys share weekends at each parent’s home.
In the interim the parents agreed to Christmas school holiday time spending. That is, with the mother from 14 December 2012 to 1 January 2013 and then 13 January to 20 January 2013 and the weekend of 26 and 27 January 2013. All other time with the father with Christmas Day Shared.”

In summary, Ms B considered that the dynamic of the parties' relationship, as observed by her in conference, was consistent with controlling and coercive behaviours on Mr Finchley’s part. She also considered that the current regime was likely to be unsustainable, in the longer term, given the logistical issues arising from the mother’s dependence on public transport and the frequency of handovers. Ms B recommended that a more comprehensive family report be prepared.

The first family report

Against this background, I ordered that a family report be prepared. The report was assigned to Ms U, a psychologist, for completion. Ms U’s report was released on 8 October 2012.
In interview with her, Mr Finchley indicated to Ms U his concerns about the mother and the paternal grandmother’s sexualised involvement with the children which, from his perspective, had resulted in X becoming “sexually pre-occupied at home”. To Ms U, Mr Finchley proffered his view that this “sexual abuse had not been intended as abusive but [arose] out of maternal affection and cultural traditions.”[4]
[4] See family report dated 8 October 2012 at paragraph 14
However, in this context, Mr Finchley remained gravely concerned at the prospect of the children going to (country omitted), even for a holiday, as he considered that there was the possibility of the children being sexually abused, by the mother’s extended family, as such aberrant behaviour was considered “normal” within their family or culture. Mr Finchley also expressed concern that the children could “disappear” in (country omitted).
In respect of the allegations of sexual abuse, raised against her, Ms Wetherill told Ms U that these incidents were “nothing more than mother and child affection” but in deference for the father’s feelings and in reaction to what she had been told about the Australian law, Ms Wetherill indicated that she had ceased the behaviour complained about.
Ms Wetherill indicated to Ms U that Mr Finchley had never been violent towards her, but she described him as being “controlling and wanting everything his way.”[5] Ms Wetherill expressed a desire for Mr Finchley to be more flexible, in his parenting of the children, particularly in respect of issues to do with their schooling and overseas travel.
[5] Ibid at paragraph 20
To Ms U, Ms Wetherill indicated her opinion that the children should be able to travel to (country omitted) because “they have a right to see their extended family and to learn about the cultural differences.”[6] At this stage, Ms Wetherill also expressed her concerns about the children being separated, from one another, for significant periods during the school week.
[6] Ibid at paragraph 21
Ms U observed both children to interact comfortably and lovingly with each of their parents. Ms U had no criticisms of how either parent managed the children’s behaviour. It would seem to be the case that X and Y are much loved children, by each of their parents.
In her evaluation of the family, Ms U described it as being a complex one, with a vast difference in cultural/moral beliefs between its constituent members. This is undoubtedly the case.
However, significantly, Ms U did not consider that the different regimes, pertaining to the care of the children, which had resulted in X and Y spending two nights apart from each other, had had any negative effect on their bonding to one another or to either of their respective parents, although Ms U considered that Y appeared to be somewhat closer to his mother than X.
At this stage, Ms U was not in favour of X changing schools, as she thought this might be quite unsettling for him and disruptive of his socialisation and education requirements. She also considered that both children had a strong bonding with their father.
Given the strength of the children’s relationship with each of their parents and the fact that the parties had been able to manage a shared regime up until that time, Ms U appears to have been confident that the parties could work together to ensure that the children had a stable upbringing and spent significant periods of time with each of their parents. In this context, Ms U wrote as follows:
“Because both parties have said they were willing to share the time the children live with them, they could both consider the option of living in an area that would enable the boys to attend a school which would be near to both of them,
Ms Wetherill’s lease on her unit expires in March 2013, giving her the opportunity to find accommodation elsewhere. Mr Finchley lives with his parents, he could consider finding his own accommodation and move closer to the city. If both parties moved to within reasonable travelling distance the children could attend a school they agree on and both parties could have access to without too much travelling.[7]
[7] See family report dated 8 October 2012
Ms U was not in favour of the children travelling to (country omitted), until they were “much older”. She reached this view because of what she had been told about Mr Finchley’s concerns regarding Ms Wetherill’s extended family in (country omitted).
In her recommendations, Ms U leaned more in favour of the children living predominantly with their father, particularly after 2014, in the event that the parties lived a significant distance apart from one another.
A final hearing was scheduled for 23 November 2012. Given what the parties had told me about the issues in dispute between them, the main focus of this hearing was to be on the issue of overseas travel. At this stage, there was no suggestion that Mr Finchley might want to move further away from Ms Wetherill.
To the contrary, both parties remained courteous and respectful of the other, in court and each of them, ostensibly at least, wished to resolve the issues between them consensually. The vexed issue of overseas travel being the exception, given its controversy for the parties.
Unfortunately, the hearing scheduled for 23 November 2012 could not proceed due to other matters also listed on that day needing to be dealt with. It was rescheduled for 21 January 2013.
In the lead up to the November hearing, Mr Finchley filed a lengthy affidavit, which he had prepared himself. I accept that Mr Finchley put a great deal of effort and time into the preparation of this affidavit. However, it is a somewhat prolix document, which is not easy to read. Attached to the affidavit are many annexures.
In the affidavit, Mr Finchley expressed a negative view of (country omitted) people in a generic sense. He described them as being one of the -
“world’s most indirect communicating cultures, with a very intense desire not to lose face. This resulted in them rarely admitting to mistakes or being involved in any area, which might lead to them being portrayed in a poor light.”
He also portrayed Ms Wetherill as a parent who became easily stressed in a parental situation. He had little of a positive note to say about her. In this context, he advocated that the mother should spend “quality time” rather than a “quantity of time” with the children.
In addition, he provided his view that the children might be at risk of being handled in a sexually inappropriate way by either their mother, maternal grandmother or other persons of (country omitted) culture. In this context, he wrote as follows:
“the male phallus is considered a fertility symbol or “good luck charm” in both (country omitted) and (country omitted) culture, the mother’s relatives actually being (country omitted). In several regions in (country omitted) fertility cults and practices relating to this believe still exist. These “cults” are also well documented on websites describing (country omitted) sexual preferences or culture. For example: Oral sex is mostly practiced by women not wanting to become pregnant. Male sexual organs (animal or human replicas thereof) are purchased, handled, fondled, ground up and drunk, prayed to, or worshiped; often by women as a means of inducing fertility in a woman, or virility in a man. Whether there is any connection with this (known cult) and the family’s interactions with our children’s private parts is unknown.”[8]
[8] See father’s affidavit filed 26 October 2012 at paragraph 101.1
His lengthy affidavit material is replete with assertions similar to these. In addition, he expressed a generally negative view of the morality and behaviour of (country omitted) people and their culture. Necessarily, to a significant degree, Ms Wetherill is included in these generalisations.
He has attempted to communicate his views, in lengthy letters to Mr L and Ms H, whose records were ultimately subject to subpoena. These are two psychologists whom Mr Finchley has consulted, particularly about his concerns regarding X’s allegedly sexualised behaviour.
When the case returned to court on 21 January 2013, the father indicated to me that he wished to move with X and Y to the (omitted). This was not an issue raised by either party with Ms U. In addition, it seemed to me that the inter-personal relationship between the parties was more complex and conflicted than either had previously indicated.
I was also concerned that, as both parties were self represented, there was the possibility that all relevant material might not be gathered for the court. In these circumstances, I ordered that X and Y be independently represented in the proceedings.
The independent children’s lawyer is Ms P, an experienced family lawyer. Ms P is to be regarded as a party to these proceedings, of equal importance to the father and mother. Ms P has briefed a barrister, Ms DuBarry, to appear on her behalf at the final hearing.
Ms P’s role is one created by statute.[9] As such, Ms P is obliged to carry out a number of statutory duties. Most importantly, she is required to formulate a position, based on the evidence available to her, which she thinks will be in X and Y’s best interests.[10]
[9] See Family Law Act 1975 at section 68L
[10] See Family Law Act 1975 at section 68LA
Another duty incumbent upon the independent children’s lawyer is to analyse any report or other relevant document in order to determine how the best interests of the children concerned are to be best served.
In this capacity, Ms P has arranged for a number of subpoenas to be issued. These have been directed to Families SA; to the psychologists whom Mr Finchley has consulted in respect of the allegations of sexual abuse concerning X and Y; and the (omitted).
Whilst awaiting the appointment of the Independent Children’s Lawyer, the parties requested to attend a further child dispute conference. The purpose of this conference was for them to discuss the now apparently crystallised proposal of Mr Finchley to move with X and Y to the (omitted). The family consultant was once again Ms B. She described Ms Wetherill as being passive and conciliatory, whilst the father presented to her with a sense of entitlement.
In this conference, Mr Finchley indicated that he had been offered a full-time position, with a car allowance, in (omitted), by the (omitted). On his relocation of the children there, he proposed that they should spend three weekends out of four with Ms Wetherill in Adelaide. He proposed that the children be exchanged, between their parents, at either (omitted) or (omitted).
It was Ms P’s view that, given Mr Finchley’s desire to move the children before (omitted) had now apparently fully materialised, whereas before it had been inchoate, it was appropriate that Ms U be asked to revisit her earlier report. I agreed with this contention.
The central issue for the court appeared to be what the potential consequences were for X and Y, if they lived a significant distance away from their mother, given that it was clear she and the children enjoyed a strong relationship together.
In the lead up to the second family report, Ms P filed a lengthy affidavit to which she annexed copies of documents subpoenaed by her from Mr L and Ms H, the psychologists consulted by Mr Finchley; and Families SA. These documents were also made available to Ms U.

The second family report

Ms U’s second family report was released to the parties in early May 2013. In the preface to her report, Ms U indicates that she had access to the memoranda of the various family consultants concerned in the case, as well as the documents subpoenaed by Ms P.
In addition, she indicated Mr Finchley provided her with extensive information about (omitted) and the school and kindergarten which he proposed X and Y would attend respectively in (omitted).
To Ms U, Ms Wetherill indicated that she was aware that Mr Finchley loved the children and they loved him, but she was concerned that he was over protective of them. It was also her perspective that he was only willing to allow her to see the children, on weekends, because this gave him freedom to work on Sundays.
In the light of the additional material available to her, Ms U significantly revised her earlier recommendation in the case. In particular, Ms U was gravely concerned about Mr Finchley’s proposal to relocate the children in a rural area, a significant distance away from their mother. She was also concerned at the tenor of correspondence, which Mr Finchley had provided to Mr L in particular.
However, once again, Ms U had no concerns about the quality of the relationship the children had with each of their parents following an observed interaction. X and Y were described as vying for their mother’s attention. Ms Wetherill was described as coping well with the children’s demands on her.
In interview with Ms U, X indicated that he would not go to the (omitted) because he did not want to move further away from his mother and school. He was positive about his mother. Y indicated to Ms U that he preferred to be with his mother.
Ms U was critical of Mr Finchley for not revealing to her, in the context of the first report, his wish to move to the (omitted). She went so far as to suggest that Mr Finchley had misled her about the issue. This caused her to question his credibility and bona fides, so far as the children were concerned.
She wrote as follows:
“Mr Finchley appears to have provided misleading information because he has known about the probability of relocation to a country area since May 2011. This casts some doubt on the veracity of his statements. It also undermines his emphasis on X attending his current school.
A further concern is that Mr Finchley appears to be gradually contriving to have both boys spend the majority of time with him and less time with their mother. Y’s time with his mother has already been reduced since the previous report and Mr Finchley has suggested a further reduction in his latest proposal.”[11]
[11] See family report dated 1 May 2013 at paragraphs 38-39
Ms U was concerned that Mr Finchley might have an unrealistic view about how easily he might balance the pressures of being a single parent with the demands of being a (occupation omitted), if he did indeed move to the (omitted) with the children. More significantly, given Ms U’s doubts about the veracity of Mr Finchley’s proposal for relocation, she opined that he might be a person who had difficulties dealing with reality.
This concern arose in the context of what Ms U viewed as the excessive level of documentation prepared by Mr Finchley and the contents of the letters, which he had written to the psychologists, who had counselled X and Y. Ms U was concerned that Mr Finchley may have an unhealthy pre-occupation with sexual matters and an inclination to use his concerns to undermine the mother to the children.
In this context, Ms U wrote as follows:
“On examination of the excessive documents put to the Court by Mr Finchley, and the subpoenas of letters written to the psychologists, there is a suggestion that Mr Finchley is having some difficulties dealing with reality. The letters to the psychologists suggest he has manipulated information given to them to meet his own needs and it is apparent that he has asked the children leading questions with regards to sexual activities relating to their mother. From all of these documents there is nothing to substantiate that Ms Wetherill has sexually abused her children. Behaviour difficulties have been suggested as being related to anxieties and anger at the separation of their parents. It is concerning that the constant questioning of the children can only have them wondering what is wrong with them. The directions Mr Finchley gave to Mr L regarding the assessment on 21 February 2013, suggests he is still actively trying to find a way to undermine the mother. There is a possibility that if he gains more time with the children he may undermine their relationship with her by having them believe she has been abusive toward them.
The information provided suggests to the writer that Mr Finchley may be a cunning and manipulative man or he may be mentally unstable.”
In contrast, Ms U was impressed with Ms Wetherill, whom she regarded as being “practical and realistic in her approach to the children.”[13] In particular, Ms U viewed Ms Wetherill as being disinclined to undermine Mr Finchley and focussed on the children’s best interests.
[13] Ibid at paragraph 43
Accordingly, Ms U was more in favour of the mother’s proposal than the father’s, which clearly was a radical departure from her first report. In reaching this conclusion, Ms U was strongly influenced by her concerns regarding Mr Finchley’s mental stability, given the amount of time and effort he had apparently put into undermining the mother and the undue focus he had placed on the purported sexual indicators exhibited by X.

The legal principles applicable

Part VII of the Family Law Act deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(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).”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[14] In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[15] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[16]
[14] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
[15] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[16] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
As I have already indicated, pursuant to the provisions of section 60CC(2A), the court is required to give greater weight, in its determination of a child’s best interests, to issues arising under the primary consideration relating to the protection of children from abuse, neglect or family violence. The recent changes to the Family Law Act are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[17]
[17] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
In this case, notwithstanding the concerns raised by Mr Finchley, regarding the alleged sexual abuse of X and Y by Ms Wetherill, this does not appear to be a case where either party asserts that the presumption of equal shared parental responsibility is rebutted. However, given the fact that neither parent was legally represented, it may be the case that neither Mr Finchley nor Ms Wetherill has given the issue their considered attention.
In regards to the issue of sexual abuse, in my view, Mr Finchley has sent mixed messages. At some stages, he has indicated that he regards the mother’s conduct as being benign, as it has been culturally generated. However, at other times, he has expressed a high degree of vigilance and alarm. Certainly, the issue has never gone away from his perspective. In those circumstances, in my view, it behoves the court to pay close heed to his concerns and apply the appropriate legal considerations which apply to them.
Under s.60CC(2A), the court is required to give greater weight, in its determination of a child’s best interests, to issues arising under the primary consideration relating to the protection of children from abuse, neglect or family violence. The recent changes to the Family Law Act are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[18]
[18] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act. It means:
“(a)   an assault, including a sexual assault, of the child; or
(b)     a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)     serious neglect of the child.”
In respect of the issue of sexual abuse, the emphasis, in the definition, is on the sexual exploitation of children. The definition speaks of the use of a child as a sexual object. In my view, the legislative focus is on the evils implicit in an individual obtaining some form of sexual gratification from interacting with a child. Necessarily, the definition excludes innocent or affectionate interactions between a person and a child or interactions relating to health or hygienic concerns for the child.
The suggestion that a parent (or a person placed in a role of authority or supervision in respect of a child) would sexually abuse a child of tender years, in his or her care, is a concept that is repugnant and foreign to the experience of most members of the community. As a result, there is a natural tendency to believe that such abuse does not occur or occurs only rarely or only amongst certain classes of people.
Analysis of notifications of abuse to child protection authorities throughout Australia shows the actuality to be otherwise. Sexual abuse of young children can and does occur and is not restricted to any particular group within society.
As such, the potential detriment to a child of being subjected to sexual abuse cannot be understated. It represents:
“…the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, in both the short and long term, can be devastating.”[19]
[19] Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W [Abuse allegations: unacceptable risk][2005] Fam CA 892 at paragraph 94
Having set out the importance the court needs to give to allegations of sexual abuse in order to safe guard the best interests of the child concerned, it is now appropriate to outline the difficulties, which often confront the court in such cases, both at the interim and final stage.
Frequently, the allegations concern children of pre-school or primary school age, whose cognitive facilities are not fully formed and so they are unable to give a clear and coherent account of what has happened, certainly not when compared to an older child or adult, placed in the same situation, when reporting a crime.
In addition, very often, the only witnesses to such incidents are the alleged victim and the alleged perpetrator and there is little or no corroborative evidence to support the allegations in question. As such, it may be impossible to determine definitively whether such abuse has or has not occurred.
However, given the structure of Part VII of the Family Law Act 1975, particularly its emphasis on protecting children from the consequences of sexual abuse, the court cannot disregard such allegations or disregard their seriousness because of evidentiary difficulties which arise in establishing the truth or otherwise of the allegations concerned.
In addition, in some cases, allegations of sexual abuse occur in the aftermath of relationship breakdown or where the parents concerned communicate poorly, if at all, because of antipathy and suspicion or, as in this case, because of cultural difference.
For obvious reasons, such circumstances provide fertile ground in which words or actions can be misconceived or misunderstood. Regrettably, it is also not unknown for allegations of sexual abuse to be made for tactical or mischievous reasons.
As Fogarty J said in N&S and the Separate Representative:
“…courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”[20]
[20]See Per Fogerty J in N & S and the Separate Representative (1996) FC 92-655 referred to in W & W (supra) at paragraph 95
Accordingly, allegations of sexual abuse involving children present the court with a dilemma which is difficult to resolve. Sexual abuse of children does occur and is an issue of the utmost gravity. However, the reality is that “child sexual abuse is often as difficult to prove as it is difficult to refute.”[21]
[21] See N & S and the Separate Representative (supra) at page 82,710
The consequences of a court mistakenly disregarding an allegation of sexual abuse are likely to be horrendous for the child concerned. On the other hand, so is the court giving credence to an erroneous allegation. Such an outcome may be equally detrimental for the child concerned, as it may result in him or her having a healthy and happy relationship with a parent either completely severed or significantly curtailed.
In N & S and the Separate Representative Fogarty J said as follows:
“This is where the dilemma arises. Does one take the step of terminating or limiting that relationship where one does not know whether the alleged events took place? And how does one sufficiently account for the fact that because of the nature of the offence any real degree of certainty may be impossible to achieve, and that in any event the ultimate determinant is the welfare of the child?”[22]
[22] See N & S and the Separate Representative (supra) at page 82,711
The leading authority in respect of the issue of sexual abuse involving children is the High Court decision of M & M.[23] In this case the High Court confirmed that in any matter involving allegations of abuse, the only duty of the court is to “make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.” As a result of this emphasis, the court does not have an obligation or duty to “resolve in a definitive way the disputed allegation of sexual abuse.”
[23] See M & M (1988) FLC 91-979
The court must bear in mind that proceedings, in respect of care arrangements for children pursuant to the Family Law Act 1975, are not strictly disputes between the parties involved because the primary enquiry is into the result which will best serve the interests of the children concerned. Nor, where there are allegations of sexual abuse, are they criminal proceedings.
In M & M, the High Court formulated the test, which has been referred to as the “unacceptable risk test” as a standard to achieve a balance between the risk of detriment to a child from sexual abuse and the possibility of benefit to the child from parental access. The High Court said as follows:
“To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”[24]
[24] See M & M (supra) at page 77,081
In W and W [Abuse allegations: unacceptable risk][25] the Full Court summarised a number of authorities dealing with abuse allegations. In particular, the Full Court approved the comments of Fogarty J in N & S and the Separate Representative[26]:
“Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the Court will often by required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations for the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
[25] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
[26] See N & S and the Separate Representative (supra) at page 82,713-82,714
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[27]
[27] see MRR v GR (2010) 240 CLR 461 at [13] & [15]
The legal principles to do with a child travelling outside Australia, in the company of one of his or her parents, in circumstances where the other parent concerned opposes that travel, are complex. Fundamentally, the court must determine whether the travel proposed is likely, on balance, to be in the child’s best interests. Necessarily this exercise must invoke the weighing and assessing of competing considerations and the balancing of the applicable section 60CC factors.
In considering the overseas travel proposed, the court must obviously turn its mind to the potential impact the travel may have on the ability of the child concerned to have a meaningful relationship with the other of his or her parents [section 60CC(2)(a) & (3)(b)].
Clearly if a parent absconds with a child overseas, such an action must have the most serious implications for the nature of the relationship the child has with the parent left behind. Such considerations raise the following practical issues and criteria:
·the length of the proposed stay out of the jurisdiction;
·the bona fides of the application;
·the effects on the child concerned of any deprivation of time spent with the parent who remains in Australia;
·any threats to the welfare of the child concerned by the circumstances of the proposed environment overseas;
·the degree of satisfaction which the court has that a promise made by a party to return to Australia will in fact be honoured.[28]
[28] See Kuebler & Kuebler (1978) FLC 90-434 at page 72,205

Ms Wetherill’s concerns about Mr Finchley are more subtle. To her credit, she accepts that Mr Finchley loves both X and Y and wants the best for them. However, as a result of his own past experiences and individual character traits, he is hyper-sensitive to issues of sexual abuse and accordingly has a propensity to be over protective of the children.
In addition, he has a negative view of the mother and her cultural background. These factors are likely to lead to him having a tendency to undermine the children’s relationship with their mother. Given the children’s close relationship with their mother, this is not likely to be conducive to their long term emotional wellbeing.
In addition, I accept Ms Wetherill’s evidence that Mr Finchley was somewhat controlling of her, during the parties' marriage, particularly in respect of financial matters. This domineering behaviour has continued since the parties’ separation. It has manifested itself by the father’s attempts to exclude the mother from an involvement in the children’s lives by his choice of school for X and the subterfuge surrounding his proposal to move the children’s place of residence to the (omitted).
Children learn their behaviour and attitudes from their parents. In this sense, Mr Finchley may constitute an inappropriate role model for X and Y, as they grow into maturity, particularly if he attempts, either actively or passively, to inculcate his attitude for (country omitted) individuals into X and Y.
However, once again, to unduly restrict the children’s level of relationship with their father, because of these concerns, would represent, in my view, a disproportionate response to the level of risk involved.
On any view, X and Y have a close and loving relationship with both their parents. In all the circumstances of this case, it is my view that the court needs to give a significant level of emphasis to how both of the children can continue to benefit from knowing and interacting with both their mother and their father, in the difficult circumstances which currently prevail between their parents.
The rationale of section 60CC(2)(a) is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced. I accept that to be meaningful parental relationships require both sufficient temporal quantity and quality of shared time to sustain them.
A relationship does not necessarily become better if a parent spends more time with a child, but for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain “meaningful”.
Up until this stage, as a result of different developmental issues pertaining to the children, there have been different regimes for the care of X and Y respectively. Mr Finchley has been responsible for the school week, so far as X has been concerned, whilst Y has spent longer periods of time, in his mother’s care, as he has been more emotionally dependant upon her.
It is Ms Wetherill’s position that it is now appropriate for the children to be parented in the same manner. In general terms, Mr Finchley appears to agree with this position but not how it should be practically implemented, as both parties seek orders that would see the children living predominantly with him or her.
In an ideal world, the interests of X and Y would be best served by being able to interact with both their parents, in a variety of settings and circumstances. I accept that each child has a meaningful level of relationship with both his mother and father and is likely to benefit from the continuation of such a level of relationship. However, whether such an outcome can be achieved, in this case, must depend on the practical realities of the situation currently confronting Ms Wetherill and Mr Finchley.

Additional considerations

a) The children’s wishes

The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[35]
[35] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56
Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in any particular case. Nor is he or she required to express an explicit wish as to which parent or other significant person he or she wants to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[36]
[36] See H v W (1995) FLC 92-598 at 81,944
X is a little over nine years of age; Y is just over four. Accordingly, given their level of maturity, the court must be cautious about any views attributed to them. It also seems to be the case that Ms U did not see her role as being focussed on ascertaining any preference either child may have.
X was clear about what he did not want. He did not want to live on the (omitted) and was emphatic that he would not go there. He seems to be well disposed towards his mother and indicated that he likes visiting her on weekends.
Y apparently told Ms U that he preferred being with his mother, which has been his experience until recently. Although, he is clearly far from being developmentally mature, given this experience, his viewpoint cannot be summarily dismissed.
Overall, I do not think that the children’s viewpoints, in this case, are a significant factor, one way or the other. Certainly, this is not a case which turns on the apparent preference of either child. In my view, the case falls to be determined by reference to other factors.

b) The nature of the children’s relationship with each of their parents and significant others

I accept Ms U’s evidence that the children have a close and loving relationship with both of their parents. Accordingly in whatever final order the court makes, it should ensure that these central relationships for X and Y are fostered and supported, subject to other considerations relevant to their best interests and what parenting orders are reasonably practicable to put into operation.
It would also seem to be the case that X and Y have loving and interested grandparents, on both their paternal and maternal aspects. I have not heard from any of these interested grandparents, who are likely to be separated by a significant gulf of culture and background.
The children live in their paternal grandparent’s home. Accordingly, it must be the case that they interact with their paternal grandparents on an almost daily basis. It also seems likely that Mrs Finchley senior provides a significant component of X and Y’s day to day care.
The children’s maternal grandmother lives in (country omitted). However, she has visited the children in Australia in the past. Although I have not taken evidence specifically from the children’s maternal grandmother, it seems more likely than not that X and Y will derive benefits from knowing and interacting with her. The same considerations are likely to pertain to the children’s maternal uncles.
In this regard, I note that Mr Finchley has a jaundiced attitude towards (country omitted)’s generally and Ms Wetherill’s brothers specifically, in regards to their alleged predilection for pornography. In my view, I must be careful not to give undue weight to the inchoate concerns of Mr Finchley. Having seen Ms Wetherill, at close quarters, and having made some assessment of her character and level of insight, I do not think that she would willingly expose the children to any person, including one of her relatives, who would do them harm or expose them to any unsavoury influence.
In my view, it is likely to be important to X and Y’s sense of identity that they gain a sense of where they fit in, in their wider family. In general terms, children do better if they understand that they are part of a wider family, comprised of grandparents on both sides, uncles, aunts, cousins and the like.[37] This is particularly so given the diverse cultural background of the children concerned.
[37] See Bright v Bright (1995) FLC 92-570 at 81,658
The relationship between siblings is potentially one of the most significant of all human relations. In this, it seems incontrovertible that X and Y have a close and loving relationship with one another. In these circumstances, I do not think it likely to be conducive to their best interests that there be different regimes for their care in future.

c) The extent to which each of the children’s parents has taken, or failed to take, the opportunity to be involved in decision making and to spend time or communicate with the children

In my assessment, both the mother and the father are committed parents, who aspire to be as fully involved as possible in the lives of X and Y. Ms Wetherill has taken every opportunity available to her to spend time with the children. The same considerations apply to Mr Finchley.

ca) Provision of financial support for the children

Although Mr Finchley expressed a desire to be nominated as the “collector of payments” for the children, he did not flesh out what he meant by this. He also expressed a view that private collect arrangements for child support had broken down and, by necessary implication, considered that the Child Support Agency should take over formal responsibility for collecting child support relating to X and Y.
In my view, this is not a case which is centred on issues to do with financial support for the children. Mr Finchley is likely to be in receipt of social security, with some limited part-time work, for the foreseeable future. Ms Wetherill will remain a modest salary earner.
In these circumstances, both parties’ level of income is likely to remain amenable to the child support assessment process. Both Mr Finchley and Ms Wetherill are likely to face financial challenges in future, but I do not think that either will attempt to evade their respective responsibility to support X and Y. It remains for the parties to decide if they wish the Agency to collect payments pursuant to any applicable assessments of child support.

d) The likely effect on the children of any changes in their circumstances

Up until this stage, X and Y have spent regular blocks of time with both of their parents. It is clearly the case that the children know their father and mother well and are comfortable and familiar with both of their homes. In these circumstances, I do not think that the change proposed by Ms Wetherill can be considered to be a significant one for the children.
In addition, in my estimation, Ms Wetherill is likely to be sensitive to any adjustment needs of the children concerned and to be able to ease any transition difficulties for them. As I observed, in response to the earlier oral interim application, made by Ms D, to change immediately the living arrangements for the children, it is usually better that such changes occur in a predictable and controlled manner.
The logical time for any change, in the children’s living arrangements, is at the end of the third term school holiday. This will enable the children to be prepared for any transition and for it to occur as seamlessly as possible. For obvious reasons, the first day of the new term is likely to be the most suitable day for the children to start at a fresh school.

e) The practical difficulties and expense of the children spending time and communicating with each of their parents

Ms Wetherill lives in (omitted). Mr Finchley lives in (omitted), a (omitted) suburb of Adelaide approximately thirty kilometres away. The two locations are separated by suburban streets and highways, with varying degrees of traffic density, depending on the time of day.
Ms Wetherill does not have a motor vehicle and has been reliant on public transport, in the past, to get to and from (omitted). Mr Finchley does have a motor vehicle but has experienced mechanical difficulties with it, which have been expensive and time consuming for him to repair.
Accordingly, there are reasonable but not insurmountable logistical difficulties arising for contact arrangements for the children, whether they live predominantly in (omitted) or (omitted). However, up to this stage, the parties have demonstrated a capacity to overcome those difficulties and I have no reason to think anything other than the parties will maintain their commitment to making any contact arrangements work in future, whatever is the ultimate outcome of these proceedings.

f) The capacity of the parties to provide for the children’s emotional and educational needs

Both parties have tertiary qualifications. Ms Wetherill is clearly a person who appreciates the benefits of education. As such, I accept that she is well placed to ensure that both children achieve their full academic potential.
I hold similar views in respect of Mr Finchley. The evidence indicates that X is doing well at school, at present. As such, I accept that Mr Finchley also recognises the importance of the children doing well at school.
The issue in respect of who of the parties is better placed to provide for the emotional needs of the children is in a different category. In my view, the evidence strongly indicates that Ms Wetherill is far better placed to provide for X and Y’s emotional needs than is Mr Finchley. In my view, given the findings which I have made in the case, this is a central consideration.
I accept that X and Y have a close and loving relationship with their mother, who has provided a significant component of their emotional succour, during their lives to date. This is particularly so in respect of Y. It also seems to me to be more likely than not that Ms Wetherill was the children’s primary carer prior to the parties’ separation in 2010.
Mr Finchley is fixated on the potential for the children to be sexually abused, either by the mother or one of her relatives in (country omitted). In my assessment, the level of his concern is grossly out of proportion to the level of risk arising. He has, to utilise Dr E’s terminology, overvalued ideas relating to child sexuality and safety. As a consequence, he views Ms Wetherill through a prism of suspicion and some passive hostility.
As a consequence, it is my assessment that Mr Finchley has a compromised capacity to support and encourage the children’s emotional dependence on their mother. He is likely to remain fixated on the possibility that she or one of her family have seriously mistreated the children in some way. As a result, he is likely to find it difficult to portray the mother and the (country omitted) culture from which she springs, in a positive light to the children.
Although Mr Finchley may not directly denigrate the mother to the children, he may do so in a passive or indirect way. He is likely to remain hyper protective of the children and to view Ms Wetherill as the person from whom the children need to be protected. I do not think that it is drawing too long a bow to surmise that this state of affairs may lead to the children becoming confused about their identity and may cause them to question their emotional loyalty to their mother. This is not likely to be conducive to their emotional well being.
On the other hand, to her credit, Ms Wetherill recognises the importance of the children having a close and loving relationship with their father. Her criticisms of Mr Finchley are muted and appear to be objectively reasonable. She has tried to avoid conflict with Mr Finchley. As such, I am satisfied that she is focussed on the best interest of X and Y rather than on any personal agenda of her own in these proceedings.

g) The children’s maturity, sex, lifestyle and background

The children are the product of quite different cultural experiences and backgrounds, so far as their parents are concerned. It is inherent in Ms Wetherill’s case that, although X and Y are to be regarded as children, who have grown up and developed to date, in the Australian cultural mainstream, in which English is the predominant language, they are to be regarded as (country omitted) children, at least in part.
The children have the appearance of being (country omitted) children. As such, strangers to them are likely to regard them as being (country omitted), from their appearance alone, notwithstanding they have grown up exclusively in Australia. Although Australia is a multicultural society, which prides itself on its racial tolerance, prejudice is not unknown within Australia. X and Y may conceivably be exposed to such prejudice because of their appearance.
In these circumstances, it seems likely to be useful to them to be exposed to positive role models, who share their racial background and appearance. The best such role model, in my view, is their mother. This is particularly so given Mr Finchley has expressed some negative attitudes towards (country omitted people) and (country omitted) culture generally.
I have already alluded to the objects of the part of the Family Law Act and the principles underlying them [section 60B(1) & (2)]. One of these principles is that “children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
I accept that part of X and Y’s cultural inheritance is their (country omitted) background, which they are entitled to share and enjoy with others who have it in common with them. In this context, it would appear likely that they will benefit from being exposed to (country omitted) lifestyle, culture and traditions in the locale from which they stem.
The applicable legislation also speaks of the right a child has to interact regularly with significant relatives, specifically identifying grandparents in this regard. Grandparents have the potential to be very important to children. The children’s maternal grandmother lives in (country omitted), as such she is likely to be a significant conduit for the children to enjoy the (country omitted) aspects of their background.
She is likely to be placed to provide the children with knowledge and information about their wider (country omitted) family and forebears, in context. It is also likely that the children’s relationship with their grandmother will gain depth and texture if they are able to interact with her in the social and cultural milieu of which she is part.

Although the children are young, it seems more likely than not that they will gain a richer appreciation of the nature of the world outside of Australia by travelling to (country omitted). This appreciation is likely to be more nuanced than that available to them through conventional educational media, such as films and books or lessons in school.
Ms Wetherill has indicated in her evidence that she wishes the children to have some level of fluency in the (country omitted) language, which is her mother tongue. In addition, at her home, she exposes the children to (country omitted) influences to strengthen their associations with (country omitted). For obvious reasons, these influences will become stronger if the children are able to experience (country omitted) culture, first hand, in (country omitted).
It seems likely that the trip will broaden X and Y’s horizons. Indeed, it is not beyond the realms of possibility that the excitement and novelty occasioned by the trip will last a lifetime for the children. However, I accept that this possibility is likely to be less for Y than for X, given the former’s tender years.
I accept that there are dangers implicit in any type of overseas travel. However the mother is very familiar with the nature of day to day life in (country omitted) and, in my view, will be able to anticipate any likely dangers and take appropriate precautions in respect of them. In my assessment, she is unlikely to be negligent in her arrangements for the children or willingly expose them to the potential to come to serious harm.
In my view, Mr Finchley’s concerns about (country omitted) are inchoate. I do not accept that Ms Wetherill would be complicit in exposing the children to any form of pornography. In my assessment, the potential benefits of travelling to (country omitted) outweigh any deficits, provided any such trip is largely confined to the school holidays and Mr Finchley is given adequate notice of it.
I consider the risk of Ms Wetherill disregarding any requirement, incumbent upon her, to return the children to Australia as being intrinsically slight. She is well settled in this country, where she has employment and prospects. More significantly, she recognises that the children are likely to have greater prospects, in terms of education and opportunities, in Australia than in (country omitted). My assessment of her is that she is unlikely to jeopardise the children’s prospects.
I acknowledge that (country omitted) is not a signatory to the Hague Convention, however, it seems to me that Ms Wetherill accepts that X and Y have a close and loving relationship with their father and, as such, she would not take the selfish and malicious step of severing this central relationship for the children, by retaining them in (country omitted). In these circumstances, I do not think it is necessary to impose any security requirement on the mother’s travel with the children to (country omitted).

h) Aboriginality

This is not a relevant consideration in this case.

i) The attitude that each parent has demonstrated to the responsibilities of being a parent

I think both parents aspire to being the best possible parents they can be. One of the important duties of a parent is to encourage and support an appropriate level of relationship between the children concerned and the other parent.
I am concerned that, due to his innate level of suspicion of the mother and other aspects of his personality, Mr Finchley may have deficits in this regard. In particular, I am concerned by his desire to reduce the children’s time with their mother, which was implicit in his application to move with them to the (omitted). I do not hold the same concerns in respect of Ms Wetherill.

j) Family violence orders

k) Any family violence order

There are no relevant family violence orders applicable to the parties in this case. I do not propose to say anything further about the issue of family violence at this juncture.

l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings

Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
For these reasons, it seems to me desirable that the court should bring about, in any orders made, as stable a situation as possible, for the children, which will obviate the need for any further litigation.
In the circumstances of this case, it is difficult to see any particular outcome which, of itself, is one which is particularly shaped so as to reduce the prospect of further litigation between the parties. In the past each has expressed a desire to avoid litigation, if at all possible. However, given their different backgrounds and characters, litigation became inevitable.
In my view, although both parties are essentially well motivated individuals, the differences between them are likely to remain for the foreseeable future. In particular, Mr Finchley is likely to remain suspicious of Ms Wetherill. These are not good harbingers for the avoidance of further litigation between the parties.

The presumption of equal shared parental responsibility

Section 61DA(1) creates a positive presumption that it is in the best interests of any child for his or her parents to have equal shared parental responsibility for the child. Ms Wetherill wishes the presumption to be applied. Mr Finchley does not seem to have closely considered the issue.
In this case, I do not consider that the presumption is rebutted because of any reasonable belief that I have that either party would abuse either X or Y or expose them to family violence.
The only ground available for the presumption to be rebutted is if I am satisfied, on the evidence currently available to me, that it would not be in X and Y’s best interests for parental authority for them to be conferred equally and severally on their parents.
An order which provides for equal shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them.
This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made when they need to be made without consultation.
No matter the degree of conflict between the parties, they have one thing in common, which unites them as a family, albeit a separated family. Both the father and the mother aspire to being fully involved in all aspects of X and Y’s life, on both a day to day and long term basis.
Because of their ties of love and affection for X and Y, both Mr Finchley and Ms Wetherill will be vitally interested in all major decisions pertaining to the children and will want to play a part in making them. Because of their devotion to the children, both parties have much to offer the children.
In all these circumstances, there seems an extreme element of artificiality to confer sole parental responsibility on one or other of the parties merely because of difficulties in their relationship, which have impeded their capacity to communicate effectively.
The parties separated comparatively recently in turbulent emotional circumstances. In common with the majority of parents, who come into court seeking an adjudication of parenting issues between them, they do not communicate well and have scant resources to create organically or incrementally a respectful and empathetic parenting relationship with one another. In my view, it cannot be the intent of the legislature to rule out shared parenting in all such cases.
In any event, the presumption deals with the allocation of parental responsibility, not the strict allocation of time, which a child should spend with each of his or her parents. In this case, both parties want to have parental responsibility for X and Y because of their love for them and their mutual interest in their ongoing development. In these circumstances, I have decided to make an order that the parties have equal shared parental responsibility for X and Y.
Although it may be difficult, in the short to medium term, for the parties to consult with one another, about all major long-term issues, which are likely to arise in respect of X and Y, it is my view that they should at least try to do so. It is implicit, in such a state of affairs, that the parties are to keep the other informed about these issues and not embark upon any unilateral decision making, which is likely to worsen rather than improve their parenting relationship.

What should follow from the presumption – reasonable practicality

The next part of the exercise is to consider what should follow from the presumption. The consequences of the presumption are mandated by section 65DAA. I am required by the applicable legislation to consider an equal time arrangement first before turning to consider a regime of substantial and significant time. Both such outcomes are subject to the affirmative satisfaction of two conditions: they must be in the best interests of the children affected; and reasonably practicable to implement.
In purely hypothetical terms, the most desirable outcome for X and Y, would be one were they are able to see each of their parents easily, in all manner of circumstances, each week, so that their positive relationships with both Ms Wetherill and Mr Finchley may be maintained.
However this is not the end of the court’s deliberations. It is also directed to consider what is objectively practical for the children and their parents, based on the reality of the situation in which the family finds itself, not merely what is theoretically desirable for the children.[38]
[38] See MRR. v GR (supra) at paragraph 15
Section 65DAA(5) provides a checklist for the court of what to consider in the context of what is practicable and what is not in parenting relationships, particularly whether it is feasible to impose either an equal time regime or a substantial and significant time arrangement.
The parties live about thirty kilometres apart. Ms Wetherill does not have a motor vehicle. The children will need to attend a primary school reasonably proximate to one or other of their parent’s homes. These factors, of themselves, militate against a shared care or substantial and significant time regime, on practical grounds alone.
However, in my view, there are other significant factors, which effectively rule out either such outcome. Given the father’s intense suspicion of the mother and his propensity to undermine her relationship with the children, it is doubtful that the parties’ current parenting regime is cohesive enough to sustain either an equal time or substantial and significant time regime.
Although the parties attempt to communicate politely and effectively with one another, in my assessment, there remain many barriers between them. The parties do not currently communicate well. As such, they have a limited facility to resolve areas of dispute arising between them.
From Ms Wetherill’s perspective, Mr Finchley has a propensity to act high-handedly, in respect of arrangements for the children, in order to get his own way. In my view, she is justified in her views, particularly given the circumstances surrounding X’s enrolment at primary school.
Most importantly, I am concerned that either an equal time or a substantial and significant time regime is likely to have a detrimental emotional impact upon X and Y. This concern arises because of Mr Finchley’s attitude towards Ms Wetherill and his hyper-vigilance in respect of X and Y.

Conclusions

I have come to the conclusion that the parties in this case should have equal shared parental responsibility for X and Y but that it is not reasonably practicable for the children to spend either equal periods of time or substantial and significant periods of time with their parents.
In my view, it is clearly the position that the children need to live predominantly with one parent and spend time with the other parent on weekends; during school holidays; and on defined special occasions.
Having considered the applicable considerations, arising under section 60CC, I have come to the conclusion that the relevant factors favour the children living predominantly with Ms Wetherill. In my assessment, she is the parent more capable of supporting the emotional needs of the children and ensuring that they have a meaningful level of relationship with their other parent.
As a consequence of this decision, it follows that she should be able to enrol the children, at the (omitted) Primary School, from the start of term 4 of this current year. I consider that this date marks an appropriate time for the children to begin to live predominantly with her. The relevant date is Monday 14 October, following a two week school holiday.
In order to assist the children’s transition to the new arrangement, I will order that the children spend the first half of the end of term 3 holidays in Mr Finchley’s care and the second half in Ms Wetherill’s care.
Ms Wetherill has proposed that the children spend alternate weekends, with their father, during school terms, from 6.00 pm Friday until 6.00 pm the following Sunday. She also proposes that the school holidays, in respect of the children, be divided equally between the parties.
In my view, such a regime will ensure that the children will continue to have a meaningful level of relationship with their father and, in all the circumstances of the family concerned, is one which is capable of being practically implemented. Although it is a relatively extensive arrangement, I accept that it does not amount to a substantial and significant time regime.
I will also make orders in respect of special occasions, particularly so far as Christmas; Father’s Day; Mother’s Day; Easter; and the children’s birthdays; are concerned, with the intent that X and Y will be able to spend time with each of their parents on these occasions. I will also make standard orders regarding the exchanging of information, concerning the children, between the parties. There is no reason why the children should not be able to communicate regularly, with each of their parents, by telephone.
In my view, it is also appropriate that I make an order that will result in each of the parties being restrained from taking either of the children to be examined by a psychologist or psychiatrist or undertaking any process of counselling without the formal consent of the other parent.
Finally, I have come to the conclusion that it is likely to be in the children’s best interests to be able to visit (country omitted), in their mother’s care, provided conditions are attached to such a visit. The visits should be no more than four weeks in duration and should be confined, so far as is practicable, to school holiday periods. There should be no more than one such trip every two years. In my view, if Ms Wetherill wishes it, there should be no impediment to her taking the first such trip in what remains of 2013.
It is appropriate that the mother give the father four weeks notice, in writing, of any such trip and provide him with an itinerary of the travel arrangements, including where she and the children will be staying and details of how they may be contacted electronically.
It is implicit in these orders that the mother is authorised to access the children’s passports, which are currently in the custody of the court or, if required, to apply to the relevant authorities for fresh passports to be issued.
For reasons provided within these reasons for judgement, I do not assess it as necessary to impose any form of security on the mother in respect of such travel and in the circumstances, do not propose to maintain the children’s names on the Airport Watch List.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding three hundred and seventy-six (376) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 5 September 2013

[12] Ibid at paragraphs 40 & 41

[2013] FCCA 1197

5 September 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Consent

Jurisdiction

Remedies