Wordsworth and Wordsworth
[2014] FCCA 2427
•31 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WORDSWORTH & WORDSWORTH | [2014] FCCA 2427 |
| Catchwords: FAMILY LAW – Particularly bitter parenting dispute – parents detest each other and both lack insight – siblings separated – whether younger child should primarily live with mother or join the elder child and father – elder child alienated from mother – neither parent prepared to foment relationship of children with the other – children’s wishes clear – orders made as sought by the Independent Children’s Lawyer and recommended by Family Report. |
| Legislation: Family Law Act 1975, s.60CC |
| Goode v Goode [2006] FamCA 1346 |
| Applicant: | MR WORDSWORTH |
| Respondent: | MS WORDSWORTH |
| File Number: | MLC 10653 of 2009 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 27 August 2014 |
| Date of Last Submission: | 27 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2014 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Mr Dunstan |
| Solicitors for the Independent Children’s Lawyer: | Bowlen Dunstan & Associates Pty |
ORDERS
The father have sole parental responsibility for the child, X born (omitted) 1999, and the mother have sole parental responsibility for the child, Y born (omitted) 2002.
X is to live with his father and spend time with his mother in accordance with his wishes.
Y is to live with his mother and spend time with his father as follows:
(a)Every fourth weekend commencing 15 November 2014 (or as at a date agreed by the parties) from 9:00 am on Saturday until 4:30 pm on Sunday;
(b)Half of each of the School Term Holidays and in default of agreement the first week thereof;
(c)Half of the Long Summer School Holidays (three weeks). In 2014 and each even numbered year thereafter such time will be spent in the last three weeks’, and in 2015 and all even numbered years thereafter the first three weeks.
Changeover for the purposes of order 3 will be outside (omitted) police station.
The father is authorised and permitted to apply for and receive an Australian passport for the child X born (omitted) 1999 without first obtaining the written consent of the other parent.
The child X born (omitted) 1999 be permitted to depart the Commonwealth of Australia.
In the event of any overseas travel the father is to give the mother four weeks’ notice of any such proposed travel including, dates of departure, flight details, places to be visited and accommodation thereat, if practicable.
The appointment of the Independent Children’s Lawyer is discharged.
All extant orders are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Wordsworth & Wordsworth is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT AT MELBOURNE |
MLC 10653 of 2009
| MR WORDSWORTH |
Applicant
And
| MS WORDSWORTH |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings are concerned with the best interests of two children, X, born (omitted) 1999, and Y born (omitted) 2002. The father wishes both the children to live with him. The mother wishes X to live with the father and Y to live with her. There are a number of ancillary aspects to the dispute such as spend time regime, changeover and the like, but the primary issue is with whom Y lives and whether he should be with his brother and father.
Litigation first started between these parties in 2006, consequent upon an earlier separation, but the parties have been engaged in essentially unending litigation since 30 November 2009. It is high time the litigation came to a conclusive end, and the orders I propose to make are designed to achieve that outcome.
For the reasons that follow, and in accordance with the submissions of the Independent Children’s Lawyer, and the recommendations of the family report writer, Y will live with his mother and spend time with his father. X will live with his father and spend time with his mother according to his wishes.
An overview of the proceeding and the evidence of the parties
As already indicated these proceedings commenced in November 2009. There have been all too numerous court hearings, and the pattern of residence of the children has changed from time to time. Both parents make allegations of violence against the other, and it would be difficult to imagine two parents more deeply critical and distrustful of one another.
The parties have taken up a very considerable amount of the court’s time and resources. There have been two section 11F reports and three family reports. The way in which the parties are unable to deal with one another in a cooperative and sensible fashion, and the serious and numerous allegations that the parents make about each other, have been difficult for the court to deal with.
Although the parties have had all too much to say in their affidavits about one another, in a very real sense their evidence has been essentially the same all the way through. A helpful overview of the factual background is set out at paragraphs 1-3 of the most recent family report of Mr P dated 4 August 2014 as follows:
“1. Mr Wordsworth was born on the (omitted) 1955 and Ms Wordsworth was born on the (omitted) 1960. They married on the (omitted) 1998 and had two children to their marriage, X, born on the (omitted) 1999 and Y, born on the (omitted) 2002. Following their separation on the 29th of August 2009, they obtained Parenting Orders on the 27th May 2010 for X and Y to live with their mother and spend alternate weekends with their father.
2. X went to live with his father in December 2011 following an altercation with his mother. Both parents applied to the Court to each have of the boys live with them. Following Recovery Orders, an 11F Report and two Family Reports, Final Orders were made on the 3rd of June 2013 for the boys to live with their father and for Y to spend alternate weekends with his mother. Mr Wordsworth lives in (omitted) and Ms Wordsworth lives in (omitted). Y was withheld by his mother following a weekend visit in September 2013 and since that time has not spent time with his father.
…
3. At present X lives with his father in (omitted) and Y lives with his mother in (omitted). The boys do not spend time with each other or with the parent who is not their primary caregiver.”
Although, of course, I have read and re‑read all the material filed by the parties it is not in the context of the nature of the dispute between them appropriate or necessary to set out in any kind of lengthy way the criticisms that each advance of the other.
Both parents have accused each other of family violence, the mother more extensively than the father. Both have criticised the mental health of the other, and I note that the father attempted suicide when under pressure in 2005.
The parties have had very considerable difficulty in sorting out their property dispute which has only added to the bitterness between them.
Each of the parents has accused the other of assaulting the children. It is apparent from exhibit ICL2 being a Department of Human Services (“DHS”) s.69ZW report that the mother hit X on 29 May 2011, and it is also apparent from the same report that the father hit Y on 30 September 2013.
It is apparent that X drew a knife on his mother in December 2011, and I note that the s.11F report conducted on 30 April 2012 refers to the mother’s lack of insight as to why her relationship with her son was so poor. It is also apparent from the s.11F report on 15 October 2013 that the mother has wilfully refused to return some of X’s belongings to him for a very long time, this only going to show her lack of insight and also to explain why X’s relationship with her is so fractured.
I note that from paragraph 38 of the report of Mr N dated 13 November 2012 that the mother was said by X to have hit him in the head (see paragraph 38) and that X is extremely aligned with his father.
I further note that there is clear reference in the materials to the fact that the father’s personality can be overbearing, that he can appear threatening and indeed two schools have reported having difficulties with him.
The position of the father can be put shortly. He proposes that the children live together and with him. He has deposed that he tries to foment a relationship with the mother, but has been unsuccessful in doing so. He completely denies any question of alienating the children from the mother.
The mother accepts that X does not want to live with her, but seeks that Y lives with her. Y has been living with her since September 2013 following the assault by the father (denied by him). The over-holding of Y was undoubtedly to an extent opportunistic in my view.
The evidence given by the parties at court
The father
The father commenced by saying that the allegations made against him (those arising out of the alleged assault in September 2013) were not going to be sustained. He said that the police were not going to prosecute (exhibit ICL1 shows that this is correct), and he said that the DHS dropped their inquiries on 5 February 2014. He said the boys should be together and live with him.
The father was cross-examined by the Independent Children’s Lawyer as to his financial circumstances. Nothing of any moment in my view emerged from this aspect of the cross-examination. It seems to me that the father is able to get by financially as he is.
The father also was cross-examined as to X’s circumstances and these seemed to me to be unremarkable. I note that he is doing a (omitted) course and will be in (school omitted) next year. I further note, a matter emphasised to an extent in the materials, that X is heavily involved in baseball. The father said that X saw his mother at the family report interview, but the last time he saw her before that was 7 December 2011 when he was 12. He is now 15 years old and over six feet tall.
The father confirmed that he cannot discuss anything with the mother, and that they are utterly unable to communicate with one another. This had been the case even before they were divorced in September 2009.
It should be noted that the father’s evidence was given in an extremely forceful and overbearing fashion. He talked over everybody including me. His short temper was readily apparent. He also showed a marked lack of insight in some instances. He agreed that he had not done any family therapy as ordered by the Court on 18 October 2013. He failed to see the necessity for it or utility in it.
He said he had spoken to Catholic Care at great length, but that there was nothing to be done until Y was back in his care.
The father confirmed that he has had two telephone calls with Y since the orders on 10 December 2013 and the conversation had been unremarkable, talking about fishing and general things and school. The father expressed concern about Y’s education and development, or more accurately lack thereof. He said Y does not know his times tables except the ten times table.
When asked if Y enjoys his time with his mother in (omitted) the father in my view was evasive. He said that Y always had a fun time when he was with him. He said he wants Y and X together in his care full time. He proposed that the mother spend time each fortnight from 12:00pm to 3:00pm on Sunday in the winter, such time to be supervised and likewise from Saturday 12:00pm until 3:00pm in summer. It was his proposal that he and X would sit some 300 metres away and watch.
In giving some of these answers the father was gratuitously insulting to the Independent Children’s Lawyer.
When cross-examined about the relationship between Y and his mother in the event that he lived with the father, the father says it would be up to Y whether he had a relationship with his mother or not.
When cross-examined about an incident where Y had not wanted to get up and go to a baseball camp detailed at paragraph 30 of Mr P’s family report the father’s answers were, in my view, not responsive and were self-serving. He said he carried Y out to the car and put him in the back, and that Y had hit his arm on the table. I found this particular explanation unpersuasive.
The father rejected DHS criticism of him as lacking insight. He confirmed, however, that overseas trips in the context of baseball were possible, and that he sought passport orders accordingly. He further sought financial compensation for the mother’s failure to return X’s possessions.
The evidence of the mother in-chief was to the effect that she would love to see X. She said that the experience during the family report process had been good and that X could have walked away should he have wished. She said Y would like to see his brother but not to stay overnight.
The mother
The mother like the father was cross-examined about her financial circumstances and it is clear that she is not well off.
The mother gave evidence about Y’s refusal to spend time with his father following school. It seems clear that the mother’s presence would have perhaps inhibited Y from going. She said Y would be tense before these proposed visits and that this was unusual behaviour for him.
According to the mother the transition back to her care took place because Y had told her that his father had smacked him.
The mother confirmed that X loves his brother and that she took issue with some of the recommendations made by Mr P. She agreed with the recommendation that X live with the father and Y with the mother. She did not agree, however, that mother and Y should travel to (omitted) one weekend every four weeks for them to spend time with X and for Y to spend time with his father and X. She said Y would not want to stay overnight. She opposed half school holidays for Y with his father. She agreed that it would be appropriate for her and the father to change the way they dealt with the children but when taxed with the possibility of therapy by the Independent Children's Lawyer she said she could not come all the way to (omitted) to undertake it; it would have to take place somewhere in the middle.
The mother opposed the children being taken overseas for travel. She articulated some, (in my view), farfetched theory that the father might decamp to (country omitted) with the child or children.
It is noteworthy the mother was effectively unable to say anything good about the father when asked to do so. She denied, however, saying anything bad to the children about him.
The mother had no objection to the father receiving school reports and attending parent teacher interviews.
The mother agreed that changeover at (omitted) in front of the police station would be appropriate.
The mother conceded that if changeover took place at (omitted) a return time could be at 4.30 pm. She does not like driving at night and the journey from (omitted) to (omitted) can take up to two hours. She said she could get to (omitted), however, by 9:00 am.
She said Y might not want a whole week with his father but she was “prepared to give it a go”. She agreed to telephone and Skype time.
Cross-examination by the father of the mother was, in my view, unproductive save that it did show the father’s overbearing character clearly.
In response to further questions from the Independent Children's Lawyer the mother confirmed that she has none of X’s possessions still in her possession.
Some further cross-examination of the father by the Independent Children's Lawyer about inter alia the times the father had attended school to try and collect Y in my view took the matter no further.
The family report and evidence of Mr P
Mr P’s report in large part speaks for itself. Mr P recorded the mutual accusations made by the parties and the positions expressed by them which are consistent with those expressed to the Court.
I note, scarcely surprisingly, the interrelation between the mother and X was somewhat awkward (paragraph 16 of the report), and I note at paragraph 22 Mr P recorded:
“Ms Wordsworth was not particularly interested in how Mr Wordsworth could spend ongoing time with Y and was uncomfortable on the day of the interviews when Mr Wordsworth took the boys for a walk while she was interviewed. She admitted she does not trust Mr Wordsworth with Y, despite having witnessed them getting on well together prior to her interview. Ms Wordsworth stated she did not really prepare Y to see his brother and father when they were travelling to the interviews from (omitted) and thought he was quiet and withdrawn prior to seeing them. However she admitted he changed when he saw X, in particular, and appeared happy.”
Mr P recorded at paragraphs 23-27 the observations of his interview with X. It is clear that X is strongly aligned with his father and totally alienated from his mother. I note that at paragraph 25 inter alia X had said:
“X admitted that he probably won’t see much of Y if he doesn’t live with him and his father. As he leads a busy life six days a week with school, helping a (employer omitted) and either training for or playing baseball, he does not have much time left over to do things with Y. If they were living in the same house they would be able to see other for meals and relaxing in the evenings. X described Y as ‘a full on kid’ before stating ‘there might be something wrong with him.’ He believes Y probably needs him around to help him with his schooling.”
Perhaps not surprisingly X was, at least to an extent, ambivalent about his brother. At paragraph 27 of the report Mr P recorded:
“… While he clearly enjoyed the adoration he received from Y, X stated ‘Y can also be a pain and life would be a lot easier sometimes without him.””
The observations of Y with his father and brother are recorded at paragraphs 28-32 of the report. It is clear that Y very much enjoyed seeing his father and brother and at paragraph 29 Mr P recorded:
“When interviewed alone, Y stated clearly that he misses X and he ‘sort of’ misses his father. However he also clearly stated that although he wanted to see more of his father and X, he did not want to live with them. He enjoys his life in (omitted) and admitted he had difficulty remembering how he came to live with his mother. When asked further about what he remembered, Y stated ‘I got hurt by Dad on my left arm’.”
Notwithstanding this Y had no bad feelings about his father. At paragraph 32 the report reads:
“When asked how he would feel if the Judge decided to leave things the way they are, Y stated ‘I don’t know, it would be a pain because there’s lots of travelling’. He further stated he would like to live with his mother and see his father and X in (omitted) on weekends when he could play baseball. Y would like to share school holidays with each parent.”
In the ‘Evaluation’ section of the report Mr P said at paragraphs 36-39:
“36. Ms Wordsworth made it clear she did not want to go out of her way to promote Y’s relationship with his father but did want Y and her to spend time with X in Melbourne for day visits. Mr Wordsworth cannot understand why it has taken so long for administrative processes to take place before Y is returned to him and X and he made it clear he will not trust Ms Wordsworth in the future to have unsupervised time with Y. X admitted to leading a busy life with his school, casual work and sport and was not sure how much time he would spend with Y if they lived together again.
37. Y made it clear he was happy living with his mother in (omitted) and would like X to live with him and his mother. However he is aware of X’s busy life in Melbourne centred on baseball activities and thought it was unlikely that X would want to leave (omitted) to live with him. Consequently he was happy with the thought of seeing X and his father more often in Melbourne, despite not looking forward to the travelling.
38. At the time of the interviews X had aligned himself with his father but made an effort to communicate with his mother on the day of the interviews because she was trying to communicate with him. Y stated that he liked being with both parents and was not scared of his father, as his mother had claimed. He displayed a strong affection towards X when they were observed together and both parents are aware that Y and X need to spend more time together.
39. I do not think Y is being poorly parented by Ms Wordsworth, as Mr Wordsworth claims, but am concerned that Ms Wordsworth does not see a place for Mr Wordsworth in Y’s life. Similarly Mr Wordsworth has no time for Ms Wordsworth and is relieved that X has not asked to see her, even when Y went to live with her. While it would be optimal for X and Y to live in the same household, X wants to stay with his father and Y wants to stay with his mother. If Y was to return to his father’s care he would have minimal to no involvement with his mother.”
When called to give evidence Mr P was first questioned by the Independent Children's Lawyer. He confirmed that X should spend time with his mother in accordance with his wishes. He also confirmed that a changeover in (omitted) would make perfect sense and that time from Saturday morning to Sunday evening would be appropriate.
Under cross-examination by Mr Wordsworth, Mr P confirmed that Y made it quite clear that he was happy where he is.
When subjected to further questions by the Independent Children's Lawyer about family therapy, Mr P said that the relationship has gone well beyond that. Any further such intervention would be futile.
Findings about the credit of the witnesses and the facts
As the Independent Children's Lawyer submitted Mr P’s evidence was unchallenged. He is a professional witness giving evidence well within his sphere of expertise and I accept his evidence in its entirety.
The father is a loud, threatening, aggressive man with a very short temper. I have no doubt that he was violent during the relationship and no doubt that he did something to Y in September 2013 that resulted in Y deciding to stay with his mother.
The father utterly lacks insight into his own conduct and the mother is exactly the same.
The mother has unquestionably behaved extremely badly on occasions to X and the bifurcated relationship she has with him is the result.
These two parents detest one another with an intensity unusual even in family law cases where such detestation is unfortunately relatively common. Neither will say anything good about each other either in Court or out and neither will foment a good relationship between the other parent and the children.
X clearly is wholly aligned with his father and will have, at best, a fleeting relationship with his mother. The father will do everything in his power to prevent such a relationship despite his denials. The prognosis for X’s future relationship with his mother is, regrettably, extremely poor and the likely long-term impact of this upon him is not good. There is, however, nothing that the Court can do about it.
Y is perfectly happy living with his mother but would like to see more of his father and more particularly X. Over time this may not be as good as he thinks because X is reaching an age where his interests are pulling him in other directions but on any view it is desirable that they spend more time together.
Statutory pathway
The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:-
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(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 and 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.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental responsibility
The Court is first required to consider whether the presumption as to equal shared parental responsibility should be applied. Mr P’s report says nothing of any moment about this issue and I note that the Independent Children’s Lawyer formally submitted an order for shared parental responsibility was appropriate.
In this case not only has there clearly been family violence within the extended meaning within the Family Law Act, but shared parental responsibility between parents with this sort of attitude to one another is utterly unworkable. They are utterly unable to cooperate in any way. It is clearly not in the children’s best interests that there be an order for shared parental responsibility where any such order will only foment further discord between the parents. Each parent will have the sole parental responsibility for the child who lives predominantly with them.
In these circumstances equal time is plainly not appropriate and no one is suggesting orders for substantial and significant time within the meaning of the Act. It therefore becomes a question of identifying the orders are in the best interests of the children bearing in mind the matters in s.60CC(3) of the Act.
The primary considerations in section 60CC(2) of the Family Law Act 1975 (“the Act”)
In principle it would benefit both children to have a meaningful relationship with each of their parents. There is a need to protect both children from psychological harm from being subjected to or exposed to family violence within the broad definition in the Act.
While this latter matter is one to which greater emphasis should be given (s.60CC(2A) in the context of this case in my view it has as things stand little work to do. Mr Wordsworth is well capable of being violent in my view to anybody whom he chooses to be violent to, but Y is not scared of him. Given that the experience of the past informs an assessment of the future I do not think that Y would be at risk of family violence in his father’s care nor would he be at risk of family violence from X.
Neither Y nor X would be at risk of family violence now from their mother but in X’s case this is no longer a relevant consideration.
For all their limitations and faults each of these parents clearly love their children and it would in a general way be beneficial for the children to have a meaningful relationship with each of them.
The additional considerations in section 60CC(3)
Section 60CC(3)(a)
The views of the children in my view could not be clearer. X being 15 is at an age where his views must be given weight. Y is only 12 years old but his views have been expressed clearly and Mr P was in no doubt as to what they were. His views should also be given significant weight. He did not change households from his father to his mother for nothing.
Section 60CC(3)(b)
X has a closely aligned relationship with his father and a completely broken one with his mother. Y has a close relationship with his mother and has a less significant relationship with his father. X and Y clearly have an excellent and important relationship, most particularly in the sense that Y dotes upon his elder brother. There is no evidence of any particular relationships with any other persons.
Section 60CC(3)(c)
Although both parties were critical of the other as to the time it had taken them to seek to spend time with their children and the like, in the particular circumstances of this case this subsection adds little to the matter. The parties have taken the time and trouble to come to court to seek to achieve what it is they want. Neither parent seems to me to have done anything much to permit the other to participate in making decisions about major long term decisions in relation to the child that is not in their care (section 60CC(3)(c)(i)).
Section 60CC(3)(ca)
Both of these parents have adequately cared for the children when they are in their care subject to the obvious exception of the mother’s care of X before he left her care. Both are adequate carers for the children as things presently stand. Both are open to considerable criticism for their behaviour when the parties were together and subsequently but once again in the circumstances of the case those criticisms do not take the matter further.
Section 60CC(3)(d)
There is no question of changing X’s circumstances. He will continue to live with his father. Since Y has expressed a clear desire to stay with his mother and has a closely bonded relationship with her, it is self-evident that separation from her in the fashion that the father seeks would not be in Y’s best interests. The father’s proposal that the mother be all but excised from Y’s life speaks volumes to his lack of insight.
It is clear that the separation of the siblings is undesirable. What can be said, however, is that notwithstanding such separation as there has been the two siblings get along extremely well in any event. I note Mr P’s finding that if Y was to live with his father he would have minimal to no involvement with his mother.
Section 60CC(3)(e)
There is nothing to suggest that the arrangements to be made in this case will turn upon the practical difficulty and expense of the arrangements. Both parties have very different proposals but neither suggested that the extant orders or some variation of thereof were either difficult to implement or a problem in terms of expense.
Section 60CC(3)(f)
In my view both parents have significant limitations as parents. They do not understand the difficulties that their behaviour toward one another is going to create for the children in the future and indeed have already created. Nonetheless each of these parents is a competent carer in the sense of being able to provide for the children’s immediate material needs while they are in their care.
Section 60CC(3)(g)
Clearly X’s age is a relevant consideration but I have already taken his views into account as I have those of Y. I note again that as X gets yet older his need to interact with his brother may modify. There is not much to be said about maturity, sex, lifestyle and background of the parents that has not already been said.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
Once again while there is all too much to say about the deficiencies of the parents’ capacities to see the negative impacts of their destructive behaviour, this has already been dealt with.
Section 60CC(3)(j)
There has clearly been family violence but in the circumstances it is not necessary to deal with it further.
Section 60CC(3)(k)
This is irrelevant although there have been such family violence orders in the past.
Section 60CC(3)(l)
It is of course desirable to make orders to end this most unfortunate long running dispute. It is plainly in the children’s best interests that that be so.
Section 60CC(3)(m)
There are no other matters upon which to comment.
Conclusion
The submission of the Independent Children’s Lawyer is that Mr P’s recommendations should be adopted given that Mr P’s evidence was effectively unchallenged. The Independent Children’s Lawyer pointed out again that there would be no relationship between Y and the mother if he lives with the father. He sought an order for equal shared parental responsibility, but as indicated earlier I am not making that order.
The brief final submissions from the parties did not take the matter much further.
The case all boils down in essence to whether as the father says the two children should immediately be reunited in his care and things can move on, as Mr Wordsworth would put it, appropriately. The mother necessarily opposes that approach.
In my view the proper conclusion to this case can be stated shortly.
X must live with his father and should spend time with his mother in accordance with his wishes. Given the father’s position that time is highly likely to be minimal if any and while this is a terribly unfortunate outcome which is highly likely to impact upon X’s development in the future there is simply presently no alternative.
Y in my view should continue to live with his mother. He has a close bond with her and is perfectly happy living where he is. He wants to stay there. He should however spend more time with his brother and father as recommended by Mr P.
In view of the practical issues between the parties and the costs associated with the matter I will adopt Mr P’s suggestion that changeover take place at (omitted) outside the police station. I will further adopt his recommendation that time be spent in Melbourne one weekend every four weeks. The mother is to deliver Y to the father at 9:00 am on Saturday and the father is to return him to the mother at 4.30 pm on Sunday.
Y will spend half of each of the school holidays with his father and X and in default of agreement the first week of the term holidays.
Nothing has been said about Christmas or special days and in the circumstances I am not going to intervene in that aspect of the matter because the time ordered to be spent is the most that ought to be ordered.
Given that Christmas however falls within the first three weeks of the long school holidays, I will order that Y spends the first three weeks of the long school holidays in 2014 with his mother and the first three weeks of the long term school holidays in 2015 with his father. The net effect is that he will spend alternate Christmases with each parent.
I will make the usual passport orders in respect of X. If his father is able to take him overseas to play baseball or indeed for any other reason this will be entirely appropriate and in X’s best interest. Any suggestion that he will abscond with X is fanciful. There is no need for a passport order in respect to Y as there is no suggestion Y will be going overseas.
The father is to give the mother four weeks’ notice of any proposed overseas trip with X including details of dates of departure, flight details and details of the places to be visited.
I will otherwise set aside all pre-existing orders and discharge the appointment of the Independent Children’s Lawyer.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 31 October 2014
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
0