Wilcox and Wilcox
[2016] FCCA 2971
•17 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILCOX & WILCOX | [2016] FCCA 2971 |
| Catchwords: FAMILY LAW – Parenting – spending time arrangements for children – allegations of Family Violence by both parents – mother’s capacity to facilitate a relationship between the children and their father – whether the mother should have sole parental responsibility. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA, 117 |
| Cases cited: Lennon & Lennon [2011] FamCA 571 |
| Applicant: | MR WILCOX |
| Respondent: | MS WILCOX |
| File Number: | MLC 1322 of 2015 |
| Judgment of: | Judge Williams |
| Hearing dates: | 5 – 8 September 2016 |
| Date of Last Submission: | 29 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 17 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Renwick |
| Solicitors for the Applicant: | Barry Nilsson Lawyers |
| The Respondent: | In Person |
ORDERS
That all previous parenting Orders be discharged.
The husband and the wife retain equal shared parental responsibility for the children X born (omitted) 2002 and Y born (omitted) 2005.
The children live with the wife.
Commencing the Wednesday immediately following the making of these Orders, and for a period of one month, the children spend time with the husband as follows during school terms:
(a)In week one:
(i)from the conclusion of school on Friday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until 5:00pm on Sunday; and
(b)In week two:
(i)From 6:00pm on Wednesday (or the conclusion of any extracurricular activity be undertaken by the children or either of them) until the commencement of school on Thursday (or 9:00am if a non-school day).
Following the expiration of the month contemplated by paragraph 4 hereof, and for a further period of one month, the children spend time with the husband as follows during school terms:
(a)In week one:
(i)from the conclusion of school on Friday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until commencement of school Monday (or 9.00am if a non-school day);
(b)In week two:
(i)from 6:00pm on Wednesday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until the commencement of school on Thursday (or 9:00am if a non-school day).
Following the expiration of the month contemplated by paragraph 5 hereof, the children will spend time with the children as follows during school terms:
(a)In week one:
(i)from 6:00pm on Friday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until the commencement of school on Monday (or 9:00am if a non-school day); and
(ii)if Monday is a public holiday, then the commencement of school on Tuesday (or 9:00am if a non-school day).
(b)In week two:
(i)from 6:00pm on Wednesday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until the commencement of school on Thursday (or 9:00am if a non-school day).
In the event that the husband lives within a 10 kilometre radius of the children’s home then, upon the commencement of time in paragraph 6 hereof, in addition to the time provided in week 1, the children spend time with the husband from 6.00pm on Wednesday or the conclusion of any extra-curricular activity being undertaken by the children or either of them, until the commencement of school or Thursday (or 9.00am if a non-school day).
The children spend time with the husband school holiday periods as follows:
(a)During the term one, term two and term three school holidays as agreed between the parties in writing and, in default of agreement:
(i)for the first half in all even numbered years;
(ii)for the second half in all odd numbered years; and
(iii)the husband’s term time pursuant to paragraphs 4, 5, 6 and 7 hereof be suspended to give effect to this time.
(b)During the long summer school holidays as agreed between the parties in writing and, in default of agreement, pursuant to a week about arrangement with:
(i)the husband's first week to commence in the second week of the long summer school holidays in even numbered years;
(ii)the husband's first week to commence in the first week of the long summer school holidays in even numbered years; and
(iii)the husband's term time pursuant to paragraphs 4, 5, 6 and 7 hereof be suspended to give effect to this time.
For the purposes of paragraph 8 hereof:
(a)The school holiday period is taken to commence at the conclusion of school on the last day of the school term and, if different for the children, the later date.
(b)The school holiday period is taken to conclude at the commencement of school on the first day of the following school term and, if different for the children, the earlier date.
(c)If there are an uneven number of days in the school holiday period, then the parent with whom the children are spending the first half of the holidays will have the extra night.
(d)All non-school holiday Changeover shall occur at 6.00pm unless otherwise agreed in writing by the husband and the wife, in accordance with paragraph 12 hereof.
(e)The term time contemplated by paragraphs 4, 5, 6 and 7 hereof will resume at the conclusion of the school holiday period as if there had been no intermittent school holiday period.
The children spend special occasions with their parents as agreed between the parties in writing and, in default of agreement, in accordance with this provision and all other time is suspended to facilitate the same:
(a)The children spend time with their parents for the Christmas period as follows:
(i)From 5:00pm on Christmas Eve until 1:00pm on Christmas Day in all even numbered years with the wife.
(ii)From 1:00pm on Christmas Day until 5:00pm on Boxing Day in all even numbered years with the husband.
(iii)From 5:00pm on Christmas Eve until 1:00pm on Christmas Day in all odd numbered years with the husband.
(iv)From 1:00pm on Christmas Day until 5:00pm on Boxing Day in all odd numbered years with the wife.
(b)The children spend time with their parents for the Easter period as follows:
(i)From 5:00pm on Good Friday until 1:00pm on Easter Sunday in all even numbered years with the wife.
(ii)From 1:00pm on Easter Sunday until 5:00pm on Easter Monday in all even numbered years with the husband.
(iii)From 5:00pm on Good Friday until 1:00pm on Easter Sunday in all odd numbered years with the husband.
(iv)From 1:00pm on Easter Sunday until 5:00pm on Easter Monday in all odd numbered years with the wife.
(c)In the event that Father’s Day falls on a day on which the children are not spending time with the husband pursuant to these Orders, then the husband spend time with the children from 5.00pm on the eve of Father’s Day until the commencement of school on the following Monday (or 9.00am if a non-school day).
(d)In the event that Mother's Day falls on a day on which the children are not spending time with the wife pursuant to these Orders, then the wife spend time with the children from 5:00pm on the eve of Mother's Day until the commencement of school on the following Monday (or 9:00am if a non-school day).
(e)In the event that any of the children's birthdays or the husband's birthday falls on a day on which the children are not spending time with the husband pursuant to these Orders, then the husband will spend time with the children as agreed between the parties in writing and, failing agreement, as follows:
(i)from the conclusion of school until 7:30pm on a school day; or
(ii)between 3:00pm - 7:30pm on a non-school day.
(f)In the event that any of the children's birthdays or the wife's birthday falls on a day on which the children are not spending time with the wife pursuant to these Orders, then the wife will spend time with the children as agreed between the parties in writing and, failing agreement, as follows:
(i)from the conclusion of school until 7:30pm on a school day; or
(ii)between 3:00pm - 7:30pm on a non-school day.
(g)the parties time contemplated by paragraphs 4, 5, 6, 7 and 8 be suspended to give effect to this time.
Each of the husband and the wife have telephone/Skype or any other communication with the children at all such times which are suitable to the children's routines and the children will be at liberty to communicate with either parent at all such times as the children express a wish to do so and the parent with whom the children are then spending time shall facilitate that communication and afford the children privacy during that communication
For the purposes of these Orders, changeover will occur at a location as agreed between the parties in writing and, in default of agreement , at:
(a)the children's school/s on school days;
(b)the location of the children's extracurricular activities as applicable; or
(c)the McDonalds Restaurant on (omitted) in (omitted) on nonschool days.
That the parties do all such acts and things to ensure that both parties will have at their ordinary place of residence, medicine prescribed to Y by her treating medical practitioner for her asthma, including but not limited to a Ventolin spacer.
Each of the parties will at all times:
(a)Keep the other party informed oh his/her contact details within 14 days of any change occurring, including any change to a residential address, landline or mobile telephone number and email address.
(b)Keep the other party informed of the names and addresses of any treating medical or any other allied health practitioner/s, including psychologists and counsellors, who treat the children and authorise such practitioner/s to provide the other party with all information that they are lawfully able to provide to parents about the children.
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner/s to release information concerning the said condition, health issue or illness to the other parent.
(d)Authorise the principal of the school/s attended by the children from time to time to provide to the other party all information ordinarily provided by the school/s to parents of students, at the cost of the party (if any).
(e)Are at liberty to attend at the children's school/s for all events that are routinely attended by parents including, but not limited to, parent teacher interviews, sporting events, school productions and extra curricular activities.
Each of the husband and the wife agree to do all acts and things and sign all documents to apply for Australian passports for the children within one month of the date of these Orders and they will renew those passports as required (but prior to their expiry dates) from time to time, with each of the husband and the wife paying one-half of the cost of obtaining or renewing the children's passports on each occasion.
Each of the husband and the wife agree that the other may temporarily take the children outside of the Commonwealth of Australia and must be provided with the children's passport for the purpose of such travel on such conditions as are agreed between the husband and the wife, and failing agreement, upon the following conditions being met:
(a)the travel is during a school holiday period and during time the children would otherwise spend with the travelling parent pursuant to these Orders;
(b)the children are only to visit (even by way of transit or stopover) countries that are signatories to The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction;
(c)the travelling parent provides the non-travelling parent with a draft itinerary, including at least the proposed dates of travel and the countries to which it is proposed the children will be travelling, at least three months prior to the first day of travel;
(d)the travelling parent provides the non-travelling parent with a copy of any airline ticket to be used by the children as well as an itinerary showing all countries that the children will be visiting during the travel at least two months prior to the first day of travel;
(e)The travelling parent provides the non-travelling parent with a copy of a comprehensive travel insurance policy covering the travelling parent and the children, as well as a contact telephone number and address(es) at which the children can be contacted throughout the travel at least fourteen days prior to the first day of travel; and
(f)The travelling parent pays all costs associated with travel.
During any periods of travel, the travelling parent must ensure that the children contact the non-travelling parent by telephone, Skype or other electronic means on at least two occasions per week.
During periods of non-travel, the children's passport will be held by the wife.
In the event that there is a dispute about the children, parenting arrangements or about the interpretation, implementation and/or enforcement of these Orders, then the husband and the wife shall, before making any further application to either the Family Court of Australia or Federal Circuit Court of Australia:
(a)attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth), or by the Commonwealth AttorneyGeneral; or
(b)participate in Family Dispute Resolution with a Family Relationships Centre or a person authorised under s.1OG of the Family Law Act 1975 (Cth).
The husband and the wife, and if applicable, the children to attend upon joint family therapy with such practitioner as recommended by Ms D of (omitted) and for such time as that practitioner considers the same necessary.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Wilcox & Wilcox is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1322 of 2015
| MR WILCOX |
Applicant
And
| MS WILCOX |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant husband is the father and the respondent wife is the mother of the children X born (omitted) 2002 (currently 14 years old) and Y born (omitted) 2005 (currently 11 years old).
Both parents seek orders that the children live with the wife.
The husband seeks to spend substantial and significant time with both children.
Background
The wife was born on (omitted) 1972 (currently 44 years old) and the husband was born on (omitted) 1971 (currently 45 years old). They commenced cohabitation in about 1993 and married on (omitted) 1999. They separated for two periods prior to final separation, firstly between July 2013 and October 2013, and secondly between 8 November 2013 and 26 January 2014. On 17 August 2014 they separated on a final basis.
X attends (omitted) School in (omitted) and is in year 8. Y attends (omitted) primary school in (omitted) and is in grade 6. Both children are in good health and are progressing well at school.
Immediately subsequent to separation, the husband left the former family home in (omitted). He lived with his uncle in (omitted) for two months, prior to obtaining rental accommodation in (omitted). The wife and the children remained living in the former family home where they continue to live. The husband has recently leased a two bedroom unit in (omitted) which is near to his employment.
The parenting arrangements during the marriage were that the wife worked part-time and was the primary homemaker and the husband worked full-time and assisted with the children’s care before and after his work commitments and on weekends. This was agreed by both parents.
The husband particularised details of his involvement with the children both as to education, selection of their respective schools and his involvement in their extracurricular activities. The husband acknowledged that during the marriage the wife was an excellent mother.
Both parents agreed that they had different parenting styles, with the husband being more of a disciplinarian than the wife. He characterised the wife’s parenting style as flexible or liberal. It is also apparent that the wife is highly critical of the husband’s more structured and disciplined parenting style.
The husband alleged that during the two periods of separation prior to final separation, the wife did not facilitate adequate time between himself and the children. In particular, he asserts that between mid July 2013 and August 2013, the wife did not allow the children to see or speak to their father, despite his efforts to facilitate time. The wife disagrees with the assertion that she did not facilitate the children spending time with their father post separation.
The husband also asserts that between 8 November 2013 and 26 January 2014 his time with the children was somewhat limited, however, the wife did facilitate time between himself and the children, including moving out of the family home each alternate weekend to enable the husband to spend Saturday overnight with the children.
The wife asserts that the children are at times fearful of their father and that they do not know how to cope with his unpredictable and varied moods.
To their credit, the parties attempted mediation to resolve their parenting dispute, however they were unsuccessful and the husband issued these proceedings on 20 February 2015.
Proposals of the parties
The husband’s proposal
The husband’s proposal is as follows:[1]
[1] Further Amended Initiating Application filed 23 August 2016.
a)the parents have equal shared parental responsibility for the children
b)the children live with the wife
c)the children spend time with the husband as follows, during school terms:
1. That all previous parenting Orders be discharged.
2. Except as otherwise provided in these Orders, the Applicant Husband, Mr Wilcox ( the husband), and the Respondent Wife, Ms Wilcox ( the wife), will have equal shared parental responsibility with respect to decisions about major long-term issues in relation to the children:
(a) X, born (omitted) 2002 (X); and
(b) Y, born (omitted) 2005 (Y}; (the children).
3. For the avoidance of doubt, major long-term issues are issues about the care, welfare and development of the children which are of a long-term nature and include, but are not limited to:
(a) the children's education, both current and future; and
(a) the children's religious and cultural upbringing; and
(b) the children's health; and
(c) the children's names; and
(d) changes to the children's living arrangements that make it significantly more difficult for the children to spend time with a parent.
4. In the exercise of equal shared parental responsibility, each of the husband and the wife must make decisions about major long-term issues jointly, by consulting with the other in relation to the decision to be made and making a genuine effort to come to a joint decision about that major long-term issue affecting the children.
5. If the children are spending time with either of the husband or the wife in accordance with these Orders, during that time neither the husband nor the wife need to consult the other with respect to decisions made in relation to the children that are not major long-term issues.
6. The children will live with the wife.
7. Commencing the Wednesday immediately following the making of these Orders, and for a period of one month, the husband will spend substantial and significant time with the children as agreed between the parties in writing and, failing agreement, as follows during school terms:
(a) In week one:
(i) from the conclusion of school on Friday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until 5:00pm on Sunday; and
(b) In week two:
(i) from 6:00pm on Wednesday {or the conclusion of any extracurricular activity being undertaken by the children or either of them) until the commencement of school on Thursday (or 9:00am if a non-school day).
8. Following the expiration of the month contemplated by paragraph 7 hereof, and for a further period of one month, the husband will spend substantial and significant time with the children as agreed between the parties in writing and, failing agreement, as follows during school terms:
(a) In week one:
(i) from 6:00pm on Wednesday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until the commencement of school on Thursday (or 9:00am if a non-school day); and
(ii) from the conclusion of school on Friday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until 5:00pm on Sunday; and
(b) In week two:
(i) from 6:00pm on Wednesday {or the conclusion of any extracurricular activity being undertaken by the children or either of them) until the commencement of school on Thursday (or 9:00am if a non-school day).
9. Following the expiration of the month contemplated by paragraph 8 hereof, the husband will spend substantial and significant time with the children as agreed between the parties in writing and, failing agreement, as follows during school terms:
(a) In week one:
(i) from 6:00pm on Wednesday {or the conclusion of any extracurricular activity being undertaken by the children or either of them) until the commencement of school on Thursday (or 9:00am if a non-school day); and
(ii) from 6:00pm on Friday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until the commencement of school on Monday (or 9:00am if a non-school day); and
(iii) if Monday is a public holiday, then the commencement of school on Tuesday (or 9:00am if a non-school day).
(b) In week two:
(i) from 6:00pm on Wednesday {or the conclusion of any extracurricular activity being undertaken by the children or either of them) until the commencement of school on Thursday (or 9:00am if a non-school day).
10. The husband will spend time for the school holiday periods as follows:
(a) During the term one, term two and term three school holidays as agreed between the parties in writing and, in default of agreement:
(i) for the first half in all even numbered years;
{ii) for the second half in all odd numbered years; and
(ii) the husband’s time pursuant to paragraphs 7, 8, 9 hereof be suspended to give effect to this time.
(b) During the long summer school holidays as agreed between the parties in writing and, in default of agreement, pursuant to a week about arrangement with:
(i) the husband's first week to commence in the second week of the long summer school holidays in even numbered years;
(ii) the husband's first week to commence in the first week of the long summer school holidays in even numbered years; and
(iii) the husband's time pursuant to paragraphs 7, 8 and 9 hereof be suspended to give effect to this time.
(c) For the avoidance of doubt, the children will remain in the care of the wife at all other times.
11. For the purposes of paragraph 10 hereof:
(a) The school holiday period is taken to commence at the conclusion of school on the last day of the school term and, if different for the children, the later date.
(b) The school holiday period is taken to conclude at the commencement of school on the first day of the following school term and, if different for the children, the earlier date.
(c) Jf there are an uneven number of days in the school holiday period, then the parent with whom the children are spending the first half of the holidays will have the extra night.
(d) The parties' time contemplated by paragraphs 7, 8 and 9 hereof will resume at the conclusion of the school holiday period as if there had been no intermittent school holiday period.
12. The parties spend special occasions with the children as agreed between the parties in writing and, in default of agreement, in accordance with this provision and all other time is suspended to facilitate the same:
(a The parties spend time with the children for the Christmas period as follows:
i. From 5:00pm on Christmas Eve until 1:00pm on Christmas Day in all even numbered years with the wife.
ii. From 1:00pm on Christmas Day until 5:00pm on Boxing Day in all even numbered years with the husband.
iii. From 5:00pm on Christmas Eve until 1:00pm on Christmas Day in all odd numbered years with the husband.
iv. From 1:00pm on Christmas Day until 5:00pm on Boxing Day in all odd numbered years with the wife.
(b) The parties spend time with children for the Easter period as follows:
i. From 5:00pm on Good Friday until 1:00pm on Easter Sunday in all even numbered years with the wife.
ii. From 1:00pm on Easter Sunday until 5:00pm on Easter Monday in all even numbered years with the husband.
iii. From 5:00pm on Good Friday until 1:00pm on Easter Sunday in all odd numbered years with the husband.
iv. From 1:00pm on Easter Sunday until 5:00pm on Easter Monday in all odd numbered years with the wife.
(c) In the event that Father’s Day falls on a day on which the children are not spending time with the husband pursuant to these Orders, then the husband spend time with the children from 5.00pm on the eve of Father’s Day until the commencement of school on the following Monday (or 9.00am if a non-school day).
(d) In the event that Mother's Day falls on a day on which the children are not spending time with the wife pursuant to these Orders, then the wife spend time with the children from 5:00pm on the eve of Mother's Day until the commencement of school on the following Monday (or 9:00am if a non-school day).
(e) In the event that any of the children's birthdays or the husband's birthday falls on a day on which the children are not spending time with the husband pursuant to these Orders, then the husband will spend time with the children as agreed between the parties in writing and, failing agreement, as follows:
i. from the conclusion of school until 7:30pm on a school day; or
ii. between 3:00pm - 7:30pm on a non-school day.
(f) In the event that any of the children's birthdays or the wife's birthday falls on a day on which the children are not spending time with the wife pursuant to these Orders, then the wife will spend time with the children as agreed between the parties in writing and, failing agreement, as follows:
i. from the conclusion of school until 7:30pm on a school day; or
ii. between 3:00pm - 7:30pm on a non-school day.
(g) the parties time contemplated by paragraphs 4, 5, 6, and 8 be suspended to give effect to this time.
13. Each of the husband and the wife have telephone/Skype or any other communication with the children at all such times which are suitable to the children's routines and the children will be at liberty to communicate with either parent at all such times as the children express a wish to do so and the parent with whom the children are then spending time shall facilitate that communication and afford the children privacy during that communication
14. For the purposes of these Orders, changeover will occur at a location as agreed between the parties in writing and, in default of agreement , at:
(a) the children's school/s on school days;
(b) the location of the children's extracurricular activities as applicable; or
(c) the McDonalds Restaurant on (omitted) in (omitted) on nonschool days.
15. That the parties do all such acts and things to ensure that both parties will have at their ordinary place of residence, medicine prescribed to Y by her treating medical practitioner for her asthma, including but not limited to a Ventolin spacer.
16. Each of the parties will at all times:
(a) Keep the other party informed oh his/her contact details within 14 days of any change occurring, including any change to a residential address, landline or mobile telephone number and email address.
(b) Keep the other party informed of the names and addresses of any treating medical or any other allied health practitioner/s, including psychologists and counsellors, who treat the children and authorise such practitioner/s to provide the other party with all information that they are lawfully able to provide to parents about the children.
(c) Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner/s to release information concerning the said condition, health issue or illness to the other parent.
(d) Authorise the principal of the school/s attended by the children from time to time to provide to the other party all information ordinarily provided by the school/s to parents of students, at the cost of the party (if any).
(e) Are at liberty to attend at the children's school/s for all events that are routinely attended by parents including, but not limited to, parent teacher interviews, sporting events, school productions and extra curricular activities.
17. Each of the husband and the wife agree to do all acts and things and sign all documents to apply for Australian passports for the children within one month of the date of these Orders and they will renew those passports as required (but prior to their expiry dates) from time to time, with each of the husband and the wife paying one-half of the cost of obtaining or renewing the children's passports on each occasion.
18. Each of the husband and the wife agree that the other may temporarily take the children outside of the Commonwealth of Australia and must be provided with the children's passport for the purpose of such travel on such conditions as are agreed between the husband and the wife, and failing agreement, upon the following conditions being met:
(a) the travel is during a school holiday period and during time the children would otherwise spend with the travelling parent pursuant to these Orders;
(b) the children are only to visit (even by way of transit or stopover) countries that are signatories to The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction;
(c) the travelling parent provides the non-travelling parent with a draft itinerary, including at least the proposed dates of travel and the countries to which it is proposed the children will be travelling, at least three months prior to the first day of travel;
(d) the travelling parent provides the non-travelling parent with a copy of any airline ticket to be used by the children as well as an itinerary showing all countries that the children will be visiting during the travel at least two months prior to the first day of travel;
(e) The travelling parent provides the non-travelling parent with a copy of a comprehensive travel insurance policy covering the travelling parent and the children, as well as a contact telephone number and address(es) at which the children can be contacted throughout the travel at least fourteen days prior to the first day of travel; and
(f) The travelling parents pays all costs associated with travel.
19. During any periods of travel, the travelling parent must ensure that the children contact the non-travelling parent by telephone, Skype or other electronic means on at least two occasions per week.
20. The non-travelling parent be and is hereby restrained by injunction, pursuant to s.688 of the Family Law Act 1975 (Cth), from seeking an order for the immediate return of the children in the event that the children's return to Australia is held up for a reasonable period by unforeseen circumstances such as an airline strike or adverse weather conditions beyond the control of the travelling parent.
21. During periods of non-travel, the children's passport will be held in a safety deposit box operated and accessed only upon the joint instructions of the husband and the wife and paid for equally by both the husband and the wife.
22. In the event that there is a dispute about the children, parenting arrangements or about the interpretation, implementation and/or enforcement of these Orders, then the husband and the wife shall, before making any further application to either the Family Court of Australia or Federal Circuit Court of Australia:
(a) attend counseling or mediation with an organisation recognised under the Family Law Act 1975 (Cth), or by the Commonwealth AttorneyGeneral; or
(b) participate in Family Dispute Resolution with a Family Relationships Centre or a person authorised under s.1OG of the Family Law Act 1975 (Cth).
23. The parties be and are hereby compelled, by injunction, pursuant to s.68B of the Family Law Act 1975 (Cth) to attend upon joint family therapy with such practitioner as recommended by Ms D of (omitted) and for such time as that practitioner considers the same necessary.
24. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
The documents relied upon by the husband are as follows:
a)Further amended initiating application filed 23 August 2016;
b)Affidavit of husband filed 23 August 2016;
c)Husband’s outline of case filed one September 2016;
d)Section 11F child inclusive conference memoranda prepared by Ms M dated:
i)8 July 2015;
ii)28 October 2015;
iii)11 April 2016.
The husband gave evidence and was cross examined. He answered questions directly and generally in a calm manner, despite some very testing and provocative questioning from the wife.
He made appropriate concessions in response to questioning about the episodes of physical altercations between the husband and the wife. He did not attempt to justify his sometimes inappropriate actions and accepted responsibility when necessary. He seemed to be particularly frustrated and perplexed by the obstacles that he perceived the wife had placed in his way, to prevent him spending significant time with the children. I found his evidence to be truthful and credible and to be focused on the needs of the children.
The wife’s proposal
The wife’s proposal is as follows:[2]
[2] Amended Response filed to September 2016.
Annexure A
FINAL ORDERS SOUGHT BY RESPONDENT WIFE
Parenting Orders
1. The Wife have the sole parental responsibility for the children X born (omitted) 2002 and Y born (omitted) 2005 ("the children") provided that prior to making any decision relating to the children's (or either of them) long term care, welfare and development, the Wife notify the Husband in writing of her proposed decision as soon as reasonably practicable and take into account any written response received from the Husband relating to his views about the proposed decision SAVE FOR that the Wife shall be restrained from changing the children's (or either of them) names without the written consent of the Husband.
2. That the children live with the Wife.
3. The children spend time with the father as follows:
(a) From 6 September 2016 - 6 September 2017
(i) Each Alternate weekend from 5.00pm Saturday - 5.00pm on Sunday.
(ii) Each Alternate Monday from 5.30pm until 8.00pm.
(b) From 6 March 2018 - 6 September 2018
(i) Each Alternate weekend from 3.00pm Saturday - 7.00pm on Sunday.
(ii) Each Alternate Monday from 5.30pm until 8.00pm
(c) From 6 September 2017 - 6 March 2018
(i) Each Alternate weekend from 5.00pm Saturday - 7.00pm on Sunday.
(ii) Each Alternate Monday from 5.30pm until 8.00pm.
(d) From 6 September 2018 - 6 March 2019
(i) Each Alternate weekend from 12.00pm Saturday - 7.00pm on Sunday.
(ii) Each Alternate Monday from 5.30pm until 8.00pm
(e) From 6 March 2019 - 6 September2020
(i) Each Alternate weekend from 6.00pm Friday - 7.00pm on Sunday.
(ii) Each Alternate Monday from 5.30pm until 8.00pm.
(f) Otherwise as agreed between the parties in writing.
(g) During the term one. two and term 3 school holidays as agreed between the parties in writing and in default of agreement:
(a) From 6 September 2016 - 6 September 2017
(i) from 10.00am Monday - 6.00pm Tuesday in the second half of the school holidays.
(ii) from 6.00pm Friday - 6.00pm Saturday in the second half of the school holidays.
(b) From 6 September 2017 - 6 September 2018
(i) from 10.00am Monday - 6.00pm Tuesday in the first half of the school holidays.
(ii) from 6.00pm Friday - 6.00pm Sunday in the first half of the school holidays.
(c) From 6 September 2018 - 6 September 2019
(i) from 10.00am Monday - 6.00pm Wednesday in the second half of the school holidays.
(ii) from 6.00pm Thursday - 6.00pm Sunday in the second half of the school holidays.
(d) From 6 September 2019 - 6 September 2020
(i) from 10.00am Monday - 6.00pm Sunday in the first half of the school holidays on even numbered years
(ii) from 10.00am Monday - 6.00pm Sunday in the second half of the school holidays on odd numbered years.
(h) During the long summer school holidays as agreed between the parties in writing and. in default of agreement:
(a) From 6 September 2016 - 6 September 2017
(iii) from 10.00am Monday - 6.00pm Tuesday i n the third, fourth and sixth week of the school holidays.
(iv) from 6.00pm Friday - 6.00pm Saturday in the in the third. fourth and sixth week of the school holidays.
(e) From 6 September 2017 - 6 September 2018
(iii) from 10.00am Monday - 6.00pm Tuesday in the first, second and fifth week of the school holidays.
(iv) from 6.00pm Friday - 6.00pm Sunday in the first, second and fifth week of the school holidays.
(f) From 6 September 2018 - 6 September 2019
(iii) from 10.00am Monday - 6.00pm Wednesday in the third, fourth and sixth week of the school holidays.
(iv) from 6 .00pm Thursday - 6.00pm Sunday in the third, fourth and sixth week of the school holidays.
(g) From 6 September 2019 - 6 September 2020
(iii) from 10.00am Monday - 6.00pm Sunday in the first, second and fifth week of the school
holidays on even numbered years
(iv) from 10.00am Monday - 6.00pm Sunday in the first, second and fifth week of the school holidays on odd numbered years.
Or as such further access times as the children request.
4. The parties spend special occasions with the children as agreed between the parties in
writing and, in default of agreement:
(a) The parties spend time with the children for the Christmas period as follows :
(i) 10.00am Christmas Eve - 3.00pm Christmas Day with the wife.
(ii) 3.00pm Christmas Day - 6.00pm Boxing Day with the husband.
(iii) And all other access times are postponed
(b) The parties spend time with the children for the Easter period as follows:
(i) From 5.00pm on Good Friday until 2.00pm on Easter Sunday in all even numbered years with the wife.
(ii) From 2.00pm on Easter Sunday until 5.00pm on Easter Monday in all even numbered years with the husband.
(iii) From 5.00pm on Good Friday until 2.00pm on Easter Sunday in all odd numbered years with the husband.
(iv) From 2.00pm on Easter Sunday until 5.00pm on Easter Monday in all odd numbered years with the wife.
(c) In the event that Father’s Day falls on a day on which the children are not spending time with the husband pursuant to these Orders, then the husband spend time with the children from 5.00pm on the Eve of ‘s Day, until 7.00pm on Father’s Day.
(d) In the event that Mother’s Day falls on a day on which the children are not spending time with the Wife pursuant to these Orders, then the Wife spend time with the children from 5.00pm on the Eve of Mother’s Day. until the commencement of school on the following Monday (or 9.00am if not a school day)
(h) In the event that either of the children’s birthdays or the husbands birthday falls on a day on which the children are not spending time with the husband pursuant to these Orders, then the husband will spend time with the children as agreed between the parties in writing and failing agreement as follows
(i) from the conclusion of school until 7.30 pm on a school day; or
(ii) between 3 .00pm and 7 .30pm on a non school day.
(i) In the event that either of the children’s birthdays or the wife's birthday falls on a day on which the children are not spending time with the wife pursuant to these Orders. then the wife will spend time with the children as agreed between the parties in writing ad failing agreement as follows:
(i) from the conclusion of school until 7.30 pm on a school day; or
(ii) between 3.00pm and 7.30pm on a non school day.
5. That both the husband and the wife will have telephone Skype or any other communication with the children at all such times which are suitable to the childrens routines and the children will be at liberty to communicate with either parent at all such times as the children express a wish to do so and the parent with whom the children are then spending time shall facilitate the communication and afford the children privacy during that conversation.
6. For the purpose of these Orders, changeover will occur at a location as agreed between the parties in writing and in default of agreement at:
(a) (omitted) supermarket at (omitted) in (omitted)
(a) any other locations as agreed between the parties in writing.
7. Each of the parties at all times:
(a) Keep the other party informed of his/her contact details within 14 days of any change occurring. including any change to a residential address, landline or mobile telephone number and email address.
(b) Keep the other party informed of names and addresses of treating medical or any other allied health practitioner/s. including psychologists and counsellors who treat the children and authorise such practitioner/s to provide the other party with all information that they are lawfully able to provide to parents about the children.
(c) Inform the other parent as soon as reasonably practicable of any medical condition. significant health issue or significant illness suffered by the children and authorise any treating medical practitioner/s to release information concerning the said condition, health issue or illness to the other parent.
(d) Authorise the principal of the school/s attended by the children from time to time to provide to the other party all information ordinarily provided by the school/s to parents of students at the cost of the party (if any).
(e) Are at the liberty to attend at the children's school/s for all events that are routinely attended by parents including. but not limited to. parent teacher interviews, sporting events, school productions and extra-curricular activities.
(f) In form the each other parent of full particulars of all or any person living with either parent.
8. That the Wife and Husband, their servants and or agents be and are hereby restrained by injunction from removing or attempting to remove the children from the Commonwealth of Australia for a period of 3 years.
9. That the Federal Police place the names of the Children on the Airport Watch List at all points of International Arrivals and Departures in Australia for the purpose of preventing the removal of the Children from Australia in breach of these Orders for a period of 3 years.
10.That both parties. their servants and agents. be and are hereby restrained by way of injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or member of their family or the children.
11.Any other Orders the Honourable Court may see fit.
Property
12. That the Honourable court make a 75/25% split of all non-superannuation assets in favour of the wife.
13. Within 7 days of the date of these Orders, the parties do all such acts and things, and sign all such documents as may be required to transfer the Insurance payout money of $15,077.00 held in the (omitted) bank account to the children. This money is to be placed in a high interest account and not to be withdrawn until the children are 21 years of age.
14. That there be a 50/50 Superannuation Split.
The documents relied upon by the wife are as follows:
a)Amended Response filed to September 2016;
b)Affidavit of wife filed 6 May 2015;
c)Affidavit of wife filed 12 April 2016;
d)two Affidavits of wife filed 29 August 2016;
e)Affidavit of wife filed to September 2016;
f)wife’s Outline of Case filed 5 September 2016.
The wife gave evidence and was cross-examined. Her evidence was often very argumentative and loquacious. She sought to justify her actions and infrequently accepted responsibility for her behaviour. She raised her voice, became angry and exhibited a lack of control of her emotions. She also pointed at the husband and counsel for the husband. She seemed to be overly focused on her narrative of why the husband left the relationship, and as she perceived it, abandoned herself and the children. She was also very focused on her perception that she was the victim of family violence and that there was a real need to protect the children from their father.
On the last day of the four-day hearing, approximately 25 minutes after the recommencement of cross-examination, the wife had an extraordinary outburst. She raised her voice when answering questions put to her by counsel for the husband about her future attendance at joint counselling. She then commenced to justify her refusal to attend, in an agitated manner. She professed to apologise for yelling and then spontaneously fled from the witness box. She then ran to the door of the court, and flung herself on the ground in front of the door, prior to getting up and leaving the court.
I adjourned the court to enable the wife to compose herself and after a short break she returned to the court and cross-examination recommenced. She was asked whether she required the support of any of the court network assistance and whether she required any further time to compose herself. She declined assistance and then appeared to be able to answer questions when being cross-examined.
I find the wife attempted to give truthful evidence, however her view of past events was influenced by her unwavering conviction that she was a victim of the husband and that she had little part in accepting responsibility for her actions.
The family consultant who had prepared all three s.11F assessments, Ms. Ms M, was cross-examined by that the wife, and counsel for the husband. Ms M’s evidence is further considered in this judgment. I found her evidence to be thoughtful, professional and thoroughly insightful. She had the additional benefit of having observed the family on three separate occasions. Her evidence was of great assistance.
Preliminary matters
On the last day of the hearing at the conclusion of evidence of the family consultant, I made orders providing for both parties to file and serve final written submissions. The wife advised me that she was content to do so. The orders made provide for the husband to file and serve his submissions prior to the wife, which would enable the wife to have a better understanding of how to prepare a final submission.
The order of 8 September 2016 provided for the husband to file his written submissions by 29 September 2016 and the wife to file her written submissions by 18 October 2016 with the husband to file a Response by 25 October 2016.
On 19 October 2016 an email was forwarded to my chambers by the husband’s solicitor extending the wife’s time to file her submissions to 20 October 2016. The wife did not comply with the extension of time and has not filed any written submissions.
The morning after reserving my decision the wife had forwarded a letter to my Chambers seeking a further urgent s.11F conference, which would be the fourth such conference.
As the wife was self-represented I considered the letter to be an application to adduce further evidence, notwithstanding that evidence had been concluded.
The matter was listed for 9:30 AM on 14 September 2016, and I arranged for the family consultant, Ms M to be available.
Both the wife and counsel for the husband were permitted to cross-examine Ms M about the necessity and desirability of a further family report. The wife cross examined Ms M however Counsel for the husband chose not to do so.
Ms M’s evidence was consistent with the evidence she gave during the hearing which was that there was no necessity for further assessment or a family report.
At the conclusion of Ms M’s evidence and after hearing submissions from both parties, I determined that it was not in the children’s best interests to order a further s.11F conference and memorandum and or report to the court. I delivered oral reasons for my decision.
Issues in dispute
The following issues are in dispute between the parties:
a)Whether the wife should have sole parental responsibility for the children, or whether there should be an order for equal shared parental responsibility;
b)The time the children should spend with their father;
c)Whether the children should be placed on the airport watchlist;
d)Whether the wife should be restrained from changing the children’s names, although neither party was cross-examined about this issue.
The Applicable Law
Part VII of the Family Law Act 1975 (Cth) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60 CC(2) of the Act provides that:
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.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will firstly consider the primary considerations of the act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
The husband is of the view that it is beneficial for the children to have a meaningful relationship with him.
The wife asserts that she is also of the view that is beneficial for the children to have a meaningful relationship with their father. I have some concerns about the sincerity of her professed view.
The family consultant Ms M, during cross examination, agreed that it would be beneficial for the children to have a meaningful relationship with their father.
Ms M also expressed concerns about the wife’s limited encouragement of the children’s relationship. In response to a question by the wife that she had had a positive discussion with the children about seeing the husband, Ms M’s evidence was:
“So on – on one had that could be seen as supportive. I think the issue that I was referring to was really that it was only on the mother’s terms, so it should progress only as she saw that it should and not move beyond that at a rate that perhaps the father or other professionals were…”[3]
[3] Page16 of the Transcript 8 September 2016 at lines 4 to 8
In relation to the wife’s capacity to facilitate a relationship, Ms M said:
“There’s a – almost a contradictory presentation with the mother in some regards. She is very affable and pleasant, at – at interview very cooperative, can present as quite insightful around the children’s needs, but referring to what I mentioned before, it – it – there was a sense that it had to be on the terms that she felt were appropriate, and anything beyond that she found exceptionally challenging.”[4]
[4] Page 22 of the Transcript 8 September 2016 lines 42 to 44
Her Honour, Justice Brown, in Mazorski v Albright[5] considered “meaningful relationship”. At paragraph 26, Her Honour said:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[5] Mazorski v Albright [2007] FamCA 520
I am also of the view that it is in the children’s best interests for them to have a meaningful relationship with both parents.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Both parents have filed a Notice of Risk.
The husband’s Notice of Risk was filed on 20 February 2015. The notice does not allege that a child to whom the proceedings relate has been abused, or is at risk of being abused.
Paragraph 3 of the Notice of Risk alleges that there is a risk of family violence by a party to the proceedings. The risk is particularised and, in summary, states that from 2010 until separation, the wife has committed family violence against the husband. The Notice refers to an incident which occurred in October 2011, when it is alleged the wife physically attacked the husband during an argument, and a further incident which occurred in July 2013, when it is alleged that the wife physically attacked the husband and threw a cup of tea at him. The incident which occurred in July 2013 was reported to the police.
Paragraph 4 of the notice does not refer to any other factual circumstances whereby the husband alleges a risk is posed to the children.
The wife’s Notice of Risk was filed on 6 May 2015. The notice does not allege that a child to whom the proceedings relate has been abused or is at risk of being abused.
Paragraph 3 of the Notice of Risk alleges that there is a risk of family violence by a party to the proceedings. The risk is particularised by reference to paragraphs 7 to 30 of the wife’s affidavit which was filed contemporaneously with the notice of risk.
Much of this evidence refers to allegations of alleged physical family violence. The most significant examples of this are considered at paragraphs 126 to 151 hereof.
Paragraph 4 of the notice does not refer to any other factual circumstances whereby the wife alleges a risk is posed to the children. In particular, at paragraph 4 (c), the wife does not allege that a child is at risk because a party to the proceedings suffers a serious parental incapacity.
Not unusually, the allegations contained in each of the notices of risk are remarkably similar.
The wife presented her case on the basis that the children were scared of the husband and in particular his unpredictable and erratic moods. This escalated during the course of the trial, with the wife eventually alleging that the children were at risk in terms of their emotional well-being and safety and required protection from psychological or physical harm.[6]
[6] Paragraph 7 of the wife's Affidavit filed 13 September 2016.
The evidence of the family consultant, which is referred to in this judgment was not consistent with these concerns of the wife.
For the reasons set out in this judgement, I do not find that the children are at risk from physical or psychological harm, or being subjected to, or exposed to, abuse or family violence, when in the care of their father.
The additional considerations are set out in s.60CC (3) of the act. I will now consider the additional considerations.
Section 60CC(3)(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
X is aged 14 years and Y is aged 11 years. The children have attended for a s.11F assessment on three occasions, namely 15 May 2015, 28 October 2015 and 6 April 2016. Each of the assessments was carried out by Ms M, family consultant.
It is unusual in the context of the family law disputes for children to be assessed on three separate occasions by the same family consultant over an extended period of time.
The wife is critical of Ms M’s capacity to ascertain the views of the children, given the limited nature of the assessments. In response to cross-examination, Ms M’s evidence was that the children’s views have been adequately canvassed and that a further assessment or family report would not assist.
I accept that Ms M has had appropriate opportunity to ascertain the views of the children, and that the children’s views have been accurately represented by her in all three reports, and her oral evidence.
The children’s views were succinctly stated by the family consultant, when being cross-examined by the wife. In response to a question whether X’s alleged fear of his father would have an impact on progressing the time the children spent with him, Ms M replied:
“I think this has been the children’s position since I first met them, so at every stage they haven’t been ready. They have consistently used that phrase, so initially it was, “We’re not ready to see Dad”, and then it was, “We’re not ready to spend more time with Dad”, and then it was, “We’re not ready for overnights with Dad”.”[7]
[7] Page 9 of the Transcript 9 September 2016 at line 46.
The children’s views need to be seen in the context of two matters. Firstly, whether the views of the children are independent of their mother’s view and secondly, how the children have actually managed the progression of time with their father, notwithstanding their purported views.
The husband contends that the children’s views, as expressed to the family consultant are heavily influenced by their mother. In particular, he contends that:
a)the wife has conveyed her feelings/emotions about the husband to the children; and
b)the children do not truly have any objection to spending substantial and significant time with the husband, rather they feel they cannot positively elect to do so for fear of disappointing the mother.[8]
[8] Husband's Outline of Case document at page 5.
The evidence family consultant observations of the children are consistent with the husband’s view.
The first Child Inclusive Conference Memorandum, dated 8 July 2015 states[9]:
“Ms Wilcox was also aware, however, that there was an element of the children’s decision not to see their father, which related to their attempts to protect her.”
Y described that her mother’s body language becomes “a bit weird” when she says she can spend time with her dad. Y would feel “a little bit” worried about her mother if she was to spend time with her father.”[10]
“X thought his mother was “very sad about dad leaving... He is worried about his mother.”[11]
Their exposure to their mother’s grief and narrative about the separation cannot be discounted as having had a significant impact on the current views and inability to enjoy their relationship with their father. They have developed a view that Ms Wilcox requires their support.”[12]
[9] Child Inclusive Conference Memorandum prepared by Ms M 8 July 2015 at page 2.
[10] Ibid at page 3.
[11] Child Inclusive Conference Memorandum prepared by Ms M 8 July 2015 at page 3.
[12] Ibid at page 3.
The second Child Inclusive Conference Memorandum, dated 28 October 2015 states[13]:
“Whilst the children appear to feel more assured about the mother’s improved well-being X in particular, feels the need to provide his mother with comfort and there can be little doubt that this impacts on his ability to enjoy the time he spends away from her.”
“The children’s exposure to their mother’s grief and narrative about the separation cannot be discounted as having a significant impact on their current views and their inability to enjoy a relationship with their father. They developed a view that Ms Wilcox required their support.”[14]
“Ms Wilcox is allowing the children to dictate the terms of their relationship with their father in an attempt to redress her own alleged experience of disempowerment in the relationship. Ms Wilcox recognise that this reflects her own issue, not the children’s, and this may be an area in which she needs to do some therapeutic work.”[15]
[13] Child Inclusive Conference Memorandum prepared by Ms M, 28 October 2015 at page 4.
[14] Ibid at page 4.
[15] Ibid at page 3.
The third Child Inclusive Conference Memorandum dated 11 April 2016 states:
“Similarly, Ms Wilcox’s communication to the children regarding her ongoing distress and anger towards Mr Wilcox does little to assist the children in their relationship with their father.”[16]
[16] Child Inclusive Conference Memorandum prepared by Ms M, 11 April 2016 at page 4.
In response to cross-examination by the wife about the children’s response to their mother’s allegations of ‘domestic abuse’, Ms M responded:
“but X’s narrative was more about, “Poor Mum, and Mum’s not coping, and Dad has left Mum in this state of grief, and I feel for Mum and I worry for Mum.”[17]
[17] Page 14 of Transcript 9 September 2016 at line 36.
It was also apparent from the wife’s often florid and emotional presentation in court that it would be virtually impossible for her to refrain from expressing her views to the children in a very emotive and dramatic fashion. There is no doubt that she views herself and the children as a close family unit and they could not be anything other than acutely aware of her views towards the husband and her express concerns about them spending significant time with him.
In terms of whether the children’s alleged views have prevented them from coping with increased time with their father, Ms M’s evidence is extremely helpful.
Her evidence, when being cross-examined by the wife was that she understood that despite the protestations of the children that they were not ready to progress time, time had progressed and the children had managed that progression of time. As a result of that, her evidence was that she would have a greater level of confidence that the children would manage some increased overnight time.
Neither parent gave evidence that there had been any major new concerns with the progression of time between the husband and the children. In fact, the wife, when cross examining Ms M, acknowledged that it was very important that time between the children and their father increased. That position is entirely inconsistent with the wife’s perception of the children’s views.
I find that the children’s views have been significantly influenced by their mother and the circumstances in which she finds herself. I also find that the children’s views have not inhibited their capacity to extend and enjoy the time they spend with their father.
Accordingly, despite the age of the children. I do not place great weight on their views.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
Both parents agree that the children’s relationship with their mother is clearly close and loving.
The husband’s evidence is that prior to separation he enjoyed a good relationship with both children, although his parenting style was distinctly different from that of the wife’s. He perceived himself as the more authoritative parent who imposed structure and discipline in the household. His evidence was that the wife was a more flexible and liberal parent, who was critical of the husband’s parenting styles.
His evidence was that during the relationship, he was involved with the children, taking a keen interest in their education and extracurricular activities. He would also go out for coffee and mud cake with Y. He immensely enjoyed both children’s company.
Y’s comments to the family consultant[18] that she recalled times that she enjoyed her father being home, albeit she enjoyed “happy dad, not grumpy dad” are supportive of this evidence. Ms M noted that:
“despite the children’s current stated feelings, they miss their father and would benefit from spending substantial time with him.”
[18] Child Inclusive Conference Memorandum prepared by Ms M 8 July 2015.
There have been obvious difficulties between the children and their father post separation. However, the husband’s evidence is that as time has progressed, the children’s relationship with him has improved and the children are now extremely happy and interactive whilst in his care.[19] The wife also agrees that as time has increased, the children’s post separation relationship with the husband has improved to a limited extent.
[19] Husband's Trial Affidavit, at paragraph 47.
The wife perceives that the children are afraid of their father and continue to be reluctant to spend time with him. She does not appear to have considered the possibility that the children’s experiences with their father might be entirely different from what they report to her or their behaviour in her presence.
In response to a question about this possible dichotomy, Ms M’s evidence was:
“Yes. So certainly what can happen for children is they sense a need to report certain events and exclude reporting positive experiences ie because it’s not met positively by the parent because they know it’s not going to be helpful or it might be hurtful to the other parent. I have no doubt that some aspects of the father’s interactions with the children are challenging for them, but perhaps not to the degree that they report or that the mother reports.”[20]
[20] Page 21 of Transcript 9 September 2016 at line 39 to 44
I find that the children’s relationship with their father has at times been strained, and that the wife’s conduct has, at times, contributed to that. However, the recent relationship between the children and their father has improved as a result of them spending more time with him, and such improvement is likely to continue. There was no evidence about the nature of the children’s relationship with any other person, and this was not an issue in the dispute.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
Participation in making decisions about major long-term issues in relation to the children
There was no evidence that during the relationship either party had failed to take the opportunity to make joint decisions about long-term issues in relation to the children. There were no disputes about education, religion or health, except that the wife alleged that the husband’s capacity to cope with Y’s asthma was less than optimal. This was denied by the husband and was not really a substantive issue of the proceedings.
The husband asserts that the wife should not have sole parental responsibility for the children and be empowered to make unilateral decisions about long-term issues in the future. This issue is referred to at paragraph 175 hereof.
Opportunity to spend time with and communicate with the children
The husband asserts that post separation the children have been denied the opportunity to spend time and communicate with him. The wife denies this assertion.
The wife is critical of the husband’s failure to comply with orders made on 15 May 2015. She questioned the husband’s commitment to spending time with the children in the future, resulting from his failure to avail himself of time with the children as prescribed by the orders.
In response, the husband’s evidence was that he was required to either rearrange or forego a number of visits, which were scheduled to take place on Tuesday afternoons, due to his work commitments. At that time the husband was working shift work, and it was not always possible to provide adequate notice to the wife of his work commitments, nor change them to enable him to comply with the orders.
The husband’s evidence is that he is now employed in a position with regular hours and providing notification to the wife of shift work arrangements will no longer be necessary.
I do not accept that the husband has deliberately failed to take the opportunity of spending time with the children. The existence of these proceedings is contrary to that proposition.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Neither parent alleged that the other had failed to fulfil their respective obligations to maintain the children. The husband is currently paying child support in accordance with an administrative assessment.
The only criticism levelled by either parent against the other was the wife’s allegation that the husband had prioritised his travel to the (country omitted) instead of being prepared to pay for a trip to the (country omitted) for Y to pursue her (hobby omitted) interests.
I find that both parents have fulfilled their obligations to maintain the children
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The husband proposes that the children will remain living with the wife and will continue to attend their current schools and extracurricular activities.
He proposes that the children will spend additional nights with him, which will be implemented on a gradual basis. He also proposes that the children will spend special occasions with him and half of the school holidays.
The husband’s proposals do not result in a significant change of circumstances for the children. The children are at an age where they are able to cope with separation from their mother.
In relation to the increase of time proposed by the husband, Ms M commented as follows[21]:
“whilst the children’s discomfort, hurt and worry is acknowledged, this should now not be viewed as an impediment to moving forward in the relationship with their father.”
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
[21] Child Inclusive Conference Memorandum prepared by Ms M, 11 April 2016 at page 4.
The husband’s evidence was that he had secured a lease for a two-bedroom apartment in (omitted) and he intended to commence living there immediately. The wife and the children continue to reside in the former family home in (omitted). Both children attend school close to their home. The driving time between (omitted) and (omitted) is approximately 40 minutes.
There was much evidence about the practicality of the husband’s proposal. In particular, whether the husband would be able to deliver the children to school each alternate Monday morning, and each Thursday morning, as proposed by him.
His evidence was that the children would need to get up at around 6 AM on each morning he was required to drive the children to school. The wife was critical of the children having to get out of bed so early. However, under cross-examination, she conceded that the children’s usual routine was that they got out of bed at 6:30 AM. The husband proposed to drive the children to school on all mornings they were in his care. He did not propose that the children would need to catch public transport to attend school. He wished to be involved in taking the children to school.
Given the respective ages of the children, there is no impediment to the children being driven to school by their father each alternate Monday morning, and each alternate Thursday morning, which will be necessitated by the orders I intend to make. Indeed the journey to school will provide an opportunity for the husband and the children to spend time together without distractions. This will be beneficial for the children, as will the husband’s involvement in their school life, and the additional time the children will be helped to spend with him.
There was no evidence about the expense of transporting the children between each parent’s home. As the husband will be responsible for delivering the children to school on two mornings each fortnight, the expense is not a relevant issue.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Prior to separation, both parents were actively involved with their children, albeit in different roles.
As previously referred to, the wife was the principle homemaker and parent, and the husband was the principle income earner for the family.
The wife was critical of the husband’s parenting of the children. She took great offence at the manner in which the husband engaged with the children, and in particular she alleged that he was aggressive, and non-responsive towards them. She seemed to overemphasise the husband’s personality in a derogatory manner and maintained that the children were hurt and emotionally vulnerable as a result of his behaviour.
She placed significant emphasis on any of many disagreements between the children and the husband, and took offence at the husband’s parenting style. There were many examples of this in her evidence. By way of example, she was critical of the husband’s attitude and comments towards X when he was eating, the husband’s restraint of X after he had punched his father in the face during a pillow fight, the husband’s lack of sensitivity towards Y when the husband travelled to the (country omitted) to attend his brother’s wedding, when he had previously said he was unable to fund a (hobby omitted) trip to the (country omitted) for Y.
In contrast, the husband was not critical of the wife’s parenting during the relationship, and referred to her as an excellent mother.
I have no concerns about the capacity of either parent to provide for the emotional physical needs of the children, except for the wife’s inclusion and enmeshment of the children in the marital dispute, and her capacity to facilitate a relationship between the children and their father.
It is therefore necessary to have clear and prescriptive orders for the children to spend time with their father.
Section 60CC(3)(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
All relevant factors have been considered.
Section 60CC(3)(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;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents impressed me as committed responsible and diligent parents. Save for the wife’s capacity to actively encourage the children to have a meaningful relationship with their father, and her inability to constrain her own feelings of loss and abandonment, I have no concerns about the attitude of the parents to the children and their commitment to them.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Allegations of family violence played a prominent part in the proceedings.
The wife alleged that she was a long-term victim of family violence perpetrated by the husband. The violence she alleges was predominantly verbal, emotional and financial. She also alleges physical violence on the limited number of occasions.
The husband alleges that the wife has perpetrated physical family violence against him on a number of occasions.
The wife’s evidence is that the husband is disrespectful and has belittled and berated her throughout the relationship. She feels very aggrieved and early this year, joined a domestic violence victim support group.
Her allegations were initially detailed in her affidavit of 6 May 2015[22].
[22] At paragraphs 7 – 30 inclusive.
My impression of the wife’s perspective is that the husband was the aggressor and initiator of disagreements and that she was effectively forced to defend herself from the husband’s behaviour, including the look in his eyes. Whilst she professed to accept some responsibility for the disagreements, her evidence was that she was very much the victim and she sought to justify her actions as responsive to unacceptable behaviour of the husband.
The husband’s evidence is that during the marriage both parents engaged in verbal disagreements and arguments, and sometimes these occurred in the presence of the children. He was truthful and candid in accepting responsibility for his participation in these arguments and expressed regret that the children were exposed to parental arguments and volatility.
Contrary to the wife’s assertions that the husband was the aggressor in the relationship, he gave his evidence in a measured and contained manner and did not lose his composure or control to any significant degree, whilst being cross examined by the wife about events that he clearly disagreed about.
I have no doubt that the relationship between the parties would have been argumentative and volatile and that the disagreements would have occurred in the presence of the children. Having observed the demeanour and behaviour of the wife over the four days of the trial, it is abundantly clear that she has difficulty in containing her emotions, particularly when stressed.
I find that both the husband and the wife were perpetrators of verbal and emotional family violence towards each other.
In terms of physical violence, both parties assert that the other has been physically violent throughout the relationship.
The wife alleges that the first such incident occurred in 1993[23]. The husband alleges that there were approximately 5 occasions between 2008 and 2010, when the wife was physically violent to him.[24]
[23] Paragraph 7 of the wife's Affidavit sworn 6 May 2015.
[24] Paragraph 6 (a) - (k) of the husband’s Affidavit sworn 5 September 2016.
There were a number of incidents of physical violence which were the subject of cross examination by each party. Each of these incidents occurred prior to final separation, and neither party has alleged that there have been any incidents of physical violence post separation. The husband’s evidence is that he does not anticipate there will be any further such incidents in the future. Furthermore, the allegations of each party were that the other had perpetrated physical violence on the other.
The wife did not provide evidence of any physical violence post separation, and I therefore am able to conclude there have not been any recent incidents of physical violence.
The incidents may be summarised as follows:
(1)17 October 2011- the (omitted) incident;
(2)October 2012- the asthma incident;
(3)22 October 2013 – the computer incident;
(4)2013 – cup of tea incident.
17 October 2011- the (omitted) incident
Both parents agree that an incident occurred shortly prior to the family travelling to (omitted) for a holiday. Both agree that the wife was in the kitchen washing dishes prior to the incident occurring. The wife alleges that the husband was continually berating her about being late and was verbally abusive. Her evidence was[25] that she could not stand it anymore and slapped the husband with an open hand.
[25] paragraph 8 of the wife's affidavit sworn 6 May 2015
Whilst being cross examined, the wife conceded that she had hit the husband on the face and had drawn blood, although she attempted to minimise it by insisting her fingernail had caught the husband’s face. Whilst giving this evidence the wife engaged in an extraordinary spontaneous display of violent slapping in the air which she said demonstrated her actions at the time. She then alleged that the husband, in response to her physical actions, grabbed her by the throat and pinned her against the wall. The husband asserts that, in response to the assault on his face, he pinned the wife to the wall with his arms but he did not grab her around the throat.
At paragraph 8 of the wife’s affidavit sworn 6 May 2015, the wife alleges that X recently told her that he saw this incident by watching through the window from the car. There was no explanation why X would spontaneously recount an incident which had occurred some 4 ½ years earlier.
In fact, the wife admitted under cross-examination that the layout of the kitchen and the placement of the windows would have made it almost impossible for the children who both parents agreed, were in the car at that time, to have observed the incident.
In her evidence, Ms M stated that the children had not reported to her that they had witnessed any specific violent incidents. That evidence is consistent with X not witnessing this incident.
The husband was remorseful and regretted the incident occurring and conceded that his actions were completely unacceptable.
The wife seemed focused on justifying her conduct because of what had occurred prior to her physically attacking the husband.
I find that both parties perpetrated physical violence on each other on this occasion and that the children did not witness this incident. The incident reflects extremely poorly on both the husband and the wife.
October 2012- the asthma incident
The wife’s evidence is that the husband spontaneously ran at her with a fist clenched, stopping just centimetres from her face, whilst Y was beside her[26]. His actions were in response to a request by her for the husband to do a domestic chore. Both parties agree that the incident took place in a bedroom and Y was in bed due to asthma.
[26] Paragraph 9 of the wife's affidavit sworn 6 May 2015.
The husband’s evidence[27] was that the wife accused him of not caring for the child appropriately during an asthma attack. He asserts that he was on one side of the bed and the wife was on the other. An argument erupted and he threw a pen at the wife and raised his fist from the opposite side of the bed.
[27] Paragraph 6 (c) of the husband's affidavit sworn 5 September 2016.
The husband’s conduct was completely unacceptable.
22 October 2013 – the computer incident
Both parties agree that during a period of separation, the wife invited the husband back to the marital home because she alleged that the computer was malfunctioning and she requested the husband to attempt to fix it. The husband asserts that there was nothing wrong with the computer and the wife used that as an excuse to have him attend the family home so that she could discuss reconciliation with him.
Both agree that they were in a room together for approximately 15 minutes when the wife was attempting to discuss the marital relationship. The husband’s evidence was that he wanted to leave the room, told the wife repeatedly, however, she prevented him from leaving by standing in the doorway and blocking his way.
The wife’s account of this incident is referred to at paragraph 10 of her affidavit sworn 6 May 2015.
She alleges that the husband. “Picked me up by my throat with his hand on my back and carried me into the bedroom and threw me onto the bed”. She asserts that X witnessed the husband forcing her back into the room and throwing her on the bed.
The husband denies grabbing the wife by the throat and that X witnessed the incident.
This incident has a similar theme to the (omitted) incident, namely a verbal argument between the parties which escalated into a physical altercation.
2013 -the cup of tea incident
The wife’s version of this incident is referred to at paragraph 21 of her Affidavit of 6 May 2015 and paragraph 66 of her Affidavit sworn 22 August 2016. The husband’s version is referred to at paragraph 6 of his Affidavit sworn 5 September 2016.
Whilst acknowledging that she threw a cup of tea at the husband, she seems to minimise her actions and justify them by alleging that “I had come to the house to try to fix my marriage, but the husband was just so rude to me”.
The wife’s conduct was completely unacceptable.
Both parties agree that the husband called the police after the wife threw a cup of tea at him and that the police attended the husband’s home.
I find that during the marriage both parties engaged in inappropriate and unacceptable verbal and physical violence towards each other and that the children are aware of the various altercations. However, neither parent alleges that any such altercations haves occurred post separation, nor do they speculate that they are likely to occur in the future.
The wife alleges that the husband’s current behaviour towards the children poses a risk to the children. This was clear from her conduct, both when asking and answering questions during the trial.
Paragraph 13 of the affidavit which she filed on 13 September 2016, in support of her application to adduce further evidence further confirms her alleged fears.
This fear or anxiety that the husband poses a threat to the children needs to be seen in the context of the hypercritical and hypervigilant behaviour of both the wife and the children.
What can, in many circumstances be viewed as unremarkable parental behaviour, has been interpreted in a manner consistent with the wife’s perception that she is a victim of domestic violence and that the children may also be at risk. An example of this is the incident pillow fighting wrestling/incident about which the husband was cross examined.
During cross examination by the wife, it was suggested to the husband that he had grabbed X’s arm and held it behind his back. This was suggestive of the husband posing a physical risk to his son. The husband’s response was that X had punched him in the face immediately preceding that incident and that his actions were an attempt to contain any further physical altercations.
There is overwhelming evidence that the wife has involved the children in the parental dispute. I find that this includes involving the children in her allegations that the husband has perpetrated violence on her. This has been recently reinforced by the wife telling the children that she commenced attending a domestic violence counselling group in early 2016.
Ms M’s evidence was that despite the wife raising concerns about the husband’s mood swings and allegations of physical violence against him, there was no immediate risk of harm to the children whilst in the husband’s care.
I agree with Ms M’s evidence and find that the husband does not pose a risk to the children’s welfare.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
There are no current intervention orders affecting either parent or the children. To the credit of both parties, neither parent has sought to obtain an intervention order in the past.
Section 60CC(3)(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
The husband and wife finally separated in August 2014. Since that time there has been an ongoing dispute about the arrangements for the children to spend time with their father. The children have been embroiled in the dispute and have attended for assessment with a family consultant on three occasions, 15 May 2015, 12 October 2015 and April 2016. They have clearly been involved in and are aware of the proceedings and parental conflict.
The family consultant in her evidence stated that the children would be relieved once a final decision has been made and the parents inform them of the proposed arrangements for them to spend time with their father.
Her evidence was that the children were robust and had been able to cope with the increasing periods of time that they had spent with their father, despite their protestations that they did not want to spend time with their father.
Ms M was confident that the children would cope with increased overnight time and agreed that an increase of time with the husband should occur rapidly and in increments of an additional night.
I am of the view that the children need finality as do the parents, and prescriptive orders providing for an increase in overnight and holiday time with their father will achieve this result.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
The wife’s capacity to encourage a relationship between the children and the husband
The wife’s evidence included many perceived deficiencies in the husband’s parental behaviour and the fact that the children continue to be critical of the husband’s behaviour. The wife and the children were hypercritical of the husband. An example of this was the alleged exuberant behaviour of the husband when he attended the children’s extra-curricular activities. Another example was the husband’s reaction when X’s behaviour escalated during a play wrestle which resulted in him punching his father in the face. The wife was highly critical that the husband had attempted to restrain X by placing one of the child’s arms behind his back.
Ms M’s evidence on this issue was as follows:
“There was almost an overstatement of a lot of – a lot of the issues, and that – my understanding is that that is probably – the underlying issue is anxiety-based with the mother. I obviously haven’t done an assessment of her in that way, but her presentation was often highly anxious, just contained in terms of her emotion and – and grief, and perhaps overstated or in her own mind had created a scenario that didn’t fit with the reality of the situation.[28]”
[28] Page 21 of Transcript of 8 September 2016 at line 23.
The wife asserts that she has continued to facilitate the children’s relationship with their father and in particular states as follows:
“I have explained the children that I am supportive of any time they want to spend with their father and that the natural progression is to extend access times”[29]
[29] Affidavit of wife filed 29 August 2016 at paragraph 13.
However, during her oral evidence. The wife produced audio recordings of the children refusing to telephone their father. On Father’s Day 2015. The children, in response to being asked whether they wanted to make the call, expressed opposition to calling their father. The tone of the wife’s questioning of the children was not encouraging. I have significant concerns about the forensic value of recording the children and presenting the recording as evidence. The wife did not appear to appreciate that it was completely inappropriate to record the children in this manner.
The wife was unable to support the proposition that the children should spend mid-week overnight time with the husband, stating that it would be disruptive to them. This was in contrast to her admissions during cross-examination that it would be beneficial for the children to participate in everyday activities with their father, including the husband being involved in the children’s educational and schooling activities.
Equal shared parental responsibility
Section 61DA provides, 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. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(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.
(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.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1) … if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) … if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Parental Responsibility
The wife seeks an order for sole parental responsibility of the children. Such an order is subject to her notifying the husband in writing of any proposed decision, and taking into account any written response received from the husband relating to his views about the proposed decision.
The wife also seeks that she be restrained from changing the children’s (or either of them) names without the written consent of the husband.
The husband seeks an order that both parents have equal shared parental responsibility.
Both parties agree in their respective Notices of Risk[30] that the children subject to the proceedings have not been abused by any person who is relevant to the proceedings. They also agree that there are no other factual circumstances which they allege pose a risk to a child, the subject of the proceedings.
[30] Husband's Notice of Risk filed 20 February 2015 and Wife's Notice of Risk filed 6 May 2015.
The alleged incidents of family violence which are referred to by the wife in her numerous affidavits occurred prior to separation. Neither party alleges that the other has ever committed acts of family violence against the children, although it is the wife’s case of the children are fearful of the husband.
Having considered the evidence, and in particular the evidence in relation to family violence, which is discussed at paragraphs 146 - 160 hereof, I am of the view that the statutory presumption of equal shared parental responsibility applies in this case. I am not satisfied that there is evidenced to rebut the presumption.
An order for equal shared parental responsibility requires the parents to cooperate in making long-term decisions about current and future education, major health issues, religion and cultural upbringing, the child’s name and any change in the child’s living arrangements which will make it significantly more difficult for the child to have a relationship with the other parent. The husband has no confidence in the wife’s capacity to make unilateral long-term decisions which would be inclusive of his role as a parent. I share those concerns.
The husband is a parent who has consistently sought orders enabling him to have a full and beneficial relationship with each of the children. He has actively sought to be involved in their lives, including being involved in their education and sporting and extra-curricular activities. He considered himself a committed and devoted parent who had historically involved himself in every aspect of the children’s lives, subject to his work constraints. He did acknowledge that his over exuberant behaviour at X’s (hobby omitted) matches may have caused X some embarrassment. He was however prepared to modify that exuberance.
The wife has been a caring and committed parent towards the children, albeit lacking capacity to facilitate the children’s relationship with their father. She has also made appropriate decisions for the children in terms of education and health. Subject to the wife’s capacity to facilitate time between the children and their father, I do not have any concerns about either parent making long-term decisions for the children in the future.
There was much evidence about the capacity of the parents to facilitate communication. The wife’s view was that the husband was often, non-responsive and would not engage in the decision-making process with her. The husband’s perspective was that the wife frequently engaged in abusive and derogatory communications, primarily via text messages and email and often about the breakdown of the marital relationship and that he was not inclined to respond to such communications. The husband’s counsel tendered a number of such emails, and they are exhibits H8.
The wife, during cross-examination suggested that she would like to implement a communication book to assist communication between the parties, which I consider a positive step towards parental communication.
I also propose to order that both parents, if they have not previously done so, undertake and complete a post separation parenting course to assist their communication skills.
It is not uncommon for parents who are embroiled in litigation to be unable to communicate and to fail to reach agreement. This is no reason to exclude a competent parent from the decision-making process about their children’s lives. It is incumbent on these two parents to improve their communication and cooperation skills in relation to issues pertaining to the children.
It is a very serious matter to exclude the rights and responsibilities of parental responsibility from a parent. His Honour Murphy J stated in Lennon & Lennon [2011] FamCA 571:
The exercise of discretion in favour of excluding one parent from consultation and decision-making in respect of major long-term issues through child is, it seems to me, a very significant step being a very serious interference with the fundamental rights of a person. There is no doubt that the exercise of that discretion ought to be resolved in favour an outcome which is seen to be in the best interests of the child. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration, nor that the legitimate fundamental rights of a parent are irrelevant.
The parents are clearly able to communicate via text and email and I intend to order that they also utilise a communication book. The current problems have arisen, to a significant extent, from the wife’s perception of the circumstances surrounding the breakdown of the relationship, and the injustices to her, resulting from that. Both parents are responsible and committed to the children and I have no doubt that they both will make appropriate decisions for their children, if they are jointly required to do so. Accordingly I intend to make an order for equal shared parental responsibility.
Statutory Pathway
Having determined that it is in the best interests of the children that there be an order for equal shared parental responsibility, I am now required to address the statutory pathway is set out in s.65DAA (1) – (5).
Firstly, I will address the children living equal time with both parents.
Neither party in their respective application and response have sought an order that the children live equal time with both parents. There was no specific evidence adduced on behalf of either party or cross examination by either counsel for the husband in this regard.
In his outline of case document[31] the husband states that he acknowledges that it is in the children’s best interest remain living with the wife. The wife also seeks that the children live primarily with her. Having regard to the application and response of the respective parents, I do not find on the evidence before me that it is in the children’s best interests to live equal time with each parent
[31] Filed on 1 September 2016 at page 4.
Secondly I will address whether an equal shared care arrangement is reasonably practicable. Obviously, such an arrangement would not be practicable given the current geographical constraints of the party’s homes.
The wife and the children live in the former family home in (omitted) and both children attend school in that area. The husband’s evidence was that he would be entering into a lease for a two-bedroom apartment in (omitted) which is on the other side of the city to (omitted). I find that it is not reasonably practicable for the children to live equal time with each parent.
Accordingly I do not intend to make an order that the children live equal time with both parents.
I am now required to determine whether it is in the children’s best interests that they spend substantial and significant time with the husband, who is the non-residential parent.
The proposal of the husband provides for the children to spend substantial and significant time with him. The proposal of the wife, provides for the children to spend very limited time with the husband, and I have concerns that her proposal cannot be considered substantial and significant time.
Their Honours Ainslie–Wallace and Ryan JJ, in Ulster & Viney[32] at paragraphs 84 to 88, considered the meaning of substantial and significant time.
[32] Ulster & Viney [2016] FamCAFC 119.
At paragraph 87:
[87] In Eddington and Eddington (No.2) (2007) FLC 93–349, the Full Court determined the manner in which these provisions operate. The Full Court said (at 81,997):
54. It is evident that, although orders for time to be spent with a parent fall literally within the provisions of section 65DAA(3)(a)(b) and (c), that does not mean that the orders thereby provide for substantial and significant time within the terms of the legislation. It is equally evident that orders made for time spent cannot satisfy the requirements of substantial and significant time unless they literally meet all of the requirements of those provisions. What constitutes substantial and significant time will vary from case to case. What is substantial and significant time in one factual context may well not be in another. Whatever their terms, orders for substantial and significant time will have in common that they literally comply with each of the requirements created by s 65DAA(3). There is no issue that the orders under consideration did so comply.
At paragraph 88:
[88] Thus the test as to whether orders make provision for substantial and significant time is in two parts. The first is mandatory and requires compliance with each element of s.65DAA(3). The second requires the exercise of discretion in accordance with s.65DAA(4). If the first question is answered in the negative, the orders cannot be for substantial and significant time. However, if that question is answered in the affirmative, it is necessary to consider whether in the factual context of the case the time is both substantial and significant. It follows that a finding pursuant to s.65DAA(4) in one case is likely to be irrelevant to the resolution of that issue in a different case (see Eddington (No 2) at [66]).
The proposals of the wife, as set out in her Amended Response provides for the husband to spend extremely limited time with the children.
I note that parenting orders were made by consent by His Honour Judge Burchardt on 13 April 2016. Paragraph 3 (e) (ii) of those orders, provides for the husband to spend time with the children each alternate weekend from 5 PM Friday until 5 PM Sunday, commencing 17 September 2016. Additionally, paragraph 3 (e)(i), provides for the children to spend time with the husband each alternate Monday from 5 PM until 7:30 PM.
The wife’s proposal at trial resiled from that position and she sought to reduce the children’s time with their father. She proposed they would spend time with him from 6 September 2016 until 6 September 2017, each alternate weekend from 5 PM Saturday until 5 PM Sunday, and each alternate Monday from 5:30 PM until 8 PM. Thereafter she proposed an increase of weekend time in increments of two hour increases each six months, with the Monday time to remain constant. She did not propose that the children should spend time on alternate weekends, as provided by the 13 April 2016 orders, until March 2019. At that time X would be almost 17 years old and Y would be 14 years old.
The wife’s proposal does not comply with the test as set out in Eddington. Firstly, in my view it does not comply with each element of s.65DAA(3) and secondly, in the factual context of the case the time is far short of substantial and significant.
In terms of reasonable practicality, the parties live some distance from each other. The wife and the children living in (omitted) and the husband intending to live in (omitted).
It was the husband’s evidence that he would need to get the children up at approximately 6 AM in order for them to attend school at the required time. The wife’s evidence was that the children generally get up at 6:30 AM. In order for the children to attend school from the husband’s home, they would need to get up proximally 30 minutes earlier at their mother’s home. I do not find that to be an impediment to the children spending time with their father, mid-week and being delivered to school on Monday morning each alternate weekend.
I find that the parents would have the capacity to implement the spend time with arrangement as proposed by the husband particularly if the children are returned to their respective schools on Monday morning and on the mid-week morning following overnight time. The only communication the parents would be required to have with each other would be the arrangements for collection of the children at 6 PM and each alternate Friday as proposed by the husband. The children are at an age where they are able to take some responsibility for transition between the respective parent’s households, including transporting clothes, school requirements and sporting equipment.
Whilst the communication between the parties is currently strained, I do not find that the current lack of communication is an impediment to the children spending time with their father along the lines proposed by him.
For the reasons set out in this judgement, I determine that the most appropriate arrangements for the children are for them to spend time with their father each alternate weekend, increasing from the orders of 13 April 2016 by one night per month, until the children spend time with their father each alternate weekend from Friday until Monday morning. In addition, the children should spend time with their father overnight one night in the alternate week. In the event the husband moves closer to the children’s home, then additional overnight time, should take place each week. I intend to make orders incorporating this arrangement.
Overseas Travel
The wife seeks an order that the children be placed on the airport watchlist to prevent them leaving Australia.
The husband seeks orders that he be permitted to travel with the children to countries which are “Hague” countries, subject to providing the wife with copies of proposed airline tickets, itineraries, contact details and comprehensive travel insurance policy.
He also proposes that such travel, take place during school holiday periods during periods that the children would otherwise spend with the travelling parent.
The basis of the wife’s application for the children to be placed on the watchlist is that she does not trust the husband, and as she considers him a flight risk.
The husband’s evidence in support of his application was that he is a long-term resident in Australia, has been continuously employed for many years with his current employer and has recently signed a 12 month lease. Additionally, during the marriage the family had travelled to (country omitted), (country omitted), and (country omitted) where members of the paternal family live.
He submits that it is in the children’s best interests to have the opportunity to travel overseas to experience different cultures and to visit extended paternal family members.
I note that the wife is critical of the husband for failing to fund a trip to the (country omitted) for Y to pursue her (hobby omitted) activities. I can infer from this criticism that the wife has no objection to the children travelling overseas, save that she considers there is a risk that the husband would not return with the children.
The wife did not provide any evidence that the husband has acted in any fashion which would give rise to any concern that he would attempt to internationally abduct the children and fail to return to Australia. Indeed, there is no evidence at all, which would warrant the children being placed on the watchlist.
I intend to make orders that the wife hold the children’s passports and in the event the husband wishes to travel with the children, he will be required to provide the relevant notice and information to the wife to obtain her consent. Unfortunately, if agreement is unable to be reached about overseas travel, then an application will need to be made to the court.
Change of Name
The wife seeks an order that in the event she wishes to change the children’s names, that she be restrained without the written consent of the husband.
During the trial there was no oral evidence or cross-examination by either party about this issue.
As I intend to make an order for equal shared parental responsibility, the wife will need to consult with the husband and obtain his consent, in the event she wishes to pursue a change of name for the children.
Costs of Wife’s Application to adduce further evidence
As referred to at paragraphs 25 to 31 hereof, on 9 September 2016 the wife forwarded a letter to my Chambers requesting a further Child Inclusive Conference with Ms M or another family consultant.
I considered this letter to be an application by the wife to adduce further evidence, notwithstanding that evidence had been concluded on 8 September 2016 and my decision had been reserved, pending receipt of written submissions by both parties.
On 14 September 2016 the wife’s application was listed for hearing, and as previously referred to, her application was dismissed. Counsel for the husband’s made an application for the husband’s costs of that application to be paid by the wife. As the wife was self-represented I determined that submissions for costs should be included in the written submissions of the parties, to enable the wife to adequately respond to cost submissions made on behalf of the husband.
The husband’s submissions in relation to costs are set out at paragraphs 88 to 104 of the husband’s written submissions filed on 29 September 2016.
Legal principles applicable to costs
Section 117(1) of the Family Law Act1975 (“the Act”), states, subject to the provisions of s.117(2), that the general rule in proceedings in this court, is that each party to proceedings, shall each bear his or her own costs.
Section 117 (2) of the Act provides as follows:
If, in proceedings under this act, the court is of the opinion that there are circumstances that justify it in doing so, the court may subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Section 117(2A) of the Act provides, that in considering what order (if any) should be made for the payment of costs, the court shall have regard to the following matters:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
In the Marriage of I (No.2) (1995) FLC 92-625, the Full Court said that the relevant matters in s.117(2A):
“must all be taken into account and/or balanced in order to determine whether the overall circumstances justified the making of an order for costs”
Section 117(2A) (a) the financial circumstances of each of the parties
The husband is an (occupation omitted) and earns an annual income of $95,000. He pays child support to the wife of $2300 per month pursuant to an informal agreement. His evidence is the payment exceeds the amount which he would be required to pay pursuant to an administrative assessment of child support.
The wife has completed a (course omitted), however, she has not obtained full-time employment and is currently reliant on Centrelink benefits.
On 5 September 2016, the first day the matter was listed for trial, to their credit, the parties resolved the outstanding property application.
The orders which were made by consent on that day (“the 5 September 2016, orders”) provide for the husband to transfer to the wife, all of his interest in the former matrimonial home Property C, and further, for the husband to discharge the mortgage secured against the property. The wife is therefore the proprietor of an unencumbered property in which she and the children reside.
Additionally, paragraph 4 (e) of the 5 September 2016 orders, provide for the wife to receive a lump sum of $20,000 from the settlement of the sale of the property situated at Property D.
The 5 September 2016 orders provide for the wife to retain her motor vehicle and for an equalisation of the husband’s superannuation entitlements. The orders effected a division of the parties in non-superannuation assets, 70% of the wife and 30% to the husband.
Section 117(2A)(b) whether any party is in receipt of legal aid
There is no evidence before me that either party is in receipt of legal aid.
Section 117(2A)(c) The conduct of the parties to the proceedings in relation to the proceedings
The husband’s closing submissions assert that the wife’s conduct warrants an order for costs being made against her. It is asserted by the husband[33] the relevant circumstances are as follows:
i)there were several occasions on which the wife could or should have applied for a further child inclusive conference, including the two court events prior to the final hearing and during the pre-four days of the trial;
ii)the wife cross-examined the family consultant Ms M for over an hour during the course of the trial, and should have cross examined Ms M about the desirability of a further assessment or family report.
[33] At paragraph 99 of the Husband's Written Submissions.
I agree with the submissions of the husband that the wife had plenty of opportunity to raise this issue with the court.
Section 117(2A) (d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
This is not a relevant consideration.
Section 117 (2A) (e) whether a party to the proceedings has been wholly unsuccessful
As the wife was unrepresented, I treated her application as an application to adduce further evidence, so that she could be heard in open court about this issue. The matter was listed on 14 September 2016 and after hearing submissions by the wife, counsel for the husband, and allowing the wife to cross-examine the family consultant, I determined that the application should be dismissed. The wife was wholly unsuccessful in her application.
Section 117 (2A) (f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer
The husband’s closing submissions[34] state that on 14 September 2016 the husband solicitors forward a letter to the wife inviting her to withdraw her request to the court for a further child inclusive conference. That letter put the wife on notice that if she did not withdraw her application, the cost would be sought against her on an indemnity basis.
[34] At paragraph 102 of the Husband's Written Submissions.
The wife did not withdraw her application and the matter proceeded before me on 14 September 2016.
Section 117 (2A) (g) any other matters the court considers relevant
Any other relevant matters are set out in this judgement.
Quantum of costs
Rule 21.02 of the Federal Circuit Court Rules 2001 provides:
21.02(2) In making an order for costs in a proceeding, the court may:
(a) set the amount of costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Part 40 of the Federal Court Rules or under chapter 19 of the Family Law Rules; or
(d) set a time for payment of the costs, which may be before the proceeding is concluded.
The husband asserts that his costs in accordance with the scale of costs applicable to this court are $3142. I accept that calculation of costs.
Conclusion as to costs
I am satisfied that the factual circumstances of this matter justify a departure from the general rule that each party should bear his or her own costs.
Having considered the competing arguments in relation to the application to adduce further evidence, the relevant factors which I am required to consider pursuant to s.117(2A) of the Act and having regard to the available evidence of the financial circumstances of both parties, I propose to make an order that the wife pay a contribution towards the husband’s costs in the sum of $1,571.00.
I consider that the wife should pay her contribution towards the husband’s costs, contemporaneously with the distribution to her of her share of the proceeds of sale of the time in property. In the event the wife has already received her share of the proceeds of sale, then such sum should be payable to the husband solicitors within 14 days.
I certify that the preceding two hundred and forty nine (249) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 17 November 2016
Key Legal Topics
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Family Law
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Jurisdiction
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Procedural Fairness
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Remedies
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