Wheden and Wheden
[2010] FMCAfam 1107
•5 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WHEDEN & WHEDEN | [2010] FMCAfam 1107 |
| FAMILY LAW – Parenting – relocation. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61B, 61DA, 65DAA, 62G. Evidence Act 1995, s.80 |
| Andrew & Delaine [2009] FamCAFC 182 (unreported) BBT & JMT (1980) FLC 90-809 D & P [2006] FamCA 170 (unreported) Friscioni & Friscioni [2010] FamCAFC 108 Hall & Hall (1979) FLC 90-713 Harris & Harris (1977) FLC 90-276 M & M (1978) FLC 90-429 Re JRL; ex parte CJL [1986] HCA 39 Wood (1976) FLC 90-098 “Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia” (1977) 30 Australian Social Work 1 |
| Applicant: | MR WHEDEN |
| Respondent: | MS WHEDEN |
| File Number: | SYC 839 of 2010 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 24-25 June, 6 July, 19 August 2010 |
| Date of Last Submission: | 19 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenny |
| Solicitors for the Applicant: | Campbell, Paton & Taylor |
| Counsel for the Respondent: | Mr Dura |
| Solicitors for the Respondent: | Swaab Attorneys |
ORDERS
That the children [X] born [in] 1999 and [Y] born [in] 2004 (the children) live with the father.
That the parties have equal shared parental responsibility for the children.
That the children spend time and communicate with the mother as follows:-
(a)In the event that the mother lives within 50 kilometres from the township of [W]:
(i)Each alternate week from Friday after school to the following Friday before school;
(ii)For the first half of NSW school holiday periods commencing10.00am the first day of school holiday to 5.00pm on the midpoint day of the school holiday period in odd numbered years;
(iii)For the second half of NSW school holiday period commencing 10.00am on the midpoint day of the school holiday period to 5.00pm on the Saturday prior to the commencement of the new school term in even numbered years;
(iv)Mother’s day weekend from Friday after school to Sunday 5.00pm;
(v)Shared children’s birthday.
(b)In the event that the mother lives more than 50 kilometres but less than 200 kilometres from the township of [W]:
(i)Each alternate weekend from Friday after school to Sunday 5.00pm or Monday 5.00pm if Monday is a public holiday;
(ii)For the first half of NSW school holiday periods commencing 10.00am the first day of school holiday to 5.00pm on the midpoint day of the school holiday period in odd numbered years;
(iii)For the second half of NSW school holiday period commencing 10.00am on the midpoint day of the school holiday period to 5.00pm on the Saturday prior to the commencement of the new school term in even numbered years;
(iv)Mother’s day weekend from Friday after school to Sunday 5.00pm;
(v)Shared children’s birthday;
(vi)If the mother lives within 100 kilometres of the children’s school, the contact referred to in (i) above will conclude with the mother taking the children to school on the Monday morning, or Tuesday if Monday is a public holiday.
(c)In the event that the mother lives in Sydney, the children shall spend time with the mother:
(i)Two weekends per month from Friday after school to Sunday 5.00pm or Monday 5.00pm if Monday is a public holiday except that such contact shall occur within 100 kilometres of [W] once a month OR at the mother’s election, once every three weekends in Sydney from Friday after school to Sunday 5.00pm or Monday 5.00pm if Monday is a public holiday;
(ii)For the first half of NSW school holiday periods commencing10.00am the first day of school holiday to 5.00pm on the midpoint day of the school holiday period in odd numbered years;
(iii)For the second half of NSW school holiday period commencing 10.00am on the midpoint day of the school holiday period to 5.00pm on the Saturday prior to the commencement of the new school term in even numbered years;
(iv)Mother’s day weekend from Friday after school to Sunday 5.00pm;
(v)Shared children’s birthday.
(vi)On any occasions that the mother is in [W] and upon providing the father with not less than 14 days prior notice of her intention to spend time with the children and provided that she insures the children attend any activities they are required to attend during the period they are in the care of the mother 3.4
(d)That the children’s time with the mother pursuant to 3 hereof be suspended on the father’s day weekend from Friday after school to Sunday 5.00pm.
(e)The children’s time with the mother on weekends shall be suspended during school holidays.
(f)Such other times as mutually agreed by the parties from time to time.
(g)The children shall have liberal telephone communication with the mother between the hours of 6.00pm and 7.00pm.
For the purpose of the children spending time with the mother in accordance with these orders except for paragraph 3(a) above, the parties shall meet at a midway point between their respective residences for the purpose of change over.
For the purpose of the children spending time with the mother during school holidays when she has the first half, and on weekends when the children are to be returned on a non-school day, the mother shall collect the children from their school at [W] on Friday and return the children to the father’s residence at the conclusion of such contact.
That the parties authorise the children’s school to provide to the parents any information and/or documents requested by the parents.
Both parents are restrained from saying anything to or in the presence of the children which is in anyway abusive, belittling or demeaning of the other parent and further are restrained from allowing any other person to say anything to or in the presence of the children which is in anyway abusive, belittling or demeaning of the other parent.
Both parents are restrained from saying anything to or in the presence of the child about any dispute between the parents.
That the parties shall notify the other as soon as practicable in the event that the children or either of them suffer any illness, accident that requires medical treatment and shall provide the other party any information relevant to the treatment.
IT IS NOTED that publication of this judgment under the pseudonym Wheden & Wheden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 839 of 2010
| MR WHEDEN |
Applicant
And
| MS WHEDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, [X] aged 11 years, and her younger brother, [Y], 6 years. Their parents are unable to agree as to where the children should live and how much time they should spend with each of their parents. The children currently live with their father in what was the former matrimonial home in [W], a country town about 470 kilometres west of Sydney. The children’s mother lives in Sydney, the place to which she relocated on separation in January/February this year. In short, the father proposes that the children remain living with him in [W], and the mother proposes that the children live with her in Sydney.
Background
The father is the applicant in these proceedings. He is 46 years old and is a self-employed [omitted]. The respondent, in this case, is the mother. She is 39 years old and is currently undertaking a course of training in Sydney that will lead her to become qualified as a [omitted].
When the parents met in [W] in 1994, they were both living there. They commenced cohabitation and then married in September 2000. The mother had a daughter from a previous relationship, Ms M, who is currently 20 years old. Ms M lived with her mother and the father in these proceedings for a considerable part of her youth. [X] was born in 1999, and [Y] in 2004. The overall impression formed by the evidence is that the marriage and family life was happy, and the husband’s business flourished for many years. Tensions and difficulties within the marriage seem to have started in 2008 or 2009. The mother went back to work locally in [W] from 2008 or 2009 and then in June 2009 commenced the current training that she is undertaking as a [occupation omitted]. This course is conducted from [suburb omitted]. To facilitate the mother’s participation in this course, the mother and father rented a home unit for the mother close to where the course was conducted. From June 2009 to the date of separation in January 2010, for the most part the mother was away from [W] and either travelling to or from, or studying in Sydney from Tuesday mornings until late on Friday nights. It is common ground between the parties that, as from the commencement of this period, the father was, at the very least, an equal care provider for the children or was their primary carer.
In December 2009/January 2010, the family went on holidays to the Gold Coast including a visit to the mother’s daughter, Ms M. The mother, father and [Y] returned to [W] on 4 January but [X] remained with Ms M and her boyfriend, Mr W on the Gold Coast. On or about
6 January 2010, the mother and [Y] went to stay with a friend of the mother’s on the south coast and, a few days later, the mother announced to the father that the relationship was over and that she did not intend to return to [W].
Later in January, the mother informed the father that she had found a school for the children in Sydney, and that Ms M and Mr W were coming to live with her in Sydney. There is no real doubt that the mother’s decision to retain the children in Sydney was a unilateral one.
The period January/February 2010 was a tumultuous one for this family. It is quite clear to the Court that things were said and done by each of the mother and father that, with hindsight, they regret and consider to have been inappropriate from the children’s perspective. The communication between them at this time was fraught with emotion. When the children were in the mother’s care, she did not do enough to facilitate them having contact and communication with their father. When [Y] came into his father’s care towards the end of January, he did not do enough to facilitate contact and communication between [Y] and his mother, and his sister, [X]. There was often open hostility between the mother and the father, and it is clear from all of the evidence that both failed to adequately protect their children from this conflict. In February, [Y] commenced school in [W], whereas his sister, [X] commenced school in [suburb omitted] in Sydney.
On 24 February 2010, I made certain orders by consent which provided for the children to live with the father, in effect, in [W], but to live with the mother in Sydney on each alternate weekend, on special occasions, and at other times if the mother returned to [W]. Orders were made for telephone communication, in respect of travel arrangements, and for the preparation of a family report. Certain interim orders were made by way of property settlement, but the final determination of section 79 claims awaits the outcome of these proceedings.
The father’s proposal is contained in a minute of order which is reproduced in the first schedule to these reasons. He proposes that the children remain living with him in [W] and that the amount of time that they spend with their mother is dependent on whether she lives within 50 kilometres of [W], whether she lives within 200 kilometres of [W], or whether she remains living in Sydney. In the first scenario, he proposes an equal time arrangement. In the second scenario, he proposes each alternate weekend and on the third scenario two weekends per month. In each case, he sets out proposals for special occasions and school holidays.
The mother’s proposal is contained in a minute of order which is also reproduced in the schedule to these reasons. She proposes that the children live with her in Sydney and spend time and communicate with the father on one weekend each month, as well as during school holiday periods and on special occasions.
To the extent that either parent varied their proposals during the course of giving evidence, I discuss the same in an appropriate context below.
The father’s evidence consisted of his affidavit, that of his mother,
Ms W and an affidavit from Ms B, the school principal of the school where the children attend. Neither Ms W, nor Ms B were required for cross-examination. The mother’s evidence consisted of affidavits by herself, her daughter Ms M, Mr W who is Ms M’s fiancé, Ms E, a friend of the mother’s, Ms C, another friend of the mother’s, Ms R, the maternal grandmother of the children. Each were cross-examined. The other important evidence in this case is contained in the family report prepared by regulation 7 family consultant, Ms S, dated 11 June 2010. Ms S was extensively cross-examined in the hearing.
The obvious issue, in this case, is making an order which is in the best interests of [X] and [Y]. I will consider this by reference to the relevant primary and additional considerations set out in section 60CC of the Family Law Act. As the parents both agree that I should make an order for equal shared parental responsibility, I will need to consider equal time or substantial and significant time. One of the issues in this case is the weight that should be given to the family report. I propose to deal with the family report and the family consultant’s oral evidence, before then considering the other evidence.
Applicable Law
The orders sought are governed by Part VII of the Act. The objects and principles underlying Part VII are set out in ss.60B(1) and (2):
(1) The objects of this Part are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
e)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
f)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
g)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
h)parents should agree about the future parenting of their children; and
i)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The child’s best interests are paramount: s.60CA. How a child’s best interests are determined is set out in s.60CC. I must consider these matters. There are primary considerations set out in s.60CC(2):
(2) The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are additional considerations set out in s.60CC(3):
(3) Additional considerations are:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
m)any other fact or circumstance that the court thinks is relevant.
As I am required to make a parenting order, a presumption of equal shared parental responsibility applies, subject to the terms of s.61DA:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
b)family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Weight to be given to the Family Report
In the recent Full Court decision reported as Friscioni & Friscioni [2010] FamCAFC 108, the Full Court reconsiders what is the relevant law as to what weight ought to be attributed to a family report. The relevant section is contained at paragraphs 95 – 98 of the reasons for judgment in that case:-
95. In this case the trial Judge had before her a large amount of written and oral evidence and also had the opportunity to observe the parties and various witnesses being cross-examined. The evidence before her Honour included what was in the family report prepared pursuant to s 62G of the Act by a Family Consultant. In the family report the Family Consultant expressed an opinion, as she was entitled to, on the ultimate issue, namely, what proposal would be in the best interests of the child: see s 80 of the Evidence Act 1995 (Cth).
96. Although the Family Consultant was an expert appointed by the Court to prepare a family report she was not in a privileged position and was required to give her evidence in the ordinary way. As Gibbs CJ observed in Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 348: “In the performance of this function the court counsellor becomes a potential witness - a court appointed witness who is perhaps in some respects analogous to an expert witness - but is not part of the court”: See also BBT and JMT (1980) FLC 90-809 per Wood J.
97. In Hall and Hall (1979) FLC 90-713 the Full Court (Evatt CJ, Asche SJ and Hogan J) said at 78,819:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood FLC 90-098 at p. 75,447; Harris and Harris FLC 90-276; (1977) 29 F.L.R. 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation. We draw attention to an article by Mrs.A. Marshall, Director of Court Counselling Sydney Registry — “Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia”. The article appears in the March 1977 edition of Australian Social Work, vol. 30 No. 1, p. 9 and at p. 11 appears the passage:
“Family Law reg. 117 provides for the cross-examination of a counsellor in relation to the Report. It is seen as an advantage by counsellors that they can in this way be held accountable for the Report”.
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied. In the case of Harris (supra) Fogarty J. said at FLC p. 76,474; F.L.R. p. 289:
“It is in my view inimical to the proper workings of the Court and in particular to the proper carrying out of the functions of a welfare officer that it might be thought by practitioners or litigants that welfare officers or their reports occupy some special or privileged position before the Court unchallenged or unchallengeable but yet perhaps decisive of the issue. Custodial proceedings still basically fall to be determined by the Court in accordance with the traditional system of determining cases. Where a welfare report is delivered which contains either factual matters or matters of opinion which a party desires to challenge but is not permitted to do so that party may be pardoned for feeling that justice has not been seen to be done.”
Similarly, in M. and M.(1978) FLC 90-429 at p. 77,182; (1978) 30 F.L.R. (Notes) at p. 562, Marshall S.J., in adopting the views of Fogarty J. set out above, stated:
“If the contents of such a report are not open to challenge by cross-examination the Court would leave itself open to the criticism of conducting a trial `by report' rather than on the whole of the evidence.”
This Court is in full agreement with the views set out above.
98. Although the Act has been significantly amended since 1979, what the Full Court said in Hall and Hall remains apposite to the situation before the trial Judge in this case: see also D & P [2006] FamCA 170 (unreported, Finn, Holden & Boland JJ, 22 March 2006) and Andrew & Delaine [2009] FamCAFC 182 (unreported, May, Boland & Strickland JJ, 6 October 2009).
Family Report
The family report prepared by Ms S, dated 11 June 2010, was prepared on the basis of interviews and formal assessments conducted on
18 May 2010. In her oral evidence, the family consultant conceded that she was under considerable time pressures on the day of the interviews and that far more people had attended than she had originally contemplated. She only had a fixed period of time to conduct the interviews and the assessments. She agreed that her observations were brief. She was not able to speak to all members of the households. She agreed that, even though there were opportunities to make follow-up telephone calls, this did not take place. The family consultant accepted that the context in which the interviews and assessments took place was an emotionally difficult environment which she herself described, in part, as being distressing, certainly from the perspective of the children and other participants. My comments should not, in any way, be regarded as a criticism of the family consultant but, in the context of the case where there is a real challenge to the report recommendations, and the weight that ought to be given to those and other aspects of the report, it is important to set out this context.
I reproduce below some of the relevant paragraphs from the report. I commence with paragraphs 5.25 – 5.26:-
5.25 When I saw Mr Wheden briefly with the children, [X] was very upset. Mr Wheden comforted her saying “It’s a very tough time for us, isn’t it mate?” Mr Wheden told his sobbing daughter that he understood she was missing her mother and said to her “You know I love you babe”. [X] continued to sob. [X] told her father she wanted more time with her mother. After the children left I asked Mr Wheden how he felt about separating the children and he said that while he had considered the idea he did not favour it. He discounted the idea of reaching a negotiated solution saying his wife would not negotiate.
5.26 Mr Wheden commented that as a prepubescent girl, [X] needed her mother. He said he had looked at this in the light of what was best for the children. However if [X] went to reside with her mother he pointed out that her mother was unemployed and had no carers to look after [X] if she got a job. Mr Wheden again referred to his wife’s drinking problem. While he recognized [X] really missed her mother, Mr Wheden said I needed to understand that [X] was “a really worrying and caring girl”. He said she had a problem wetting the bed but had not wet it since her mother left. Mr Wheden believed [X] was worrying about her mother and what she had done to the family. He commented [X] did not have to worry about her father “He’s a rock. He’s always been there”.
I find it significant that [X] was able to tell her father, in the presence of the family consultant, that she wanted to spend more time with her mother. This suggests that she felt safe enough in terms of her relationship with her father to be able to say this, particularly in a context where she was being observed. This provides some reassurance, not only about the nature of [X]’s relationship with her father, but also about the environment that exists in the father’s household, such that [X] was confident and open enough to make this comment. What also becomes quite apparent from the rest of the evidence in this case is that [X] does miss her mother, would like to see her more, and is by nature an anxious girl.
Another important section of the report is at paragraphs 10.1 - 10.11:-
10.1 [X] told me she had to come to see me about her mother and father. Tearfully [X] told me “I want to live with Mummy”. She became very upset and said “I go to school and everyone gets to see their Mum but I don’t get to see my Mum every day”. [X] told me she was upset when her parents separated but did not know why this had happened. She said “I miss Mum lots and lots”. Crying, [X] said it would be better if she could live with her mother because she would get to see her every day.
10.2 [X] told me she had been worrying about what was to happen. She said she got on well with her father but tearfully again said “It’s different because I’m used to seeing mum every day”. [X] said she had spoken to her mother that morning and generally spoke to her every morning and every night.
10.3 If she lived with her mother, [X] said she would miss her father but “not as much as I miss Mum”. [X] said her father knew how much she was missing her mother. [X] said got on well with her grandparents.
10.4 [X] was in Year 5 at school. She told me she was sad at school because she was missing her mother. [X] also said that she had no friends at school as her friends had left. She had seen her friend [name omitted] for a sleepover at her mother’s the previous weekend. [X] told me she like practising the piano.
10.5 [X] was beautifully dressed in a skirt from Paris that her cousin had given to her. In Sydney her half-sister, Ms M and her boyfriend lived with their mother. [X] liked seeing them.
10.6 When her mother came into the room [X] became very upset.
Ms Wheden commented “She was living with me and wanted to stay with me”. In February however the court ordered that [X] had to live with her father because there was more room in the house and she could return to her old school. [X] sobbed that she wanted to live with her mother and her mother comforted her appropriately. [X] saw her mother the weekend before last, some ten days ago. [X] cuddled into her mother.
10.7 [X]’s test results at Attachment 3 indicated that her primary attachment was to her mother. She scored in the normal range on a common measure of children’s anxiety.
10.8 [Y] said he had no idea why he was to see me. A quiet little boy, he said he had been upset when his parents separated. [Y] told me that he was not always quiet. Sadly he said he missed his mother and saw her at weekends. [Y] had seen his mother in the distance on the day of interview and I gathered she was waiting outside. [Y] told me he wanted to live with his father because “I want to”. He said he enjoyed his motorbike racing at his father’s and also liked going to his grandparents. He told me he wanted to see his mother every weekend but acknowledged he got tired with all the travel and volunteered he became car sick.
10.9 [Y] wished his parents were still together and sadly said he got upset about it all. When he became upset, [Y] said he talked to his mother on the telephone. He said they spoke every night. [Y] told me that his half sister Ms M and her boyfriend as well as two cats and a dog lived at his mother’s in Sydney. [Y] also had a dog and a cat at his father’s house. [Y] said his grandparents used to have about seven chooks but a fox got some of them.
10.10 [Y] attended [W] School and was in Year 1. He had friends at school. [Y] relaxed a little when we chatted about his grandparents’ farm and the calves there. If his father punished him [Y] said that he sent him to his bedroom. [Y] said this did not happen very often.
10.11 [Y]’s test results at Attachment 4 indicated that his primary positive attachment was to his mother. His feelings about his father were more ambivalent. [Y] demonstrated a normal degree of sibling rivalry towards his sister. [Y]’s score on a common measure of children’s anxiety was in the normal range.
This is an important passage in the mother’s case. It is relied on to support the assertion that [X] has expressed a view about living with her mother. The poignancy of the passage also demonstrates the difficult emotional environment in which this family has lived for most of this year, and in which the family report interviews were conducted. As will be seen, however, [X]’s comments that she had no friends at school is somewhat mystifying in the face of clear evidence from her school Principal to the contrary. I accept the evidence, however, that [X]’s primary attachment was with her mother and I think even on the father’s case there was no real challenge to this.
It is also apparent that [Y] misses his mother and expresses a view to remain with his father. He struggles with the travel associated with contact. In cross-examination the family consultant conceded that her conclusion that [Y]’s primary positive attachment was to his mother was based entirely on the results of tests administered on the day, and not on observations, or a broader perspective of the evidence.
The family consultant comments about the children’s views at paragraphs 11.1.1 - 11.1.3:-
11.1.1 [X] unequivocally wanted to live with her mother. Her desperation and distress about this was upsetting to witness. At her age, [X] had a clear understanding of what she wanted and was certainly mature enough to express her wishes. With the approach of adolescence her mother’s role in her life will be increasingly important. [X] did not say anything negative about her father and directed only one negative item to her father in her test responses (“This person in my family is often cross and grumpy”). She related to both parents in an affectionate manner when seen with them but was very clingy to her mother when she had to say goodbye.
11.1.2 [Y] was only six and impressed as a quiet, rather sad little boy. While he professed to want to live with his father so he could ride his motorbike, [Y]’s primary attachment from his test results appeared to be with his mother and he also clung to her at the end of the interviews. He also directed an item to his father describing him as sometimes cross and grumpy and that he punished him too often. This latter sentiment probably reflected his father’s role as his current primary carer.
11.1.3 Given his age and low mood, little weight should be placed on [Y]’s stated wish. He did not demonstrate an ability to understand the ramifications of this.
There is a real issue in this case about the weight that should be given to the child’s views, having regard to the many other primary and additional considerations that must be taken into account in making a decision about what is in the best interests of the children.
The family consultant observed at paragraph 11.2.1 of her report that no concerns were expressed about the quality of the children’s relationships with any of the key adults in their lives, and none were evident to her. I agree that, having regard to all of the evidence before the court, there are no issues about the quality of the relationships the children enjoy with each of the significant adults in their lives.
At 11.4 the family consultant makes the following comments about the likely effect of changes to the children’s circumstances:-
A change for [X] to residing with her mother would accord with her wishes and hopefully reduce her distress. Her father’s reaction will, of course, be important in her overall adjustment to the inevitable separation from him. [Y] is a much loved little boy. If he moves to his mother’s I expect he will adapt with the usual resilience shown by children in such circumstances. Again his father’s reaction will be integral to his adjustment. In the event the children move to their mother’s, her ability to promote their father in a positive light will be important.
As I will discuss in further detail, I believe the family consultant has perhaps minimised the impact of change on these children if they were to live with their mother in Sydney, and she has failed to appreciate some of the difficulties in the mother’s household in terms of promotion of their father’s role in their lives.
On matters of practical difficulty and expense, the family consultant makes these comments at 11.5.1:-
11.5.1 The distance between these parties is a significant one and I understand that it involves a round trip of some 10 hours. In my opinion this is too far for the children to travel every second weekend and Mr Wheden and his mother have already noted how tired the children are after their current trips. It would be better if contact to whichever parent is not the primary carer took place monthly and where possible incorporated long weekends as well as school holidays
I agree with these observations. The evidence in this case clearly demonstrates that the children are struggling with all the travel. No doubt the parents are struggling too. The current frequency is each alternative weekend, and hence, I must seriously consider the proposal of the mother, supported in the recommendation by the family consultant, of reducing contact to monthly, or exploring the father’s idea in his oral evidence about making contact every third weekend.
At paragraph 11.6.1 the family consultant expresses no concerns about the capacity of the adults involved to meet the children’s emotional and intellectual needs, although she believes that [X] is more dependent on her mother than the father for this. As it turns out, the evidence is consistent with what the family consultant observes. However, I need to take into account the capacity of the parents to provide for all of the needs of the children and not just their emotional and intellectual needs. As it turns out, the evidence does raise issues about the mother’s capacity to provide for the children’s physical needs. Whilst this is not a determinative consideration, and must be considered in the overall context of the evidence in this case, it nonetheless becomes a significant concern in my mind.
The family consultant recognises at 11.8.1 and 11.8.2 that there are no issues in this case about the children being at risk of harm whilst in the care of either parent. I agree that the evidence is consistent with this. She refers to the allegations made about the mother’s consumption of alcohol. Whilst this is an issue in this case, I think it is best dealt with in the context of parental capacity, and parental attitudes, rather than raising direct issues of risk of harm.
On the consideration of attitudes to the children and to the responsibilities of parenthood, the family consultant certainly confirms my observation that these children are well loved by their parents. Their motivation for wanting to assume primary responsibility for their care cannot be questioned. The family consultant believed that the mother was perhaps more self reliant in this regard, and the father had suitable supports in place.
At paragraph 11.10.1 the family consultant makes the following statement about the willingness of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent: –
11.
10.1 It is always problematic to draw conclusions about parties’ future behaviour from their behaviour around the time of separation. At such a time emotions are running high and people often behave badly. Allegedly Mr Wheden did not promote Ms Wheden’s relationship with the children at this time. However he appeared to recognise the importance of
Ms Wheden’s role in their children’s lives now. Both parties recognise the importance of the children’s extended family.
I have already made the observation that the period immediately after separation was a stressful, difficult, emotional time for this family. It would not be appropriate to draw final conclusions based on a limited period in the lives of these parents. There is other evidence before the court, not available to the family consultant, that raises issues about this consideration, and this will be dealt with below.
At paragraphs 11.13.1 – 11.13.9 there is a very useful discussion as to the available options:-
11.13.1 These are much loved children. Sadly their parents’ marriage has failed and both parents have now to cope with the inevitable difficulties associated with ending their relatively long relationship. Mr Wheden hoped to retain his home and business and Ms Wheden has decided to relocate to Sydney.
11.13.2 Four options present themselves for the children. The first option would be that Ms Wheden returned to [W] and the parties embarked on a shared arrangement allowing the children to see them both regularly and frequently. The second viable option is for both children to remain with their father in [W] with monthly and holiday contact with their mother. The third option is for both children to move to Sydney with their mother with contact monthly and for holidays with their father while the fourth option would be to separate the children, so that [X] resided with her mother in Sydney and [Y] remained in [W] with his father.
11.13.3 It would obviously be easier for the children if Ms Wheden felt able to reside elsewhere in [W]. If she moved back the children could remain at their current school and maintain their close relationships with both parents as well as with their paternal grandparents and Ms Wheden’s father and his partner. Grandparents are very important to children at times of family stress and all the grandparents in this family have been very involved and concerned lining up now to support their own children against each other in this dispute. To his credit, Mr H tried to remain neutral and child focussed.
11.13.4 It was evident that the parties were having marital problems prior to Ms Wheden’s commencing her course in Sydney. I suspect this move led to her being attracted to a different way of life and that her wish to remain there perhaps involves a fledging relationship with another man. I am not convinced that Ms Wheden is putting her children’s needs before her own by establishing a home in Sydney. Her anxiety about the denigration she would face in a small town was understandable, and reinforced by my interview with the paternal grandparents who said they had relations all over [W]. However in a relatively short time, I suspect local people would soon lose interest. Mr and Ms Wheden’s separation is not unique or unusual.
11.13.5 The second option of the children remaining with their father would represent the least disruptive current alternative but would mean the children continued to miss their mother. While Mr Wheden impressed as a concerned, caring father until the last year, by virtue of the parties’ marital arrangements, he was necessarily more work than home oriented. It was very sad (and not uncommon) that after setting up a successful business, he found his marriage was under stress.
11.13.6 Both children were very distressed at the end of the interviews when they had to say goodbye to their mother. They clung to their mother and grandmother in the street. Ms Wheden’s mother did not help by prolonging cuddling [X] when it might have been better just to leave. Mr Wheden and his cousin were very solicitous with providing coats for the children and
Mr Wheden appeared genuinely upset while observing the children’s distress. I had asked Mr Wheden to leave with the children as soon as their interviews and observations were completed but he had declined to do so. I suspect he wanted to oversee the remaining report process.
11.13.7 I have no doubt that Mr Wheden would continue to care for the children in a competent, caring manner with family support if they remain with him. The only disadvantage to this is that the children, particularly [X] will continue to be distressed by the separation from their mother.
11.13.8 Regarding the third option, I have some concerns regarding how
Ms Wheden will manage financially in Sydney and cope with the demands of working full-time while caring for two unsettled children. This will not be easy for her and the children might have to accept a more restricted lifestyle if they live with her. It is to be hoped Mr Wheden would honour his child support commitment in the event the children lived with their mother.
11.13.9 Given the difference in the children’s ages and sexes and the disparity in their stated wishes, the fourth option would be to separate them. Indeed apparently Mr Wheden had previously suggested that [Y] remain with him and [X] live with her mother. Neither parent favoured separating the children now. However the sibling relationship is an important one for children and separating children not a desirable resolution. To do so would only adversely impact on [X]’s self esteem in that she might consider her father preferred her brother over her.
I found this discussion to be very insightful, and helpful. These comments lead on to the recommendation made by Ms S at paragraphs 12.1 – 12.3. She commences her comments by recognising that “a definitive recommendation in this matter is problematic in view of the distance involved.” She then goes on to say:-
12.1 Making a definitive recommendation in this matter is problematic in view of the distance involved. Until 12 months ago, Ms Wheden was the primary carer for these children. She and her husband made a joint decision for her to study in Sydney in the context of relationship problems and her wish to enhance her employment opportunities. While I have no doubt that Mr Wheden could care for the children very adequately, [X]’s distress in my opinion will only be satisfactorily resolved by allowing her to reside with her mother. Although the option of [Y] remaining with his father could possibly be contemplated it would not be my preferred option. [Y] can hopefully pursue his motorbike and outdoor interests with his father and grandparents at weekends or in the holidays. Perhaps extra contact periods could be contemplated informally between the parties to allow him to go to competitions. As he is only 6, this is probably not critical as yet.
12.2 I recommend that the children reside with their mother.
12.3 I recommend that Mr Wheden have at least monthly and half holiday contact in [W].
It is clear from the report, and from the family consultant’s oral evidence that she was quite concerned that the only way to alleviate [X]’s distress was for her to live with her mother. This is a matter that requires further consideration. It is also clear that she does not favour [X] and [Y] being separated. The parents accept this. I accept this. Even if the parents had considered this as an option during an earlier stage of the proceedings, I am satisfied that they no longer do so.
Ms S gave oral evidence and was skilfully cross-examined by counsel for both the mother and the father. As foreshadowed in my comments above, the family consultant had only set aside three hours for the assessment and the observation of the children with their parents was measured in terms of minutes.
During the course of the evidence, both the children reported their father saying rather disparaging things about the mother and/or the children. These comments were hotly disputed by the father, and indeed, after hearing all the evidence about what the children are reported to have said, I formed a strong impression that even if the children did say the matters asserted, the reports were unreliable in the sense of not necessarily representing the truth. In the present context, however, these matters were put to the family consultant who expressed clear surprise. When asked to comment on why the children might be making these comments, irrespective of their truth or otherwise, the family consultant gave evidence of a number of possibilities. One possibility was that, for example in the case of [X], she was keen to promote her desire to be with her mother. I was surprised, however, by the family consultant’s reluctance to acknowledge another possibility as to why these children might have made comments and that is that the circumstances of their parents’ separation, and subsequent litigation, was clearly distressing for them, that they would be likely to feel caught in the middle of the parental conflict, and that this might also provide a hypotheses for such comments.
I was also surprised by the family consultant’s reluctance to accept the scenario presented in the following extract from her cross-examination:
Okay. If the children are told by their mother when they say, “We’d like to spend more time with you, mum”. If the children are told by their mother, “If I do not take you back to your father, I’ll be sent to prison”. How is that likely to impact on the children’s distress?---I think the children would be – were distressed anyway at the time, from what you – in your hypothesis. And it’s a ---
This is not a hypothesis any longer, Ms S?---Sorry. And it’s a way of explain – lending weight to the children why she has to take them back. Yes, I think it would probably distress the children further.
The children would interpret a comment like that very literally, would they not?---Yes.
And that would be an exceptionally scary thing for the children, would it not?---It would be distressing for the children, as I’ve just said, yes.
No, no. Exceptionally distressing, I’m putting to you, to imagine their mother in prison?---Yes.
And it’s entirely inappropriate for the mother to say that. Would you not agree?---Yes.
And would you anticipate that if that comment was made to the children by the mother, which it clearly was, that the children would be likely to feel that their father was somehow behind it or responsible for that threat to their mother?---I’m not sure. I haven’t talk to the children about this. I don’t know what – I wouldn’t go as far as that, no.
Well, tell me, you’re a psychologist, aren’t you? Correct?---Yes, I’m a clinical psychologist.
Yes. And what would the children be thinking, in your view, and how would it be impacting on their relationship with their mother and their father to hear this stuff?---You’d just ask me if they’d blame the father. That’s the part that I’m answering that I don’t know, if they’d be blaming the father. I think they could blame the system and they could blame the judge. They could blame the circumstances they were in.
You think they’re sophisticated enough to blame the system?---Possibly the judge. I think they know about court, yes. I’m just not agreeing with you that they would solely blame the father for that.
With great respect to the family consultant, but I would have thought that the most logical outcome of the children’s self-evident distress about what the mother had said to them was that they were likely to blame their father. Her reluctance to accept this was quite frankly not convincing. These are not matters of expert evidence, these are matters of common sense and experience.
Later in her cross-examination the family consultant clearly indicates that she saw no evidence of the father favouring [Y] over [X]. There was an assertion about this in the mother’s case, but it is unsupported by the evidence, which clearly supports the family consultant’s observations in this regard.
The family consultant was cross-examined about why [X], who she clearly agreed was an anxious child, would stop bedwetting at about the same time as separation. The relevant extract from the transcript is at page 50, lines 1-42:
And [X] is a child who is a worrier?---Yes.
And an anxious child, I think the parents have reported, haven’t they?---Yes. Though, interestingly, her score on the anxiety scale wasn’t elevated so that was of interest.
That’s perhaps inconsistent with this level of distress that has been reported, particularly by the mother?---Yes.
Do children who wet the bed – is that normally related to anxiety and distress or are there a multitude of reasons why that could happen?---It has a strong genetic component as well. So – and I don’t know the family history in terms of that. So it could be genetic or anxiety.
Would you expect that if [X] has a predisposition to bedwetting, that this separation from her mother over the last six months would exacerbate that?---It may or it may not. I mean, children show their stress in different ways.
If it was the evidence that [X] was wetting her bed up until the end of 2009 but has not wet her bed in 2010, would that surprise you to hear that?---No.
Not at all?---Not at all. She may well have just grown out of it as would be expected.
Right. But it is inconsistent to some – that’s one hypothesis, isn’t it? You used the word “may. She may have grown out of it.” It may be that---?---Well, it would appear she has grown out of it if she’s no longer wetting the bed, yes.
Well, perhaps I will ask the question, Ms S, and then you can answer it?---Sorry.
The reason advanced by, at least, the mother was that she was privy to her parents’ arguments and hostility leading up to the separation and that was causing her bedwetting, in her mother’s view. Can you accept that for me for a moment?---Yes.
Okay. So her mother seems to think that the bedwetting was related to anxiety and stress. If it was – and there’s no medical evidence about this – it would be unlikely to stop when the child is extremely distressed over the last six months, would it not?---As I have just said, she may well have grown out of it.
Or she may not be as distressed?---Or she may not be as distressed, if distress was behind it. But I don’t know about the family history of bedwetting sufficiently to draw a conclusion about that.
Again, I find the family consultant’s reluctance to embrace an alternate hypothesis somewhat mystifying. The evidence indicates that [X] had a predisposition to bedwetting in the months prior to separation, but that stopped after separation. Given that even the mother seemed to link the bedwetting to anxiety and stress, I was somewhat surprised that the family consultant would not even contemplate the possibility that the cessation of bedwetting might be related to a reduction in anxiety and stress.
Despite my criticism of the family consultant, she was prepared to make other sensible concessions. Clearly, she had concerns about how the mother will manage financially in Sydney. Clearly, she had some reservations about the reasons for the mother remaining in Sydney. She was, clearly, surprised that the mother had made no efforts to contact the children’s school in [W] during the course of the separation. She agreed that, even if children express views that they should not automatically be accorded weight. In this context, she agreed that one would have to be sure that a child had not been exposed to an emotional environment that might produce a comment from the child that was distorted. In this regard, there is an insightful passage from the transcript of the family consultant’s cross-examination commencing at page 63 line 4 – page 64 line 37:
---or coached. Nor do you have to – you have to make sure that the child has not been exposed to an emotional environment that might produce a comment from the child that is actually a distorted comment?---That would be a factor, yes.
Would you say that in this particular case, Ms S, given the six months of turmoil that you’ve agreed the parents were undertaking or undergoing, and [X]’s desperate missing of her mother who was several hours away, that you could not describe her environment as a settled emotional environment from which she was making this – expressing this wish?---No.
In fact, the observation you made of her throughout the day was that she was a very upset little girl?---Yes.
For you to be very confident about placing, perhaps, decisive weight on this wish that has been expressed in this matter, you would want to be confident that [X] had not been, perhaps, enlisted by either camp in this dispute or, sort of, spoken to in a conspiratorial way about the other parent?---Yes.
In fact, if that had happened, that would be a matter that you would want to know about in assessing the weight to be attached to the wish?---Yes.
So that, for example, if – when in one person’s household, there was comments that – say, for example, between Ms M and [X] that they developed a code between each other to – which was a code word that when [X] was on the phone to Ms M, if her dad came into the room and listened to the call, there was a code word that the two would use with each other to signify that the father was listening. That’s – did you read that in the affidavit of Ms M? You might have just skimmed across it because you’ve read a lot?---I don’t believe that I have read---
Okay. Did you understand the concept of what I’m putting to you, so---? I’m not sure what you’re asking me. No, I wasn’t quite sure.
No, but do you understand what I’m putting, that [X] and Ms M are on the phone---?---Yes.
---and they have got a code between them that if dad comes into the room where [X] is, that [X] will say this code word and that signifies that dad’s there and dad’s listening?---Yes.
Now, what’s your comment about that kind of arrangement in terms of what it means for the child’s attitude to her father?---I think it’s in the early separation period and I think it’s perhaps---
Well, can I stop you---?---saying a fair bit about Ms M---
It’s not clear that it’s early separation?---I thought it was just – I’m still calling now early---
Sorry---?---It’s still fairly early.
Okay, yes, go ahead, sorry?---Yes, in my mind.
I’m sorry, Ms S, for butting in?---Yes, I still think it’s fairly recent in this case. So – and I think it – well, it reflects on the relationship between the children and the relationship between Ms M and her stepfather.
And her father – sorry, Ms M and her stepfather?---Stepfather, yes.
But isn’t it sending a message to [X] from Ms M that, “Look, you are on our team here. If your dad, the bad guy, involves himself in this conversation, then you should send me a signal. A secret code word”?---Yes, I’m not sure why – why would the dad be – why he was listening into the conversation if it’s a private conversation between the two---
Okay, but I’m not asking about that, Ms S---?---sisters.
Ms S, I’m asking you about the code word, okay?---Yes, the code word, yes.
And what that signifies in terms of what message is being sent to the child about her father?---I think it’s conveying Ms M’s feelings about her stepfather to [X]. That’s my assessment of it.
No, no, but [X] is saying the word in conjunction with Ms M?---Yes. I thought you were implying under Ms M’s encouragement they have devised a code word so that they can have a private conversation between the two – let’s call them, you know – sisters. It’s a reflection on Ms M’s feelings about her stepfather is what I’m saying.
Does it send a message to [X] about her father?---It sends a message to [X] about Ms M’s feelings about her stepfather, and [X]’s father, yes.
Yes, what message?---That she doesn’t feel positively about him. And that she wants a private conversation with her sister.
On the one hand, from this passage it is obvious that the family consultant was clearly conscious of the risk that [X] had been enlisted by the mother’s camp in terms of expressing a view. I was mystified at the manner in which the family consultant seems to have played down the significance of the code that had been initiated between Ms M and [X], during telephone conversations. Quite frankly, the family consultant may have missed the point. The significance of the code lies not in whether or not there is any truth to the assertion that the father was listening into [X]’s conversations. I must say that my overall impression of the evidence in this case is that it is highly unlikely that the father was, in fact, listening into conversations. Nonetheless, the issue surely was the use of the code, and the message that it sends to [X] about Ms M’s deeply negative feelings towards [X]’s father. Again, to be fair to the family consultant, she was not privy to the other evidence before the Court from Ms M which leads the Court to conclude that Ms M’s relationship with the father is a deeply toxic one. Thus, whilst the family consultant acknowledges in the passage above that Ms M doesn’t feel positive towards the father, what the family consultant doesn’t know is about the depths of the negativity. It is possible that the family consultant was, for example, focused on the mother’s willingness to facilitate an ongoing relationship between the father and the children, but did not appreciate what I find to be a real risk in this case – that the toxicity of Ms M’s relationship with the father, and the fact that Ms M will clearly be a part of the mother’s household, leads to the risk of the father’s relationship with these children being undermined in the mother’s household, but not necessarily by the mother.
At page 67 lines 34 – 38, the following passage appears:
It’s possible, isn’t it, that this little girl, that the relationship she has with
Ms M is part of the motivation for the wish that she is expressing?---It’s possible, but that wasn’t my – what I – my assessment.
No, but you didn’t explore that, though, did you?---I didn’t explore it, and no.
As I have foreshadowed in my comments above, this is a real issue in this case and the family consultant’s lack of opportunity to explore, not just the issue of whether Ms M’s relationship with [X] was, in fact, influencing her views, but the broader impact of Ms M’s toxic relationship with the father in terms of the household environment in which the children would live, creates a real gap in the family consultant’s evidence.
In cross examination by counsel for the mother, the family consultant expressed the firm view that [X]’s level of distress would settle quicker if she were to live with her mother, than with her father. She also felt that [X] was expressing the view and understood the ramifications of it.
By way of the conclusions I draw about the family report and the weight that ought to be given to it, I say that it is important evidence but is not conclusive or determinative in its own right. I am very conscious of the very limited time that the family consultant had to prepare the report, and the pressured circumstances in which the interviews and assessment occurred. As will be seen below, I had the opportunity to spend several days with the parents, as opposed to the hours that the family consultant had. I was able to observe them in the witness box and to consider, at length, both their written and oral evidence. I was surprised at the family consultant’s reluctance to embrace an alternate hypothesis. It was almost defensive in nature and was quite unnecessary. I think the family consultant has failed to appreciate, in some respects, the complexity of the triad relationship between the father, [X] and Ms M, and the extent to which this might influence the future in the context of the proposals postulated. Accordingly, I treat with great care the recommendations made and will need to reconsider these in the light of all of the evidence that I discuss below.
Meaningful Relationship
The first of the primary considerations set out in section 60CC(2) is the benefit to the children of having a meaningful relationship with both of the children’s parents. There is ample evidence before me to lead to a finding that both children enjoy a meaningful relationship with both parents. This has survived extended periods of absence by both parents, over the last 12 months. The mother was studying in Sydney for several days and nights of the week during the second half of 2009. The children were separated from each other and from one parent for a substantial part of January and February 2010. The children have been separated from their mother since the consent orders made in February 2010. Despite these absences, there is consensus amongst the parents and the family consultant about the meaningful relationship that exists between all members of this family. This is a credit to the parents who have been able to sustain this relationship and foster it in each other, despite the ups and downs and turmoil of a deeply emotional separation, and then the present proceedings. It also indicates to me that the children are resilient and that a mere absence of a parent does not necessarily undermine the fundamental substratum of meaningful relationship that exists.
Protecting the Children from Harm
The next of the primary considerations is to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. These matters are singularly absent in the evidence, much to the good fortune of these children. I agree with the family consultant, however, that the conflictual separation of the parents, and the mere existence of these proceedings, is a form of risk of harm to the children. One can only trust that, once these proceedings are concluded, and with the passage of time with all its healing qualities, that even this risk might be alleviated.
Children’s Views
The first of the additional considerations referred to section 60CC(3) refers to any views expressed by the children and any factors such as the children’s maturity or level of understanding that the Court thinks are relevant to the weight it should give to the children’s views. In the evidence of both the mother and father and their respective witnesses, there are some statements which purport to represent the views of children about where they should live. I am not prepared to give any weight to these statements. As is apparent from the reading of these reasons so far, this is a highly conflicted and deeply emotional separation for the mother, father and the children. It is plainly unwise to rely on evidence of children’s views given by the parents or their witnesses. Of course, the children have expressed views to the family consultant, and these views have been recorded and discussed above. Even the family consultant discounts the views expressed by [Y] because of his maturity. I completely concur in this regard. The situation in relation to [X] is more problematic and complex, and the reasons for this have been foreshadowed in my discussion of this topic in the context of the family consultant’s evidence. Whilst I accept that [X] has expressed a view about living with her mother, I have already expressed concerns about the weight that I should give to her views, in the broader context of this case. At a very basic level, even the family consultant acknowledges that whatever views [X] has expressed will not be determinative of its own. That is unquestioningly correct. I have already expressed concerns about the weight that ought to be given to these views, having regard to a number of other factors, and, in particular, what I have described as the complex triadic relationship between the father, Ms M and [X].
Counsel for the father’s submission was that in the mother’s household, consisting of the mother, her daughter Ms M, and her daughter’s fiancé Mr W, there was a complete lack of respect for the father. Counsel was able to establish this on the evidence in a number of ways. Ms M admitted in cross-examination that she was driving a car provided to her by the father, through his company, and which was, clearly, still registered in the father’s company’s name. She admitted, in cross-examination, that more than 50 times since she had been in Sydney she had driven through toll gates without paying the toll. She said, “I’ve driven through the e-tags .. because that’s the way that it takes me to work and you can’t stop to pay through the cross-city tunnel.” At page seven lines 4 – 19, the following exchange took place in cross-examination:
You haven’t gone and got yourself an e-TAG, have you?---Not yet, no. I went to do that last week but---
No, so it would be more than 50 times this year you have done that?---Yes.
How many times would you say it had been?---I’m not sure.
And what happens when you drive through an e-TAG without paying?---I think you get a fine.
Right, and have you been receiving those fines?---No.
Well, who has?---Mr Wheden.
Why didn’t you get yourself an e-TAG? Because I wasn’t aware that he’d received fines until a few months after he’s already received them when he’s sent them.
Ms M’s actions are breathtakingly audacious. It provides an insight into her character and the nature of the relationship that she has with the father in these proceedings who, it should be noted, was her psychological father for most of her life, and who provided the very car that she was driving in.
Commencing from page 9 at line 18, through to page 10 at line 38 , the following is recorded in the transcript:-
Thank you. Now, you have a secret code with [X], don’t you, when you talk to her on the telephone?‑‑‑I did, yes.
What do you mean, you did?‑‑‑I don’t ‑ ‑ ‑
When did you stop doing it?‑‑‑After I put in my affidavits.
Right, and why did you stop doing it?‑‑‑Because [Mr Wheden] gets my affidavit so he would know.
So that a secret code had been decoded by your affidavits?‑‑‑Yes.
You haven’t got a new code?‑‑‑No.
Paragraph 25 of the witness’s affidavit. So you arranged with [X] that if her father was nearby while you were talking to her‑ ‑ ‑?‑‑‑Was listening, yes.
‑ ‑ ‑ she was to say the word “bubbles”?‑‑‑Yes.
And that was to make you aware that her father was in the vicinity of the phone call?‑‑‑Was listening to the phone call, yes.
Yes, okay, and when did you set this up with [X]?‑‑‑I believe it was at mediation.
At mediation?‑‑‑Yes.
What, when you were down there with Ms S?‑‑‑Yes.
In [town omitted]?‑‑‑Yes.
What, you had a private chat with [X] that day, did you?‑‑‑Well, yeah, we were sitting in the waiting room.
Yes. At what stage of the day; morning or afternoon?‑‑‑I’m not sure.
Tell his Honour carefully exactly what conversation you had with [X] at [town omitted] to set up this secret code?‑‑‑Okay. I asked her why when I spoke to her she was so‑ ‑ ‑
Use the words you used and the words that [X] used please?‑‑‑Yeah, I am. I asked her why she was so bottled up when I spoke to her and why she barely spoke on the phone. She said because a lot of the time that Ms T or
Mr Wheden were nearby listening to her conversation and she didn’t want to say too much, and I said to her, “Well, if they’re nearby just say the word “bubbles” so we know and I won’t say anything.” I said, “I’ll know that’s why you’re not talking to me,” and she said, “Okay.”
And what were you to do once she said “bubbles”?‑‑‑I just – I knew that that’s why she wasn’t talking to me very much.
And did you feel that this arrangement – you’re an adult, aren’t you?‑‑‑Yes.
Did you feel that this arrangement was a good arrangement for the relationship between [X] and her father?‑‑‑I’m not sure.
Don’t you think that what you’re doing is really getting [X] to take a position against her father?‑‑‑No, I don’t believe so.
Well, she’s really acting in cohorts with you to tell you something that her father is not to know about, isn’t she?‑‑‑Yes.
Did she do this “bubbles” thing on the phone?‑‑‑Yes.
How many times?‑‑‑Twice.
So she would be just having a chat with you and then she would say “bubbles”?‑‑‑No, I’d say – if she wasn’t talking to me I’d say, “Is it bubbles; is that why you’re not talking?” and she’d say yes or no.
The passage provides a number of significant insights about Ms M. Firstly, consistently with other evidence that she gave, she would unequivocally accept the correctness of that which [X] asserts to her. There was no reality testing about what [X] was saying, or a stepping back to consider the broader context of what both [X] and [Y] were going through. Secondly, it demonstrates a real lack of insight in failing to appreciate that her actions were polarising [X] against her father. Thirdly, it again demonstrates the very poor relationship that exists between Ms M and the father in these proceedings.
Another passage demonstrating Ms M’s unequivocal acceptance of what [X] may have said to her is found at pages 18 and 19 of the transcript dealing with the allegation that [X] was smelly at the time of the family report interviews. Another example of Ms M’s negative views about the father is found in her evidence about the father’s attitudes towards people who consume alcohol. For example, at page 21 of the transcript of her cross-examination, she stated the view that the father has a problem with anyone drinking alcohol, that he thinks it’s a crime, but then rapidly changed her evidence when it became obvious from the mother’s evidence that he, that is the father, did not discourage Ms M from drinking in the home, even before she was 18. The significance of this evidence is not as to whether or not it was appropriate for Ms M to drink in the home at a particular age, but rather in the willingness of Ms M to portray the father as someone who had dogmatic, obstinate views about the consumption of alcohol. Yet another example is found at pages 24 – 25 of the transcript of Ms M’s cross-examination. This time, the issue is whether Ms M was prepared to accept the father’s denial of an assertion that he said to [Y] that
Ms M was his cousin, rather than step-sister. In cross-examination, she steadfastly insisted that the father was lying in his denial until confronted with her own mother’s evidence to the effect that it could have been someone else making the assertion.
By way of summary, therefore, the evidence indicates that Ms M and [X] have a very close relationship as siblings, but that Ms M’s relationship with the father is characterised by an intense ill feeling and distrust which does not seem to have any objective basis on matters arising out of the separation, which is before the Court. There is, therefore, a strong likelihood that when [X] is in the presence of Ms M there is a toxic environment about the nature of the relationship between both [X] and Ms M and the father. There is a real risk that this has influenced any views expressed by [X] to the family consultant.
I wish to record here, however, that, even though I have been critical of Ms M, I do not believe that she is acting maliciously, but rather acting with a deep lack of insight that comes from immaturity. Nonetheless, whatever the motives, this is a significant issue in this case.
Nature of Relationships
The focus of this additional consideration is the nature of the relationship of the children with each of their parents, and with other persons including grandparents and other relatives. It, therefore, considers relationships beyond the parents, and even in the context of the parents, invites a more detailed consideration of relationships that goes beyond that required by the first of the primary considerations. In the context of this case, each of the proposals needs to be considered in terms of how relationships are affected.
The first matter that is obvious from the evidence is that these children enjoy a good relationship not only with their parents, but with a significant extended family that includes on the mother’s side her parents, her other daughter Ms M and her fiancé Mr W. On the father’s side, the extended family includes his parents, and his siblings and nieces and nephews. These children appear to enjoy good relationships with all of these people. If they live with the father in [W], they will miss some of the opportunities to develop the relationships with the mother’s extended family. If the children live with the mother in Sydney, they will miss the opportunities to continue to develop the relationships they have with the father’s extended family. Clearly, the evidence indicates that the relationships with the grandparents have suffered since separation, particularly on the paternal side. The tyranny of distance means that relationships that may have, in the past, been characterised by very frequent interactions may have to become relationships characterised by less frequent interactions. On balance, the relationships will, nonetheless, subsist.
Clearly, [X] has a strong relationship with her sister, Ms M. There are aspects of this relationship which cause concern, as I have stated above, but this is, nonetheless, an important relationship and some of the concerns I have may pass with time and maturity.
Insofar as the children have relationships with people other than their mother and father, I am quite satisfied that these relationships will be maintained and sustained over time, whichever proposal I adopt.
The situation in relation to the children’s relationships with their parents is more complex. The family consultant is concerned about how both parents will cope, to a certain extent, if an order is made not reflecting the proposals they advance. The family consultant acknowledges that there will be adjustment issues for the children on each of the scenarios, but particularly if the mother maintains her position that she will not return to [W], or somewhere closer to [W] than Sydney itself. I was left in little doubt, however, that the family consultant thought the best outcome for the children was for the parents to live in reasonable proximity to each other so that the children would continue to have the benefit of relationships with both of them, unhindered by the reduced frequency of contact that comes as a result of distance.
There is obviously a significant concern about how [X] will cope in an emotional sense if I do not order her to live with her mother. I acknowledge this. It is probably the most significant factor that indicates why this is such a difficult case. It is an important consideration that needs to be weighed up against all other considerations of both long term and short term nature. I am comforted by the fact that whatever decision I make, the relationships between the children and parent will continue. As to whether that relationship will be all that it could be in terms of its potential, both quantitative and qualitative, in many ways will depend on the actions of the parents. This is particularly so in the context of the mother. For the reasons that I set out below, I will find that it is both reasonable and understandable for the father to have adopted the position that he cannot move to Sydney. This situation as regards the mother’s reluctance not to move back from Sydney either to [W], or somewhere in the vicinity, is far more problematic. If my decision should be that the children live with their father in [W], then the nature of the impact of this decision on the relationship between the mother and children is very much a matter which is within the control and influence of the mother.
Willingness and Ability to Facilitate and Encourage Relationships
The third of the additional considerations relates to the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. I find it interesting that the drafters of the provision referred to “willingness” and “ability” as two separate and distinct concepts. In many cases, no distinction can be made on the facts. However, on the facts of this case, one distinction that can be made between willingness and ability relates to the extent to which a parent is able to control external negative influences on relationships between the child and the other parent. Thus, on the facts of this case, I am satisfied that both the mother and the father are willing to facilitate the ongoing relationship between the children and other parent. Despite the turmoil of an emotional separation, for the most part the parents were able to demonstrate how much they valued the other’s contribution and role in the children’s life. As I have foreshadowed before, I am not prepared to draw adverse conclusions from actions and omissions of both the mother and father at or about the time of separation, and shortly thereafter. The parents were at an emotional nadir at that time. Moreover, I simply don’t accept as reliable any of the evidence attributed to the children about comments which would suggest that the father is not supporting the mothers’ relationship with them. The context of each of these assertions, and the broader context of this case, makes those statements of concern quite unreliable.
I further find that the father is able to facilitate and encourage this ongoing relationship. By contrast, however, the mother is less able because her household will consist of Ms M, Mr W and herself together with the children if she is successful in these proceedings. The evidence to which I have referred to above leads me to find that the presence of Ms M in a household that includes the children will provide a toxic environment within which to attempt to support a continuing relationship between the children and their father. To that extent, therefore, the mother lacks the “ability” to encourage this close and continuing relationship. It is no answer for the mother to say, hypothetically, that she will remove this toxic influence from her household. Not only is that unfair to the mother, and possibly fails to recognise that Ms M’s maturity is the key to the dissipation of the toxicity, but the real problem is that the evidence indicates that the viability of the mother’s household in Sydney depends upon the presence of Ms M and her fiancée, Mr W. This will be discussed below.
The likely effect of change
The fourth of the additional consideration refers to the likely effect of changes in the children’s circumstances, including the likely effect on the children of separation from parents and other significant persons.
The mother’s proposal presents the most significant change scenario for these children. They will be separated from their father who has been their primary care provider for most of the last year. It takes them away from their home, school, and the community they have known for all of their lives. It takes them away from their grandparents and their extended family on the father’s side. It takes them away from frequent contact with the maternal grandfather. It takes them away from their friends and, indeed, from the lifestyle they have known all their lives. Of course, on the mother’s proposal they would live with their mother, and with Ms M and Mr W with whom they have a good relationship. But it means living in the city, less financial stability, a change of school and friends, and quite a different lifestyle.
Whilst change is an ever-present feature in the lives of children, dramatic change that coincides with a time of great upheaval in their lives – the separation of their mother and father – presents even greater challenges for them. Experience indicates, and the expert evidence confirms, the children are particularly vulnerable at this time. One must therefore be cautious about further significant change. One must look to the benefits of change as opposed to the burdens of change. That is an inherent part in assessing all of the section 60CC considerations. The fact that the mother’s proposal presents the greatest change and thus the greatest impact of change in terms of the children’s circumstances and relationships, is not determinative of its own right, though it is a significant factor contra-indicating the mother’s proposal.
Issues of practical difficulty and expense
The fifth of the additional considerations refers to the practical difficulty and expense of a child spending time with and communicating with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Whichever proposal I adopt, unless the mother actually moves back closer to [W], there will be considerable issues with practical difficulty associated with contact. I am satisfied that the children are not coping with the current fortnightly arrangement that sees them spending so much time in a car on a long journey each alternate fortnight. I must address this concern in terms of framing the most appropriate contact order. Whilst I recognise, appreciate, and even applaud the parents and their extended family for the efforts that they have undertaken in facilitating fortnightly contact over vast distances for most of this year, I am not satisfied that this is sustainable, or that it is in the best interests of the children. [X] has, hitherto, been reluctant to travel by air. Perhaps as she grows up she will outgrow this reluctance and some of the logistical difficulties will be mitigated. Until then, and for as long as contact depends upon lengthy road trips, I remain concerned about the current frequency.
The capacity of the parents
Section 60CC(3)(f) refers to the capacity of each of the parents and other persons to provide for the needs of the children, including emotional and intellectual needs.
On balance the evidence raises few concerns about the capacity of either the mother or father to provide for the children’s emotional and intellectual needs. It may well be that the mother is better able to provide their emotional needs, but this is in the context of a case where even she recognised that there were no significant issues about the father’s capacity to care for the children on a full time basis.
It is easily overlooked, however, that this additional consideration refers to emotional and intellectual needs as a subset of the broader category of the needs of the children. The children’s physical needs are sometimes overlooked in parenting cases. In this case, however, the ability of the parents to provide for the physical needs, including their financial needs, is a consideration that needs to be explored having regard to the evidence.
In short, the evidence indicates that the mother is struggling in a financial sense, in Sydney. If she is hanging on, it is by the thinnest margin, and it is because of her dependence on Ms M and Mr W to assist both financially, and in many other practical ways, from time to time.
Based on the evidence of Ms M, and her mother, one of whom is a [occupation omitted], and the other who is training to be so, their job prospects in Sydney are bleak. That the mother has survived financially is attributed to the monies advanced by the father in the context of the property settlement that is yet to take place. In that regard, it must be recognised that unless the parents are able to resolve their property issues by consent, after I publish these reasons, they will not get a hearing until mid next year.
The mother is seeking employment in [omitted], no doubt with a view to enhancing her employment prospects. She does not complete her [omitted] course until November this year. She is clearly dependent, emotionally and financially, on the support of Ms M and Mr W.
Ms M’s evidence provided an insight into the extent of this emotional dependence. Ms M and Mr W’s evidence demonstrates the fluidity of their respective financial circumstances and the extent to which this is enmeshed with the mother in these proceedings.
I have lingering doubts about the mother’s ability to sustain a permanent residence in Sydney, whether or not she gains employment as a [omitted], and whether or not the household will also consist of
Ms M and Mr W. There must be some question mark about the stability of Ms M and Mr W’s relationship, as well as the stability of their respective employment.
Of course, meeting the physical needs of these children, in terms of finances, is but one aspect of meeting their needs which in turn is only one of many considerations. However, it must be considered in context. These children are vulnerable because of the separation of their parents. They are vulnerable to the adverse consequences of change. If the mother’s household offers the prospect of instability because of financial insecurity then one must consider the alternative of the unquestionable stability the will have with the father, in the home and community that they have known for all of their lives.
Maturity, sex, lifestyle and background
This additional consideration invites at some thought to be given about the maturity, lifestyle and background of the children and their parents.
These are country people, for the most-part. Whilst the mother in particular may have spent time away from [W], even for her it is the place with which she has the longest and strongest association. This family has enjoyed a country lifestyle, and a comfortable one at that.
It is by no means clear to me what the mother finds attractive about life in Sydney in circumstances where she is clearly struggling. The evidence indicates, in fact, that her employment prospects are no greater in Sydney then they would be in [W]. The family consultant detected a certain immaturity about the mother, without possibly even describing it in those terms. The reasons for the mother not returning to [W] seem to focus on herself, rather than the children. There was a certain immaturity and naivety that was evident in the mother’s evidence.
Attitudes to the children and to the responsibilities of parenthood
This consideration invites a close consideration of what parents do, or fail to do, with a view to seeking to understand what this says about their attitudes in relation to the children and to parenthood generally.
The mother unilaterally relocated to Sydney and appears to have either given little thought to the consequences of this, or was capricious about the same. She must have known that she was acting without the consent of the father. She must have had a reasonable apprehension that he would not sit idly by whilst she made these unilateral decisions. She demonstrated little insight about how these significant changes would affect the children. When the children were ordered to live with their father in [W], she again failed to appreciate the significance of the impact of this on her children in circumstances where she could have easily done something about it. During the course of this year she was able to convert the nature of her studies to distance education. One wonders why she could not have moved back closer to the children for the period pending the outcome of this litigation, given that her circumstances were that she was not working anyway, that her studies could be undertaken through distance learning, and the cost of living was even by her own evidence much cheaper outside of Sydney. The mother’s intransigent insistence on remaining in Sydney, in the circumstances of this case, reflects poorly on her judgment, and on her insight into the needs of her children. The father satisfactorily explained to me the reasons why he could not move to Sydney. He has a well-established business in [W]. The family is well supported through an extensive network of relatives and friends.
And yet, I am not entirely convinced that the mother will remain in Sydney irrespective of the orders that I make. At page 42 of the transcript of her evidence, in response to the question, “Are you saying that under no circumstances would you leave Sydney?”, she said, “I will finish my course and after my course, well, probably not. I actually like Sydney, and I want to make Sydney my home.” What is interesting about this passage is the ambivalence reflected in the words “probably not”. Another interesting passage is found at pages 58 – 59 of the transcript where the mother is asked:-
For these children to suddenly leave him and come to Sydney to live, in a big city where your daughter’s a shy worrying girl and [Y] loves his motor bikes and everything else, you’ve got no idea how they are going to handle it, have you? Answer: No.
It’s an experiment you’re going to put your children, isn’t it? Answer: No, it’s not an experiment. This is where I want to live and this is where I want to make our home.
What is interesting about all of the passages referred to in this section is the frequency with which the mother uses the preposition “I”. I will finish my course. I actually like Sydney. I want to make Sydney my home. This is where I want to live. This is where I want to make our home. This important evidence is very much focused on self, rather than on the children. At page 42 of the transcript, the mother was asked, “You appreciate that parents have to make sacrifices, don’t they?” She responded in the affirmative, but regrettably many of her actions indicate lack of appreciation of the very statement to which she agreed in cross-examination. This reflects poorly on the mother in terms of her attitudes to the children, and to the responsibilities of parenthood.
There are other examples of this. She agreed in cross-examination that she was often unable to protect [X] from her own strong feelings about the separation. She agreed that she told [X] that she, the mother, could go to gaol if she didn’t return [X] to her father. There was no reasonable basis for that belief. It was completely inappropriate to express that view to [X], particularly in the context of the high level of emotion that permeates this case.
It reflected very poorly on the mother that she made so little effort to be involved in the children’s lives in [W] during the course of this year. She didn’t go to their schools. She didn’t go to a number of school activities where, I have no doubt, that children would have welcomed her. She hasn’t spoken to the children’s teachers. She did speak to
Ms B, the school principal, and to the school counsellor on one occasion. In circumstances where the mother’s course was not full-time, and moreover when she then converted it to distance education so she was no longer obliged to attend in person, it is hard to understand why she would not attempt to become more involved in the children’s lives in [W]. This reflects poorly on her.
The mother’s consumption of alcohol is an issue in this case, not because it necessarily presents a situation where there is a risk of harm to the children. Rather, the mother’s consumption of alcohol, and the way she attempted to minimise this before the Court, reflects poorly on her insight about the relevance of this from her children’s perspective. After hearing all the evidence on this issue from all the witnesses including the parents, Ms M and Mr W, I am left in no doubt that firstly, the mother has minimised her daily consumption of alcohol, and secondly that she drinks “a couple of glasses of wine” each day. I have doubts about her assertion that she no longer drinks spirits. In the context of a case where the evidence indicates she is struggling to make ends meet in Sydney and where there are real issues about her capacity to provide for the physical needs of the children, the evidence about the mother’s expenditure on and consumption of alcohol is disconcerting. Again, it reflects poorly in terms of her responsibilities to parenthood.
It is apparent from the evidence that the father has failed to appreciate the significance of the mother in the children’s lives. And yet, he has, to use the words of his counsel, “put in the hard yards” and sought to sustain the children’s relationship with their mother over the course of many hours and kilometres of travel. It is quite possible that there have been lapses when he has either said inappropriate things to the children, or the children have been present when inappropriate things have been said about their mother. Despite these concerns, the father’s position in these proceedings reflected in his proposals to the Court, demonstrate an attempt to provide a constructive child-focused solution to the complex situation presented by this family to the Court. He offers stability to the children in the context of a loving household where, I am satisfied, the children’s relationship with their mother will be nurtured and encouraged.
Conclusion About Section 60CC Considerations
Having regard to and balancing all of the matters set out above, I conclude that on balance the mother’s proposal for the children to relocate to Sydney is not, ultimately, in their best interests. By contrast, the father’s proposals contain the greatest prospect for an arrangement that is in the best interests of the children.
Considering Equal Time or Substantial and Significant Time
Both parents seek an order for equal shared parental responsibility which means that I am required to consider equal time, or substantial and significant time. The father’s proposal contains three options. On the first option, the mother would live within 50 kilometres of [W] in which case he proposes an equal shared care arrangement from Friday after school to the following Friday before school, together with half the school holidays. However, in the event that mother lived more than 50 kilometres but less than 200 kilometres from [W], he proposes that the children live with him and spend time with their mother each alternate weekend from Friday after school to Sunday 5pm and then half the school holidays. The third alternative proposed by the father is in the event that the mother lives in Sydney, and in this regard he proposes that the children spend time with her for two weekends a month from Friday after school to Sunday provided that such contact shall occur within a hundred kilometres of [W] on one such occasion. He also proposes half the school holidays and special occasions.
Having regard to all of the matters referred to in my reasons so far, I consider that each of these proposals is in the best interests of the children, though I would like to discuss the contact arrangements in greater detail below. I consider that none of the concerns that I have raised about the mother’s proposal present an obstacle to the implementation of any of the father’s proposals, including his first proposal for equal time. Even my concerns about Ms M’s potentially toxic influence against the father in the mother’s household is satisfactorily addressed by an equal shared care arrangement because the children would be spending so much frequent time with their father, and would have the stability that is afforded to them by their current life in [W].
Of course, I am also required to consider whether the father’s proposals are reasonably practical. Section 65DAA(5) invites me to reflect on a number of matters. I have already considered the issue of how far apart the parents live from each other. Indeed, the father’s proposal clearly contemplates the number of scenarios in this regard. From this perspective, his proposal is reasonably practical. I must have regard to the parents’ current and future capacity to implement an arrangement for equal time or substantial and significant time. I believe that, based on the evidence I have considered, each parent does have a current and future capacity to implement any of the arrangements proffered by the father. I am not convinced that the mother will not return to [W]. I am not convinced that she will completely reject a proposal that involves living within 200 kilometres of [W].
I am required to consider the parents’ current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an arrangement for equal time, or substantial and significant time. I am satisfied about the parents’ capacity in this regard. I am reasonably confident that the conclusion of these proceedings may well contribute to a reduction in the level of emotion that has been present in this matter since the relationship broke down. This will enhance their capacity to communicate. This case is notable in that it is the level of emotion that is the problem, but this has not entirely prevented appropriate communication between the parties. I am further required to consider the impact that an arrangement for equal time or substantial and significant time would have on the children. Based on the matters I have considered in these reasons for judgment, I believe that an equal time arrangement would be a very positive outcome for the children in these proceedings and I urge the mother to consider taking advantage of the order for equal time that I intend to make on the basis that it is my assessment of what is in the best interests of the children.
In short, I am satisfied that, subject to the comments I make below in relation to the contact order, the father’s proposals are both in the best interests of the children and reasonably practicable.
In the event that the mother lives more than 50 kilometres but less than 200 kilometres from [W], the father proposes that the children spend time with the mother each alternate weekend from Friday after school to Sunday 5pm. However, it seems to me that it may not be impracticable for the mother to return the children directly to school on Monday morning if she lives in an area which makes it reasonably practicable for her to do so. Accordingly, I intend to add an order that says that, in effect, the mother may return the children to school on Monday mornings if she lives within a distance of 100 kilometres of the children’s school, on the basis that, by country standards, it would take an hour or so to get the children to school on a Monday morning.
If the mother chooses to remain in Sydney, the father’s proposal for the mother to spend time with the children involves one weekend in Sydney, and one weekend within a hundred kilometres of [W] each month. Compared to the current arrangement, this offers the prospect of less travel for the children because on the second weekend of the month they won’t be travelling more than 100 kilometres from home. Of course, this offers practical difficulties for the mother who, by definition, will be living in Sydney. I have concerns about how the mother could make this work from a practical perspective. I do not wish to deny her the opportunity of taking advantage of the father’s proposal but what I wouldn’t like to see is that because, as a practical matter, she can’t take advantage of the offer, the children end up only seeing her one weekend per month. An option that I intend to offer the mother is that she may choose between the father’s proposal as articulated at 3.3.1 of his proposal, or the alternative of once every three weekends in Sydney. Once every three weekends offers a consistency of contact, but also represents a substantial reduction in the amount of time that the children are spending undertaking travel to and from the home of their respective parents.
I am satisfied that the father’s proposal contains an appropriate mechanism for dealing with who is responsible for travel associated with contact.
I intend to include a provision in the orders that enables the parents to send these children by air to and from Sydney, subject to the availability of services, subject to expense and subject to their being satisfied that it is in the best interests of the children. This may be an option that they are prepared to consider in the future.
Whilst I don’t think I need to make an order to this effect, I would encourage the father to consider an appropriate form of counselling for [X] and [Y], depending on whether or not the children’s mother decides to return to [W], or in a reasonable proximity.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 5 November 2010
Schedule
Proposed Minutes of Order sought by the Applicant Father
That the children [X] born [in] 1999 and [Y] born [in] 2004 (the children) live with the father.
That the parties have equal shared parental responsibility for the children.
That the children spend time and communicate with the mother as follows:
a.In the event that the mother lives within 50 kilometres from the township of [W];
i.Each alternate week from Friday after school to the following Friday before school;
ii.For the first half of NSW school holiday periods commencing10.00am the first day of school holiday to 5.00pm on the midpoint day of the school holiday period in odd numbered years;
iii.For the second half of NSW school holiday period commencing 10.00am on the midpoint day of the school holiday period to 5.00pm on the Saturday prior to the commencement of the new school term in even numbered years;
iv.Mother’s day weekend from Friday after school to Sunday 5.00pm;
v.Shared children’s birthday.
b.In the event that the mother lived more than 50 kilometres but less than 200 kilometres from the township of [W]:
i.Each alternate weekend from Friday after school to Sunday 5.00pm or Monday 5.00pm if Monday is a public holiday;
ii.For the first half of NSW school holiday periods commencing10.00am the first day of school holiday to 5.00pm on the midpoint day of the school holiday period in odd numbered years;
iii.For the second half of NSW school holiday period commencing 10.00am on the midpoint day of the school holiday period to 5.00pm on the Saturday prior to the commencement of the new school term in even numbered years;
iv.Mother’s day weekend from Friday after school to Sunday 5.00pm;
v.Shared children’s birthday.
c.In the event that the mother lives in Sydney, the children shall spend time with the mother:
i.
Two weekends per month from Friday after school to Sunday 5.00pm or Monday 5.00pm if Monday is a public holiday except that such contact shall occur within
100 kilometres of [W] once a month;
ii.For the first half of NSW school holiday periods commencing10.00am the first day of school holiday to 5.00pm on the midpoint day of the school holiday period in odd numbered years;
iii.For the second half of NSW school holiday period commencing 10.00am on the midpoint day of the school holiday period to 5.00pm on the Saturday prior to the commencement of the new school term in even numbered years;
iv.Mother’s day weekend from Friday after school to Sunday 5.00pm;
v.Shared children’s birthday.
vi.On any occasions that the mother is in [W] and upon providing the father with not less than 14 days prior notice of her intention to spend time with the children and provided that she ensures the children attend any activities they are required to attend during the period they are in the care of the mother.
d.That the children’s time with the mother pursuant to 3 hereof be suspended on the father’s day weekend from Friday after school to Sunday 5.00pm.
e.The children’s time with the mother on weekends shall be suspended during school holidays.
f.Such other times as mutually agreed by the parties from time to time.
g.The children shall have liberal telephone communication with the mother between the hours of 6.00pm and 7.00pm.
For the purpose of the children spending time with the mother in accordance with order 3 except for Order 3(c)(i), the parties shall meet at a midway point between their respective residences for the purpose of change over.
For the purpose of the children spending time with the mother in accordance with the Order 3(c)(i), the mother shall collect the children from their school at [W] on Friday and return the children to the father’s residence at the conclusion of such contact.
That the parties authorise the children’s school to provide to the parents any information and/or documents requested by the parents.
Both parents are restrained from saying anything to or in the presence of the children which is in anyway abusive, belittling or demeaning of the other parent and further are restrained from allowing any other person to say anything to or in the presence of the children which is in anyway abusive, belittling or demeaning of the other parent.
Both parents are restrained from saying anything to or in the presence of the child about any dispute between the parents.
That the parties shall notify the other as soon as practicable in the event that the children or either of them suffer any illness, accident that requires medical treatment and shall provide the other party any information relevant to the treatment.
Proposed Minutes of Order sought by the Respondent Mother
That all previous parenting orders relating to the children [X] born [in] 1999 and [Y] born [in] 2004 (“THE CHILDREN”) be discharged.
That the children live with the Mother.
That the parties have equal shared parental responsibility for the children.
That the children spend time and communicate with the Father as follows: -
a. On one weekend per month from 5.30-6pm Friday to 5.30-6pm Sunday or Monday if a public holiday commencing Friday, 23 July 2010;
b. During each of the short NSW school holiday periods commencing from the day following the conclusion of school term until 5.30-6pm on the Saturday prior to the commencement of the next school term;
c. During each Christmas school holiday period for a period of 3 weeks commencing from 12pm on 24 December in odd numbered years and from 12pm on 7 January in even numbered years;
d. On any occasion that the Father is in Sydney upon providing the Mother with not less than 14 days prior notice of his intention to do so and provided that he ensures that the children attend any activities they are required to attend during the period they are in the care of the Father;
e. By telephone not less than each alternate day between the hours of 6pm and 7pm with the Father to initiate the phone call to a telephone number nominated by the Mother and the Mother to ensure that the children are available to speak with the Father; and
f. At any time/s as the parties may agree from time to time.
For the purposes of the children spending time with the Father the parties shall meet at McDonald’s [address omitted] at the commencement and conclusion of each period that the children are to spend time with the Father, other than when the Father is spending time with the children in Sydney.
That the time the children spend with the Father pursuant to Order 4(a) above be suspended during school holidays.
That each party shall be at liberty to and have authority to speak with and obtain information in relation to the children from any school and medical practitioner that the children or either of them may attend upon from time to time.
That neither party is to denigrate the other in the presence and/or hearing of the children, or either of them, and shall use their best endeavours to ensure that no other person does so.
That the parties shall each notify the other immediately in the event that the children or either of them suffer any illness, accident and/or injury that requires medical treatment together with all relevant details as soon as practicable.
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