York & Anor & Werber

[2012] FMCAfam 7

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YORK & ANOR & WERBER [2012] FMCAfam 7

FAMILY LAW – Parenting – parental responsibility – spend time with arrangements – whether siblings should live together with father or remain separated – virtual communication.

Family Law Act 1975, ss.4, 60CA, 60CC, 61B, 61C, 61DA, 62B, 64B, 65DA, 65DAA, 68B

Barnett v Barnett (1973) 2 ALR 19
Garvey & Eccles [2008] FMCAfam 1218
H & H (1994) 19 Fam LR 165
In the Marriage of Hayman (1976) 2 Fam LR 11, 558; 14 ALR 216
In the Marriage of Mathieson (1977) FLC 90-230; (1980) 6 Fam LR 116
Lindell v Ranteri [2010] FamCA 52
McCall & Clark [2009] FamCAFC 92

First Applicant: MR YORK

Second Applicant: MS YORK

Respondent: MS WERBER

File Number: SYC 152 of 2010

Judgment of: Monahan FM

Hearing dates: 8 and 9 December 2011

Date of Last Submission: 9 December 2011

Delivered at: Sydney

Delivered on: 19 January 2012

REPRESENTATION

Counsel for the First and Second Applicants: Mr Blackah

Solicitors for the First and Second Applicants: Derham Houston Lawyers

Counsel for the Respondent: Ms Barnett

Solicitors for the Respondent: David H Cohen & Co

Counsel for the Independent Children’s Lawyer: Ms Karagiannis

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW - Gosford

ORDERS

1. MR YORK (“the father”) and MS WERBER (“the mother”) have equal shared parental responsibility for the children [X] born [in] 2002 (“[X]”) and [Y] born [in] 2000 (“[Y]”) (or collectively “the children”).

2. The children live with the father.

3. The children spend time with the mother as agreed, or failing agreement, as follows:

   (a)for one half of the Easter school holidays in each year, as follows:

   (i)in odd-numbered years, the second half; and

   (ii)in even-numbered years, the first half;

   (b)for two (2) out of three (3) weeks of the June/July school holidays in each year, as follows:

   (i)in odd-numbered years, the second two (2) weeks; and

   (ii)in even-numbered years, the first two (2) weeks;

   (c)for half of the September/October school holidays in each year, as follows:

   (i)in odd-numbered years, the second half; and

   (ii)in even-numbered years, the first half;

   (d)in the long summer school holidays in each year, as follows:

   (i)in long summer school holidays commencing in odd-numbered years, the first four (4) weeks; and

   (ii)in long summer school holidays commencing in even-numbered years, the final four (4) weeks.

4. The parties be restrained from hitting or otherwise physically disciplining the children at any time and are to use their best endeavours to ensure that no other person physically disciplines the children.

5. The parties be restrained from denigrating, criticising, or permitting any third party to denigrate or criticise:

   (i)the other party;

   (ii)any partner of the other party; or

   (iii)any family member of the other party

   in the presence or hearing of the either or both of the children.

6. In the event that the parties are unable to reach agreement relating to the children’s long term care, welfare and development, the parties participate in family dispute resolution.

7. With the exception of paragraphs one (1), two (2), four (4) to 10 (inclusive) and 23 to 27 (inclusive), the interim Orders contained within the Minute attached to the Orders made by this Court on 8 December 2010 (“the ancillary matters”) remain in full force and effect.

8. All extant applications be adjourned to a date and time to be fixed to consider discharging paragraph seven (7) herein and making final Orders in respect of the ancillary matters.

AND THE COURT NOTES THAT:

(A)The school holiday periods referred to in these orders are the NSW gazetted school holiday periods.

(B)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 those particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 152 of 2010

MR YORK

First Applicant

MS YORK

Second Applicant

And

MS WERBER

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings commenced by the First and Second Applicants, MR YORK (“the father”), born [in] 1982, and MS YORK (“the paternal step-grandmother”), born [in] 1965, against the Respondent, MS WERBER, born [in] 1982 (“the mother”).

2. The proceedings concern the two children of the father and the mother’s relationship, namely, [Y], born [in] 2000, (“[Y]”) and [X], born [in] 2002 (“[X]”) (collectively, “the children”).

3. While the paternal step-grandmother is the Second Applicant in these proceedings, she was represented by the same solicitors and counsel as the father and did not advance a separate proposal to that put forward by the father. For ease of reference then, the father and the mother will be collectively referred to below as “the parties”.

Background

1. The parties are first cousins from their respective maternal sides.

2. The parties commenced their relationship in about July 1999 and the relationship ended on a final basis approximately ten years ago.

3. These proceedings were commenced by way of an Initiating Application filed by the father and paternal step-grandmother on 12 January 2010.

4. Following an Order made by Altobelli FM on 21 January 2010 the first return date the Initiating Application was expedited to 27 January 2010 before Kemp FM. On that occasion Kemp FM made Orders, inter alia, that:

   ·[X] live with the father and the paternal step-grandmother;

   ·[X] spend time with the mother during school holiday periods;

   ·[X] communicate with the mother by telephone at certain defined times; and

   ·an Independent Children’s Lawyer (“ICL”) be appointed to represent the interests of the children.[1]

   [1] A further Order was made by Kemp FM on 17 March 2010 clarifying that the ICL was appointed to represent both [X] and [Y].

5. On 27 April 2010, further Orders were made by Kemp FM, setting the matter down for Final Hearing on 8 and 9 December 2010, making appropriate trial directions and ordering the preparation of a Family Report.

6. The matter was then transferred into my docket and I released the family report of Ms M, Family Consultant, dated 9 November 2010, to the parties and the ICL on 10 November 2010 (“the first Family Report”). Ms M later produced an addendum to the first Family Report dated 7 December 2010 (“the Addendum Report”).

7. On 8 December 2010, the father was represented by Mr Gilbert, the mother by Ms Graves of counsel and Ms Karagiannis, as solicitor advocate, appeared for the ICL. On that morning the mother sought an adjournment as she had not complied with the directions to file her evidence and the ICL reluctantly indicated that it was her view that the Final Hearing would be unable to proceed. Consequently, the Final Hearing was not able to proceed on 8 December 2010. Accordingly, in addition to listing the matter for Final Hearing on 8 December 2011, making new trial directions and ordering the preparation of an updated Family Report, the Orders made on 8 December 2010 included interim parenting orders by consent which provided as follows:

   “1. That the father MR YORK ('the Father'), the Paternal Step Grandmother, MS YORK ('Ms York') and the Mother MS WERBER ('the mother') have equal shared parental responsibility for the child [X] (born [in] 2002) ([X]).

   2. That the father and the mother have equal shared parental responsibility for the child [Y] (born [in] 2000) ('[Y]').

   3. That [X] live with the father and Ms York as agreed.

   4. That [Y] live with the mother.

   5. That [X] spend time with the mother as follows:

   5.1 Friday 10.12.2010 to Sunday 02.01.2011;

   5.2 Saturday 09.04.2011 to Saturday 16.04.2011;

   5.3 Saturday 02.07.2011 to Saturday 09.07.2011;

   5.4 Saturday 01.10.2011 to Saturday 08.10.2011;

   5.5 Monday 02.01.2012 to the day before school.

   6. That [Y] spend time with the father as follows:

   6.1 Sunday 02.01.2011 to Sunday 23.01.2011;

   6.2 Saturday 16.04.2011 to Sunday 24.04.2011;

   6.3 Saturday 25.06.2011 to Saturday 02.07.2011;

   6.4 Saturday 24.09.2011 to Saturday 01.10.2011;

   6.5 Saturday 10.12.2011 to Monday 02.01.2012.

   7. For the purpose of implementing the arrangements referred to in paragraph 5 herein, the father and/or Ms York are to deliver [X] to the mother at Sydney Airport at the appropriate times and the mother and/or the maternal grandmother is to return [X] to the father at Brisbane Airport at the conclusion of her time.

   8. For the purpose of implementing the arrangements referred to in paragraph 6 herein, the mother and/or the maternal grandmother is to deliver [Y] to the father at Brisbane Airport at the appropriate times and the Father and/or Ms York are to return [Y] to the mother at Sydney Airport at the conclusion of such time.

   9. Each party is to confirm the arrangements for the children's travel no later than 5 days prior to the time of the proposed travel and each party shall confirm with the other by sms message that the children have been delivered to the Airport and/or that the children have been collected from the airport as the case may be.

   10. That the Father and the mother pay the costs of the Children's flights in equal shares.

   11. That the Children have telephone communication with each other and with the other parties between 7:00pm and 8:00pm NSW Eastern Standard Time each Tuesday (call from the mother) and Friday (call from the father) and each party or their nominee, will facilitate such communication.

   12. Further, the parties shall ensure that the children communicate by telephone with each other and with the other parties on the following occasions of special significance:

   12.1 Mother's Day;

   12.2 Father’s Day;

   12.3 Christmas Day; and

   12.4 Each of the children's birthdays.

   13. That for the purposes of communicating information pertaining to the welfare of the children, the parties shall:

   13.1 communicate by telephone matters of an urgent nature; and

   13.2 by way of sms message about day-to-day matters.

   14. That each party forthwith advise the other parties, and keep the other parties advised of their current address and contact telephone numbers (including both landline and mobile phone numbers) and shall advise of any changes to these details within forty-eight (48) hours any change occurring.

   15. That each party shall contact the other as soon as practicable, in the event of any medical or other emergency relating to either of the children.

   16. That each party will provide the other with the full details of any treating medical practitioner with respect to either of the children.

   17. That each party provide the medical practitioner, medical centre or hospital caring for either of the children with any irrevocable authorities required permitting the other PARTY to discuss the child's treatment with the relevant practitioner, medical centre or hospital.

   18. That all parties be at liberty to attend any medical appointments with respect to either of the children.

   19. That each party forthwith execute the appropriate authority at the children's schools and at any schools the children may attend, to authorise the schools to forward to the other party copies of all of the children's school reports, merit cards and any written material pertaining to the children's academic and extra-curricular activities.

   20. Each party is hereby authorised to communicate directly with the children's school teachers as to the child's progress and each party is authorised to receive such notifications/reports from the school which parents are usually expected to receive.

   21. That the mother forthwith arrange for [Y] to undergo a full assessment with a Therapist nominated by the Independent Children's Lawyer for the purpose of ascertaining [Y]'s educational needs and any other special needs he may have and the mother shall comply with all reasonable recommendations as to the child's future care or treatment.

   22. The mother shall arrange for a copy of any report provided by the Therapist appointed pursuant to the provisions of paragraph 21 herein to be provided to the father and to the Independent Children's Lawyer within seven (7) days of receiving such report.

   23. That the mother be restrained from removing [Y] from his current school without the consent of the father and the Independent Children's Lawyer.

   24. That each party be restrained from making critical or derogatory remarks in relation to the other party or any member of the other party's family in the presence or hearing of the children and they shall do all things necessary to ensure that no other person does so.

   25. That these orders continue for a period of 12 months at which time the Family Report is to be updated.

   26. That the parties and the Independent Children's Lawyer have liberty to relist the matter on seven (7) days notice.

   27. That the father shall sign, within seven (7) days of any request, any document required to effect the registration of his name as [X]'s father with the Registry of Births, Deaths and Marriages.

   28. That the parties be restrained from discussing with the children any issue pertaining to where the children would like to live.

   29. That these Orders be explained to the children by the Independent Children's Lawyer.

   30. The Court NOTES that the assessment referred to in paragraph 21 herein shall be conducted by '[omitted] Psychology' at [G]; the three parties are at liberty to attend with the children.

   31. The parties shall ensure that the children attend school on a regular basis.”

8. An updated Family Report by Ms M, dated 30 November 2011, was released to the parties on 1 December 2011 (“the Updated Family Report”).

9. The matter came before me for Final Hearing on 8 December 2011 (“the Final Hearing”). At the Final Hearing, the father was represented by Mr Blackah of counsel, the mother was represented by Ms Barnett of counsel and Ms Karagiannis again appeared for the ICL. At the conclusion of the Final Hearing on 9 December 2011 I reserved my decision and made the following interim orders and notations:

   “1.All extant applications be adjourned to this Court on a date and time to be fixed for judgment hearing (“the judgment hearing”).

   2.The Respondent spend time with the children [X] (“[X]”), born [in] 2002, and [Y] (“[Y]”), born [in] 2000, (collectively, “the children”) from 10 December 2011 until 2 January 2012, with the Respondent to collect [X] from the First Applicant’s residence at 10:00am on 10 December 2011.

   3.The children spend time with the First Applicant from 2 January 2012 to 22 January 2012.

   …

   A.The parties indicated that they would forthwith complete and lodge the necessary documentation with the QLD Registry of Births, Deaths and Marriages to have the First Applicant entered as the father on [Y]’s birth certificate.

   B.In the event that the Court decides that [Y] should live with the First Applicant, the parties indicated to the Court that they had agreed on arrangements for the children to spend time with the Respondent as follows:

   a.for one half of the Easter school holidays in each year, as follows:

   i.       in odd-numbered years, the second half; and

   ii.     in even-numbered years, the first half;

   b.for two (2) out of three (3) weeks of the June/July school holidays in each year, as follows:

   i.      in odd-numbered years, the second two (2) weeks; and

   ii.     in even-numbered years, the first two (2) weeks;

   c.for half of the September/October school holidays in each year, as follows

   i.      in odd-numbered years, the second half; and

   ii.     in even-numbered years, the first half;

   c.in the long summer school holidays in each year, as follows:

   i.      in long summer school holidays commencing in odd-numbered years, the first four (4) weeks; and

   ii.     in long summer school holidays commencing in even-numbered years, the final four (4) weeks.”

Chronology

1. The following chronology of events provides a timeline of the parties’ relationship:[2]

   [2] This is based upon the ICL’s Case Outline document dated 5 December 2011, pp. 2-3 with some variation by the Court in light of the evidence.

1965

Birth of the paternal step-grandmother (now aged 46 years)

1982

Birth of the father (now aged 29 years)

1982

Birth of the mother (now aged 29 years)

July 1999

Parties commence relationship

2000

Birth of [Y] (now aged 11 years)

January 2002

Parties separate (as alleged by the father)

June 2002

Parties separate (as alleged by the mother)[3]; mother moves in with maternal grandmother

2002

Birth of [X] (now aged 9 years)

July 2003 (approx.)

Mother and children move to independent accommodation in Brisbane

Early 2005

Mother and children move in with maternal grandmother

14.04.2005

Mother gives birth to another child, [Z][4]

December 2006

Children visit the father over Christmas, when they return [Y] tells the mother that [name omitted], the paternal uncle, had touched them inappropriately (as alleged by the mother)

2008

Mother marries Mr Werber and the family move to [omitted]

October 2008

Mother asks father to take [X] as she could not cope with him (as alleged by the father)

November 2008

[X] comes into the full time care of the father

08.11.2008

Mother makes statutory Declaration in relation to [X] living with paternal step-grandmother

00.12.2008

Last period of physical contact between the father and [Y] prior to commencement of proceedings

April 2009

Mother spend time with [X] during school holidays (as alleged by the mother)

September 2009

Mother and her family move to [omitted]

October 2009

Mother seeks to spend time with [X] over school holidays but request declined (as alleged by the mother)

04.11.2009

Mother tells the father that she has attempted suicide and is now undergoing counseling (as alleged by the father)

07.01.2010

Father receives SMS from the mother advising that she was not returning [X] (as alleged by the father)

12.01.2010

Father and paternal step-grandmother file initiating application seeking live with orders in relation to both children and for interim orders for the return of the child [X]

21.01.2010

Mother files Response seeking orders that the children live with her and spend time with the father

27.01.2010

Order for the appointment of an Independent Children’s Lawyer for the child [X], that [X] live with the Applicants, and the mother to forthwith return the child

17.03.2010

Order for the appointment of an Independent Children’s Lawyer extended to include the child [Y], parties to attend Child Dispute Conference

26.03.2010

Child Dispute Conference Memorandum of Ms S, Family Consultant released.

April 2010

Father commences relationship with Ms E (as alleged by the father)

27.04.2010

Order for the preparation of a Family Report

September 2010

Children spend time with both parties for school holidays (as alleged by the mother)

October 2010

Father and Ms E reside together with paternal grandfather and paternal step-grandmother (as alleged by the mother)

November 2010

Mother separates from Mr Werber (as alleged by the mother)

[Y] commences at [omitted] primary school

10.11.2010

Release of the first Family Report by Ms M, Family Consultant.

07.12.2010

Release of the Addendum Report by Ms M.

08.12.2010

Interim Orders which provided for, amongst other things including specific issues, for [Y] to live with Mother and [X] to live with the Father and Ms York (as agreed) and for the children to spend school holidays together and with the other parent.

09.01.2010

Father and Ms E move into their own home in [G] and paternal grandfather and paternal step-grandmother “assume a lesser role in the care of [X]” (as alleged by the father)

15.09.2011

Confidential Report (Psychological Results for [Y])

16.11.2011

Appointments with Ms M for the Updated Family Report.

01.12.2011

Release of the Updated Family Report

02.12.2011

Litigation intervention Family Law Conference (parties unable to resolve their dispute)

[3] See comments made earlier in this decision regarding separation date discrepancies.

[4] The name of [Z]’s father is not disclosed in the filed material however the mother submits that [Z] lives with his father in Brisbane. See mother’s affidavit sworn 19 January 2010 and filed 21 January 2010.

Proposals

1. By the commencement of the Final Hearing, there was no longer any dispute between the parties that [X] should continue to live with the father. The dispute concerned whether [Y] should continue to live with the mother or move to live with the father and [X].

2. There is also no dispute between the parties that each should have equal shared parental responsibility for the children. The ICL seeks that if the Court decides that both children should live with the father, parental responsibility be equally shared between the father, the mother and the paternal step-grandmother, presumably in respect of both of the children. The paternal step-grandmother, who ultimately took no formal part in the Final Hearing, did not seek any continuation of the current interim Order that she equally share parental responsibility for [X] with the father and mother and did not seek that she have shared parental responsibility in respect of both the children if they live with the father.

3. Lastly, by the conclusion of the Final Hearing, there was also agreement between the parties and the ICL as to the spend time arrangements that would apply between the children and the mother in the event that Court determines that both children should live with the father.

Father’s proposal

1. The father proposes that [Y] live with him together with [X] and spend time with the mother.

Mother’s proposal

1. The mother proposes that [Y] should continue to live with her and should spend time with the father and [X].

ICL’s proposal

1. The ICL supports the father’s proposal that [Y] should live with him and [X] and spend time with the mother. As stated, the ICL also seeks an order that parental responsibility be equally shared between the father, mother and the paternal step-grandmother.

Evidence

Father’s evidence

1. The father relied on the following documents at the Final Hearing:

   ·Initiating Application filed on 12 January 2010;

   ·the father’s affidavit sworn and filed on 11 November 2010;

   ·the father’s affidavit sworn on 14 November 2011 and filed on 15 November 2011;

   ·the paternal step-grandmother’s affidavit affirmed and filed on 11 November 2010;

   ·the paternal step-grandmother’s affidavit affirmed on 14 November 2011 and filed on 15 November 2011;

   ·the affidavit of Ms E (the father’s partner), affirmed on 8 November 2010 and filed on 11 November 2010;

   ·the affidavit of Ms E affirmed on 14 November 2011 and filed on 15 November 2011; and

   ·Case outline document dated 6 December 2011.

2. In addition to their affidavits, the father and Ms E both provided oral evidence and were cross-examined by Ms Barnett and Ms Karagiannis. The paternal step-grandmother was not required for cross-examination and her affidavits were accepted into evidence unchallenged.

3. The father presented as well-spoken, calm, child-focused and ready to concede when an appropriate proposition was put to him.

4. The father’s partner, Ms E, also presented as well spoken, calm, and child-focused. Moreover, Ms E also presented as honest in her views, in particular, her own view that [Y] should remain in the care of the mother.

Mother’s evidence

1. The mother relied on the following documents at the Final Hearing:

   ·Response filed on 21 January 2010;

   ·the mother’s affidavit sworn on 19 January 2010 and filed on 21 January 2010;

   ·the mother’s affidavit sworn and filed on 7 December 2010;

   ·the mother’s affidavit sworn and filed on 8 December 2011;

   ·the affidavit of the mother’s partner, Mr K, sworn and filed on 8 December 2011;

   ·Case outline document dated 8 December 2012 [sic].

2. In addition to this material, the mother and Mr K also gave oral evidence to the Court and were cross-examined by Mr Blackah and by Ms Karagiannis.

3. Generally speaking, the mother presented as a polite witness who appeared genuinely concerned for the welfare of the children. However, not all of her responses were child-focused and she minimised the impact on [Y] of her multiple changes in residence and the issues associated with [Y]’ schooling. That said, the mother was generally prepared to make concessions when an appropriate proposition was put to her.

4. The mother’s partner, Mr K presented as a polite witness who answered the questions that were put to him.

Ms M’s evidence

1. Ms M prepared the first Family Report, the Addendum Report and the Updated Family Report in this matter. At the Final Hearing, Ms M was cross-examined by the parties and re-examined by the ICL regarding her reports.

First Family Report released 10 November 2010

1. The first Family Report prepared by Ms M generated the following options for consideration:

   “49.That both of the boys live in the joint care of their father and paternal family and spend time with their mother during school holiday periods:

   The benefits of this option are that it would ensure that both of the boys have stable accommodation and education. The risk of such an order is that, in living together, due to the nature of [X]’s difficulties and how much attention they demand, neither of the boys will have their needs met and their relationship could become mutually destructive. A further risk is that being removed from his mother might prove intolerable for [Y].

   50.That both of the boys live with their mother and spend time with their father during school holidays:

   The benefit of this would be that the children are with their primary attachment figure. Aside from the issue of the boys living together and the risk associated with this (as outlined in the previous option), there is a risk that [X], in being destabilized, will lose the gains he has made thus far and will present both his mother and whatever educational institution he attends with the same problems he had before. The other risk is, of course, one of continuing instability both in terms of where the boys live and where they attend school, which is not desirable for either boy but which could prove disastrous for [X].

   51.That [X] remain in the joint care of his father and paternal family and spend time with his mother and brother during school holidays and that [Y] live with his mother and spend time with his brother and father during school holidays:

   The benefits of this are that [X] remains in a stable situation and that [Y] is where he says he wants to be. The disadvantages are: [X] is separated from the parent he wishes to live with; the brothers are separated; and [Y] remains in circumstances which, on the basis of past history, are likely to remain unstable.

   52.It is recommended that, where ever he ends up living, [Y] undergoes a full assessment to ascertain his educational needs and whatever other special needs he might have.”[5]

   [5] Family Report, 10 November 2010, paragraphs 49-52.

Addendum Report released 7 December 2010

1. The Addendum Report was necessary because the father’s partner,

   
   

   Ms E, was not included in the initial interviews.

2. At paragraph 12 of the Addendum Report, Ms M provides the following evaluation:

   “Ms E’s introduction to [X] and [Y], as Mr York’s partner, appears to have been managed with sensitivity. For her part, Ms E would appear to have a sensible appreciation of the situation and, importantly, the capacity to ask for help and advice when she needs it.”

Updated Family Report released 1 December 2011

1. The interviews for the Updated Family Report were conducted on 16 November 2011. The mother was interviewed by telephone as she was unable to travel to Sydney because of illness. Her partner, Mr K, was also not interviewed because of “work commitments”.[6] In addition to the parties (including the paternal step-grandmother) and the children, Ms M also interviewed Ms O, the maternal grandmother.

   [6] Updated Family Report, 1 December 2011, paragraph 12.

2. Ms M’s overall evaluation is contained in paragraphs 30-32 of the Updated Family Report:

   “30.      As in their previous Family Report interviews, [X] and [Y]’s attachment to their mother was, in different ways, in evidence. In [X] it expressed itself in the wish for [a] car with which he would drive to Queensland, where his mother lives, and his upset about the missed phone call from his mother. In [Y] it expressed itself directly in his wish to live with her. The question remains, however, as to where the boys’ needs in relation to having a stable home and school would be best met and, thereafter, what weight these should be given against any wishes they might have. The needs of the two boys need to be considered individually, as well as together.

   31. Firstly, with regard to [X], his progress would seem to validate his parents’ decision in December 2010 to leave him in the care of his father and paternal family. His behavioural difficulties were of a serious nature and are reported to have settled to a significant degree in his current school and family environment. He has also apparently made progress in his academic performance. It would appear to be generally agreed by the parties concerned that it is in his best interests for him to remain living with his father and attending the same school. In connection to the issue of [X] being physically disciplined with a belt, which Mr York agreed he has, albeit infrequently and as a last resort measure: Mr York indicated his willingness to follow any advice given by the psychologist involved in [X]’s care with regard to this issue and the advice of the School Counsellor. Mr York appears to have previously followed parenting advice that he has been given and, if he is given an alternative last resort way of managing [X]’s behaviour, it is assessed that he is likely to use it.

   32. [Y] does not present the same sort of difficulties as [X] in relation to behavioural disturbance and containment of impulsive and aggressive behaviour. Indeed, aside from some difficulties which, it seems, followed his mother’s separation from Mr Werber, he would appear to be a child who is more inclined to depressive withdrawal rather than aggressive acting out. This presents a risk of his difficulties being overlooked. [Y], like [X], also struggles academically and might well benefit from the type of intensive input that his brother has had. His academic performance is unlikely to have been assisted, and is more likely to have been undermined, by the number of changes of school he has experienced. It would, therefore, seem crucial that his schooling remains stabilized. His mother and maternal grandmother each describe [Y] as being more settled and as appearing to be happier. He is also said to have developed a life for himself in the community in which he currently lives and where members of his mother’s family also live nearby, including his much loved maternal grandmother. While there might be clear benefits to his living with his father, there is also a risk associated with disrupting him yet again, particularly if he is now in the position to lay down some roots. If there is a way of ensuring a level of continuing stability is maintained from this point on in his childhood and he can be supported educationally, as well as in whatever other way he might need, in his current environment then remaining living with his mother might be the least disruptive option for him.”

3. Ms M thereafter provided the following recommendations in paragraphs 33-34 of the Updated Family Report:

   “33.It is recommended that [X] live with his father.

   34.If the mother is able to give some assurance that she will stay living in the same area and will not uproot [Y] again and if, together with the mother, the father were able to do things from a distance that might lead to [Y] receiving additional support, for example in the ways that have been recommended in his psychological and speech assessments, then it might be more prudent to leave him where he is rather than subjecting him to yet another disruption (with uncertain consequences for both of the boys). On the other hand, if this is not possible, consideration might need to be given to his living with his father and Ms E so that he can have access to the same opportunities as his brother. The cautionary note on this option is that the end result for both boys is unpredictable.”

4. Under cross-examination from Mr Blackah, Ms M acknowledged that she was “leaning towards” supporting a recommendation for [Y] to live with the father and [X] because of the following:

   “… [X] has done really well, and, you know, the supports that are there. The fact that his father has remained living in the one area for a long extended period of time, you know, he’s worked in the one job for a long period of time; those sorts of things. There’s a level of stability.”[7]

   [7] Ibid.

5. Ms M also agreed that there has been a great deal of instability in the mother’s life, due to her relationship and residential instability.[8]

   [8] Ibid. page 17.

6. That said, Ms M also acknowledged [Y]’s wish to remain living with the mother and her concern as to how the mother will react if the Court decides that [Y] should live with the father.[9]

   [9] Ibid.

7. In answer to a question by Ms Barnett, Ms M agreed that moving [Y] from the mother’s care would constitute removing him from “the one stable thing that he has had in the past”.[10] Ms M went on to state that this caused her two specific concerns. Firstly, how [Y] “will feel and what it will mean to him”, and secondly, “what it will mean to the mother and how [Y] perceives that and how he might feel anxious about her”.[11] Ms M later agreed with the following suggestion from Ms Barnett:

   “Isn’t it true that removing [Y] from his mother and placing him with his dad, to live with his dad, that there’s a real possibility that, as you used these terms before, that the apple cart of [Y] could be turned over?

   ‑‑‑Yes. That is a possibility. I don’t know how that would be for him. I really don’t.”[12]

   [10] Ibid, page 22.

   [11] Ibid.

   [12] Ibid, page 28.

8. Ms M was also asked by Mr Blackah about her interview with [Y] for the first Family Report where, at paragraph 36, she refers to [Y] indentifying as have “two ‘Dads’”[13]. Ms M confirmed that while this was, of course, a reference to Mr Werber, [Y] had also identified with the mother’s subsequent former partner “[Mr R]” (referring to Mr R) and her current partner, “[Mr K]” (referring to Mr K).[14] Ms M went on to note from Mr K’s affidavit that both children are now “happy to call [Mr K] their second Dad” and agreed that this was an issue because:[15]

   “…this is rather important … it all represents broken attachments ... Because if I think about [Y] and Mr Werber, my understanding is [Y] actually reacted quite badly to not being able to maintain a relationship with Mr Werber. And he told me that as well, that he felt bad about that initially. So he has gotten used to it, but the crucial thing about this is that they represent broken attachments as well.”[16]

   [13] See the first Family Peport, paragraph 36.

   [14] Updated Family Report, 1 December 2011, page 18.

   [15] Ibid.

   [16] Ibid.

9. In relation to the issue of timing any change in [Y]’s residence from the mother to the father, Ms M gave the following evidence following questions from Mr Blackah:

   “Just lastly, if [Y] because of the Queensland school system in fact has another two years of primary school to go, would that alter your view that any change should be left till the beginning of high school?

   ‑‑‑Yes, actually that would be a long period unless actually – yes, it would, yes. I was going to say unless something was put in place at the school he was attending in Queensland and I don’t know what’s available in that area, it’s an area I have not - I don’t know the town, it seems quite a small one, so I don’t know what the access to services may be up there.

   Do you not think that if there’s going to be such a significant change in his life that that should happen sooner rather than later and that it should happen at the commencement of the next school year?

   ‑‑‑Look, probably with regard to [Y] if there’s going to be a change, it probably would be better to happen next year, particularly if primary goes on for a couple of years. As I say, I am torn on it because normally I would say let a child finish their primary, particularly when he is – this is actually the first time he has been at a school for this length of time at one school and he talked about friends, actually having some friends which was different from the last time I saw him and one is so – one can only feel for him being uprooted again, I guess I would put it that way. And yet there’s this other side to it.

   And if the school that [X] is going to, [omitted], is a school that goes all the way through to year 12 and if that was the school that [Y] was enrolled in, that would mean he would only have to change school once?

   ‑‑‑Yes, that’s right.

   Which he is going to have to do in any event in Queensland, isn’t he, if he remains up there?

   ‑‑‑Yes, when he goes to high school, particularly if there is another move.”[17]

   [17] Ibid, page 21.

10. Ms M was asked by Ms Barnett about the relationship between the children:

    “The father’s partner, Ms E, mentioned that she sometimes sees a little bit of sibling rivalry when they’re together. Is that right?

    ‑‑‑Yes, that’s right. And … Ms Werber commented on that and that’s normal. I’m not going to say it’s not – it is actually normal. Brothers fight each other. They rumble, they – and it is normal for children to feel jealous of one another. The question here is whether it reaches a level of intensity and whether, in the context of deprivation – history of – a level of deprivation and that’s what we need to talk about here. Emotional. Whether it gets even more intense and whether [X] will start to play up. Of course he is obviously an externaliser, he is one who, if he is worried about stuff or gets upset about stuff, then his behaviour is disrupted, whereas with [Y] for the most part, he is more likely to withdraw and get anxious and depressed. But I don’t know what the – it may be quite all right. It may be balanced, you know, by the fact that the two boys have always lived together. You know they like each other etcetera.

    Although the boys haven’t lived together for almost three years now?

    ‑‑‑Yes. That’s right.

    There’s these symptoms of sibling rivalry and some aggressive behaviour towards the end of their time together?

    ‑‑‑That’s what Ms Werber described. Yes”[18]

    [18] Ibid, page 26.

11. Ms M was asked by me about the potential benefits and detriments of the children living in the same household and she responded:

    “… under normal circumstances … I would say these boys need to be together and they need to learn how to share, how to share the parental time, how to share all of that and … they need to discover the capacity to deal with their jealousy and all of those things that we all have to learn how to deal with in the process of growing up. I think here … to some degree, it’s about the level of, I suspect, an emotional deprivation or something because there has been just such an unusual level of instability in their lives and whatever impact that has had and I think probably [X] externalised that and – but there’s a sense in which - my answers can’t be as helpful as I might wish them to be because the assessment that I did wasn’t sufficiently in depth to actually understand what it was that was happening for [X] that was leading to the behaviour that he was displaying which was so serious. And therefore at that level, everything becomes a bit more unpredictable so I’m not sure how much of his improvement … I feel absolutely certain the stability, all of that, would have assisted [X], that a child with his sort of difficulties doesn’t cope terribly well with constant change and that sort of thing so I feel certain that it would have helped but I’m not sure did it help him to have one-to-one, all of that attention focused on him, I don’t know. But I can see where you are coming from, your Honour. There are advantages to having the boys together because they do, through the ordinary sibling relationships, learn about their own jealousy and rivalry and learn how to cope with that, learn how to deal with the three-person situation, if you like, you know, the sharing of parent[s]…

    And it’s a disadvantage having them separated because, as I say, it’s who are people left with once parents have gotten old or have died. There’s your brothers and sisters, they are the relationships you are left with”[19]

    [19] Ibid, page 29.

1. Lastly, in respect of the allegations that the father had used corporal punishment on the children in the past, I asked Ms M about the messages that physical discipline may give to children:

   “… it can actually give the message that in fact violence is an acceptable way of dealing with problems that arise. It also introduces, if it were the belt, I mean sometimes smacking doesn’t do it but it can actually introduce a level of fear into the relationship which – and sometimes a level of fear can be helpful but not in terms of when it involves, I think, things like the belt or using implements at that level, it may not be helpful, it may – but what you rely on particularly as a child gets older is the positive aspects of your relationship with the child, the child’s love for you and desire to please you and want to stay on your side type of thing, that you rely on for children to do as they are told.”[20]

   Ms M indicated that, as the father has demonstrated that he is capable of following and implementing advice about parenting (which included better strategies for dealing with misbehaving children), any return to the “belt” was unlikely.[21] That said, Ms M was also of the view that “it may help” the father if a no-corporal punishment order was made which could be extended to both parents and any third party.[22]

   [20] Ibid, page 30.

   [21] Ibid.

   [22] Ibid.

Law and discussion

1. All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”).

2. Parenting orders are defined in s.64B of the Act and provide for, inter alia:

   ·where a child is to live;

   ·the time a child is to spend with another person; and/or

   ·otherwise allocate parental responsibility in relation to a child.

3. Section 60CA of the Act makes it clear that, for the purpose of making a parenting order, the Court must regard the best interests of a child, or the children in this case, as the paramount consideration.

4. What is considered to be in the best interests of children in parenting disputes depends on the particular circumstances in each case as different circumstances require different resolutions. That said, to determine the best interests of a child, the Court must consider the primary and additional considerations under s.60CC of the Act. These specific provisions will be examined in light of the evidence shortly.

Parental responsibility

1. Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order “may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child”.[23] In the absence of a parenting order, s.61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child”.

   [23] Section 64B(3) of the Act.

2. Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. This not only includes those duties and responsibilities relating to such matters as health and education, but also, the “general direction in life that is so important for children in teenage years”.[24]

   [24] Lindell v Ranteri [2010] FamCA 52 at [31] (per Cronin J).

3. In s.4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:

   “‘major long-term issues’, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a)the child's education (both current and future); and

   (b)the child's religious and cultural upbringing; and

   (c)the child's health; and

   (d)the child's name; and

   (e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”

4. Section 61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility.

5. Section 61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence.

6. In addition, under s.61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to a child’s best interests. Those interests are determined by reference to the matters in s.60CC of the Act in light of the evidence.

7. If the presumption of equal shared parental responsibility is not applied, or is rebutted, then the Court must still make an order which is in the best interests of the children, again, taking into account the considerations set out in s.60CC of the Act.

8. In the present case, there is no dispute between the parties that each should have equal shared parental responsibility for the children. That said, this issue more complicated because an interim order has been in place for some time whereby the parties equally share parental responsibility with the paternal step-grandmother. While the ICL seeks the continuation of this outcome, the parties and the paternal step-grandmother do not, although the father is less concerned about the order being retained.[25]

   [25] Transcript, 9 December 2011, page 55.

9. Although understandable given the past circumstances, the imposition of a parental responsibility order upon a parent – and in particular a non-parent – against their wishes is clearly problematic.

Equal time or substantial and significant time

1. If a parenting order is to provide for a child’s parents to have equal shared parental responsibility, then the Court is required under s.65DAA of the Act to consider whether a child’s best interests would be served by making an order that a child spend equal time,[26] or alternatively, substantial and significant time,[27] with each parent.

   [26] Section 65DAA(1) of the Act.

   [27] Section 65DAA(2) of the Act.

2. Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the “best interests of the child” and is “reasonably practicable” given the circumstances. Section 65DAA(2) to (5) of the Act provides specific statutory criteria for the Court to consider.

3. Neither party in this case is advocating for the children to spend equal time or substantial and significant time with each parent. Such is simply not practicable given that the parties live so far apart from one another in different States.

Injunctions and restraining orders

1. There are currently interim orders restraining the parties from certain behaviour, including denigration of the other party or the other parties’ family. The ICL is also seeking that a restraint be placed upon the parties in relation to physically disciplining the children.

2. The power of the Court to grant injunctive relief in areas relating to a child arises from s.68B of the Act. This section is directed to a child but includes adults in a situation associated with a child.

3. Section 68B of the Act states:

   “(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

   (a)  an injunction for the personal protection of the child; or

   (b)  an injunction for the personal protection of:

   (i)a parent of the child; or

   (ii)a person with whom the child is to live under a parenting order; or

   (iii)a person with whom the child is to spend time under a parenting order; or

   (iv)a person with whom the child is to communicate under a parenting order; or

   (v)a person who has parental responsibility for the child; or

   (c) an injunction restraining a person from entering or remaining in:

   (i)a place of residence, employment or education of the child; or

   (ii)a specified area that contains a place of a kind referred to in subparagraph (i); or

   (d)  an injunction restraining a person from entering or remaining in:

   (i)a place of residence, employment or education of a person referred to in paragraph (b); or

   (ii)a specified area that contains a place of a kind referred to in subparagraph (i).

   (2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

   (3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.”

4. There is an overlap between ss.68B(1) and s.68B(2) of the Act in that similar orders may be made under either provision. That said, s.68B(1) of the Act is a stand-alone, or independent, power, meaning that there is no necessity for the existence of other proceedings. In contrast, s.68B(2) of the Act is ancillary and only operates in the context of existing proceedings and would be in aid of those proceedings. It appears that in the exercise of these injunctive powers, the “best interests of the child” is an important, but not paramount, consideration, unless the order or injunction is a parenting order.[28]

   [28] Flanagan & Handcock [2000] FamCA 150; (2001) 27 Fam LR 615; (2001) FLC 93-074; Bennett v Bennett [2001] FamCA 462, (2001) 28 Fam LR 231; (2001) FLC 93-088.

5. The evidence would support the retention of the current restraints that are in place, where relevant, and an order preventing either party from physically disciplining the children or allowing any third party to do so.

Best interests of a child

1. As stated previously, the Court is under an obligation to make parenting orders that it determines are in a child’s best interests. For this purpose, the Court will now turn to consideration of the factors in s.60CC(2), (3) and (4) of the Act in the context of this case.

Primary considerations: s.60CC(2)

Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents

1. It is clear from the evidence of the parties that, despite their difficulties in communicating with one another and the distances between their respective residences, they both accept the need for [Y] and [X] to have a meaningful relationship with the other party and the other party’s extended family. However, the parties differ on how this can be best achieved.

2. The Full Court of the Family Court of Australia (“the Full Court”) considered this provision and the concept of “meaningful relationship” in McCall & Clark [2009] FamCAFC 92 (“McCall”).[29] In McCall the Full Court stated:

   [29] The Full Court comprising of Bryant CJ, Faulks DCJ, Boland J.

   “109. The Act does not contain a definition of ‘meaningful’, nor does it provide any specific criteria to assess how parents either have, or should have, a ‘meaningful involvement’ in a child’s life. It does not give guidance to the interpretation of the phrase ‘meaningful relationship’.

   110. It is necessary we construe the language of the statute to determine whether the import of the legislation is clear without reference to extrinsic material.

   111. The Macquarie Dictionary defines the adjective ‘meaningful’ as ‘full of meaning, significant’. Significant is defined as ‘important; of consequence’

   112. The Shorter Oxford English Dictionary defines ‘meaningful’ as ‘Full of meaning or expression; significant …’ ‘Significant’ is defined as ‘Having or conveying a meaning; Expressive; suggesting or implying deeper or unstated meaning … important, notable; consequential ...’

   …

   118.It appears to us that there are three possible interpretations of s 60CC(2)(a):

   (a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (‘the present relationship approach’);

   (b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (‘the presumption approach’); and

   (c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (‘the prospective approach’).

   119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is ‘the prospective approach’ although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.

   120. We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.

   121. In coming to our conclusions we accept as appropriate the interpretation of ‘meaningful relationship’ set out by Brown J in [Mazsorski & Albright (2007) 37 Fam LR 518]. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C [[2006] FamCA 994].

   122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.”

3. The Court agrees with the submission of the mother that “given the distance between the parties it will be difficult for the child to have a meaningful relationship with the person with whom they do not live”.[30] That said, both of the parties and the ICL agree that the school holidays provides an opportunity for the children to spend some quality time with the parent with whom they do not reside, or with whom they will not be residing, into the future.

   [30] Mother’s Case Outline document, page 3.

4. It is possible that the creative use of internet and telephone technology (such as ‘Skype’ or ‘Facetime’) might assist [Y] and [X] to engage with their non-residential parent in their daily routine, particularly in regards to school-based activities. Despite judicial acknowledgement that virtual means of communication can assist in maintaining relationships,[31] “virtual visitation” is not currently a feature in these children’s lives and is certainly “no substitute for face-to-face contact.”[32] In this context, I agree with the following comments made by Altobelli FM in the case of Garvey & Eccles [2008]:

   “38.There is a real danger in relocation cases in putting too much weight on the availability of virtual visitation. Can a child have a meaningful post-relocation relationship with the non-relocating parent when that relationship depends on virtual visitation? ... I doubt very much whether the social science approach to meaningful relationship, that emphasises emotional closeness and authoritative parenting in the diverse contexts of parent-child interaction, lends itself to virtual visitation.”[33]

   [31] See for example M v S (2006) 37 Fam LR 32, at 48 (per Dessau J).

   [32] Ibid.

   [33] [2008] FMCAfam 1218, at [38].

5. That said, given the reality of this situation (i.e. the parents residing in two different states), and the addition of extended holiday face-to-face time, it is possible that the creative use of internet and telephone technology might assist to maintain a meaningful child/parent relationship into the future.

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

1. Both parties make criticisms of the other.

2. The father asserts that “[Y] has been exposed to the risk of physical and psychological harm whilst in the care of the mother by reason of neglect, and exposure to domestic violence.”[34] In this respect I note that the mother admits that she was the victim of domestic violence perpetrated by her former husband, Mr Werber. It is therefore highly likely that [Y] was exposed to this behaviour.

   [34] Father’s Case Outline document, page 2.

3. The mother asserts that the father’s admitted use of the “belt” in physically disciplining [X] is “concerning”.[35] The Court agrees. That said, the Court notes the father’s evidence that he has accepted and implemented the advice he has received in respect of non-violent, and arguably more effective, methods of disciplining children, particularly for a complex child such as [X].

   [35] Mother’s Case Outline document, page 3.

Additional considerations: s.60CC(3)

Section 60CC(3)(a): any views expressed by the child and any other 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

1. The mother submits that [Y] has remained consistent in his views supporting the retention of the status quo.[36] This is supported by the Updated Family Report[37]. The mother also submits that “[X] does not want to give an opinion at this time but previously wanted to live with the mother”.[38]

   [36] Ibid.

   [37] See comments made in the Updated Family Report at paragraph 25.

   [38]  Mother’s Case Outline document, page 3.

2. The father submits that the Court should be cautious in the weight that it attaches to [Y]’s views, particularly as it is “one of many factors and does not necessarily carry greater weight than” the other s.60CC factors.[39]

   [39] Father’s Case Outline document, page 2.

3. This is supported by the ICL who states in her closing submissions that despite [Y]’s views having been “crystal clear” since at least November 2010:

   “…the views of the child are never conclusive, they’re only one factor which the Court must have regard to in weighing up the entire pictire for the child, and unfortunately this is a matter where there are more pressing concerns for the child over and above fulfilling an expressed wish or an expressed view.”[40]

Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons …

[40] Transcript, 9 December 2011, page 45.

1. There is no doubt that both parties love [Y] and [X].

2. Both parties have re-partnered and the children appear to be developing a good relationship with their parents’ partners. This is particularly so in the case of Ms E whose relationship with the mother appears to be a positive and trusting one. This is a factor not always seen in these types of family law cases.

3. The mother’s relationship with Mr K is, of course, a more recent one, and follows the end of her marriage last year to Mr Werber and the more recent end of her relationship with Mr R.

4. It is somewhat concerning that [Y] and [X] both appear to spend little or no time with their half-sibling, [Z]. That said, the possible impact on [Y], should he remain in the mother’s care, of being involved in any family law proceedings initiated by the mother in respect of [Z] is unknown.

1. Both children also spend regular time with their paternal and maternal grandparents and these relationships appear warm and positive.

Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent

1. While both parties argue that they have individually been willing to encourage a closer relationship between the children and the other party, each make criticisms of the other in this regard.

2. That said, it is noteworthy that the parties have, in more recent times, been able to organise the children to spend their school holidays together and, of course, spend time with their non-resident parent.

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 …

1. The father’s proposal, supported by the ICL, will result in a significant change to the children’s existing circumstances during school term time. In his submissions, the father acknowledged that the likely effect of a change in residence for [Y] “is that he would be unhappy”.[41] That said, he further submitted that [Y]’ disappointment might “be addressed by supportive measures”.[42]

   [41] Ibid.

   [42] Ibid.

2. On the other hand, the mother submits that the effect of a change in residence for [Y] to the father is unknown and untested and carries a risk that “the apple cart will be turned over because of the change in circumstances” for one or both of the children.[43]

   [43] Transcript, 9 December 2011, page 47.

3. The likely effect on the children of remaining separated, should the mother’s proposal and [Y]’s views prevail, is also an important issue to consider in this case.

4. There is significant judicial authority accepting the evidence of social scientists that siblings should only be separated during their childhood years in exceptional, or compelling, circumstances.[44] On this point, Hutley JA made the following comment nearly 40 years ago in Barnett v Barnett (1973) 2 ALR 19:

   “The cases in which the welfare of the children requires that a family be divided must be very rare…There may be special circumstances, for example, where children detest each other …widely separated in age, or the means of neither parent alone permit him or her taking care of all the children, where such division may be in their interests.”[45]

   [44] Barnett v Barnett (1973) 2 ALR 19, at 29 (per Hutley JA), see also Bennett & Bennett (1991) FLC 92-191; and Mitchell & Sposato [2009] FMCAfam 1081.

   [45] Barnett v Barnett (1973) ALR 19, at 29 (per Hutley JA).

5. That said, the Full Court (per Murray and Lusink JJ) stated in In the Marriage of Hayman (1976) 2 Fam LR 11, 558; 14 ALR 216 at 240 that:

   “It seems to us that there is a substantial difference between the making of a decision as to whether a family be divided as the result of a hearing, and the making of a decision as to whether a family already divided for some time, should remain divided or be reunited. When the latter is the case, other factors such as the effective change of the environment and presently existing relationships are at least two of the matters which have to be taken into account. …”[46]

   [46] (1976) 2 Fam LR 11,558, at 11,578.

6. While this view was adopted in In the Marriage of Mathieson (1977) FLC 90-230; (1980) 6 Fam LR 116[47], the trial judge (Fogarty J) also stated that:

   “However having regard to the matters contained in ss 43 and 64 and the existing social views of the community it appears to me that the court should strive to maintain the family unit as far as is practical in the circumstances and this may involve an approach which initially at least gives primacy to avoiding separation of the children where that is possible. However clearly the ultimate issue is still the welfare of that individual child and it must always be a question whether that test is advanced by requiring that child to continue to live in the same household as his brothers and/or sisters"[48]

   [47] 6 Fam LR 116 at 120

   [48] 6 Fam LR 116 at 126-127

7. Of course, the proposal of the father and the ICL does not, in fact, involve a separation of siblings but rather a reunion of sorts for [Y] and [X] who have lived in separate households since late 2008. Consequently, the question is rather one of whether the children should be reunited.

8. The potential for sibling rivalry between [X] and [Y] should they live together with the father was also raised in the course of the Final Hearing. The father submits that “There would be benefit in reuniting these siblings; a bit of normal sibling rivalry is healthy…”[49] Again, the mother submits that there are question marks as to whether the children will get along or not.[50] Ms M’s comments on this have already been extracted in this decision.

   [49] Transcript, 9 December 2011, page 47.

   [50] Transcript, 9 December 2011, page 47.

9. As to case law on this point, in the matter of H & H (1994) 19 Fam LR 165 it was proposed that siblings be reunited, albeit after only several weeks, Nicholson CJ observed that it is generally accepted that children benefit from growing up with their siblings and, relevantly here, that:

   “…The fact that siblings fight from time to time does not seem to me to be a proper reason for separating them. In fact, it may well be part of the learning of living skills which is very important to them in later life.”[51]

   [51] H & H (1994) 19 Fam LR 165, at 168 (per Nicholson CJ); also see B & O & M [2005] FMCAfam 379 at 180 (per Brown FM)

10. On balance, I find that there are no compelling or special circumstances in this case which justify separating, or rather, keeping [Y] and [X] separated. In addition, the evidence tends to favour the father in that the likely potential benefits in a change of circumstance for [Y] outweigh the potential risks in him remaining with the mother.

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

1. The parties live some distance apart from each other. While there is a live issue about the need for the children (and the parties) to travel some distance to ensure that [Y] and [X] have a meaningful relationship with both parties as well as with their half sibling, [Z] (if possible), this is unavoidable given the residential circumstances of the parties. Costs will be incurred regardless of whether [Y] continues to live primarily with his mother or moves to live with his father and [X].

Section 60CC(3)(f): the capacity of each of the child's parents, and any other person, to provide to the needs of the child, including emotional and intellectual needs

1. I agree with the father in that parenting capacity is a “significant issue” in this case and that “to some extent it overlaps with [the] attitude to the responsibilities to parenthood.[52]

   [52] Ibid.

2. The father goes on to submit:

   “The mother contravened an interim order by failing to arrange an assessment for [Y]. Whilst living with her, it is submitted, [Y] has not thrived, and would be unlikely to do so in the future. The contrast with [X]’s development since he came into the care of the father is stark.

   A psychologist, Ms M, “strongly recommended” further assessment of [Y]’s intellectual and academic skills. The court could not be confident that the mother would ensure that this would happen, but could be well satisfied that the father would.

   In addition to the father, the children also receive the very considerable support and care of his partner Ms E whilst in his home.”[53]

   [53] Ibid.

3. The mother submits that there is “a concern regarding the father’s capability to discipline the children”.[54] I refer to my previous comments on this issue and note again the father’s evidence that he has accepted and implemented the advice he has received in respect of non-violent methods of disciplining children.

Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

[54] Mother’s Case Outline document, page 3.

1. There is evidence before the Court that both children (and in particular [X]) require, and will continue to require, assistance with their learning and development.

Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child …

1. This consideration is not relevant to the present dispute.

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. As previously stated, each party questions the other’s parenting ability and I reiterate my earlier comments on this issue.

Section 60CC(3)(j): any family violence involving the child or a member of the child's family

1. I refer to my earlier comments relating to the mother’s admission that she was the victim of domestic violence perpetrated by her former husband, Mr Werber, and the likelihood that [Y] was exposed to this behaviour.

Section 60CC(3)(k): any family violence order that applies to the child or remember of the child's family …

1. It is not clear whether there is any current family violence order that is relevant to the mother.

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

1. While the Court proposes that any order that it makes be subject to any agreement between the parties that benefits the children, it is clear that the parties will require specific Court orders to assist them in their future parenting.

2. The Court is confident that once these parenting proceedings are resolved and defined orders are in place, there is a reduced likelihood of any further proceedings in the immediate future. That said, the Court believes the parties would be assisted by a Court order that would require the parents to resolve any future difficulties with the assistance of a Family Dispute Resolution Practitioner.

Section 60CC(3)(m): any other fact or circumstance that the Court thinks is relevant

1. It is somewhat concerning that neither the mother nor Mr K attended the interviews with Ms M for the Updated Family Report. While I acknowledge that the mother cited medical reasons to explain her non-attendance, no medical evidence was tendered. I find the work-related reasons for Mr K’s non-attendance largely unconvincing.

2. In addition, I find the non-compliance by the mother with respect to the order made by consent on 8 December 2010 for [Y] to be assessed in relation to his educational needs both disappointing and disturbing. While I appreciate that over the last year the mother has gone through a marriage breakup and the breakup of a subsequent relationship, her non-compliance with a Court order is a serious matter. It has also produced a delay in remedying [Y]’s educational challenges.

Section 60CC(4) of the Act

1. The Court is also required under s.60CC(4) of the Act to consider the “extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent”.

2. I again refer to and reiterate the comments made earlier in this decision.

Conclusion

1. Having considered the evidence and submissions in light of the structured discretion in the Act, the Court is satisfied that it is in the best interests of the children:

   ·for the parties to continue to have equal shared parental responsibility for the children, and I am further satisfied that there is no longer any need for that responsibility to be shared with the paternal step-grandmother with respect to [X] or otherwise to be extended to include [Y];

   ·for [Y] to live with the father (and [X]) and spend time with the mother as follows:

   o    for one half of the Easter school holidays in each year, as follows:

   §in odd-numbered years, the second half; and

   §in even-numbered years, the first half;

   o    for two out of three weeks of the June/July school holidays in each year, as follows:

   §in odd-numbered years, the second two weeks; and

   §in even-numbered years, the first two weeks;

   o    for half of the September/October school holidays in each year, as follows:

   §  in odd-numbered years, the second half; and

   §  in even-numbered years, the first half;

   o    in the long summer school holidays in each year, as follows:

   §in long summer school holidays commencing in odd-numbered years, the first four weeks; and

   §in long summer school holidays commencing in even-numbered years, the final four weeks.

2. There will be an order restraining each of the parties from denigrating the other, their partners and the like in the presence of the children.

3. There will also be a restraint on the parties from physically disciplining the children, as sought by the ICL.

4. In the event that they are unable to reach agreement relating to the children’s long term care, welfare and development, there will be an order that the parties participate in family dispute resolution.

5. As the Court received no final minute of order from either party or the ICL, it is difficult to ascertain what other orders (e.g. changeover) are most appropriate and practical for the parties in light of this decision. That said, I note that the ICL made brief reference to such in her closing submissions though it is unclear whether those orders were consented to by the parties.[55]

   [55] Transcript, 9 December 2011, page 46.

6. The interim orders contained in the Minute attached to the Orders made 8 December 2010 will continue where relevant.

7. I will give the parties an opportunity to confer with respect to these other issues and return before me on a date and time to be fixed for further submissions on those issues only. The parties and the ICL will also have leave to forward a minute of consent to Chambers for consideration should an agreed minute with respect to such issues be forthcoming. In the event that I am satisfied with any such minute then the future listing can be vacated and those orders made in Chambers, together with Orders discharging the appointment of the ICL and otherwise dismissing all extant applications before this Court.

8. I would also note for completeness that Ms Karagiannis indicated at the end of the Final Hearing that the ICL had no costs application.[56]

   [56] Transcript, 9 December 2011, page 64.

9. Lastly, there will be final orders and notations of the Court to reflect this decision.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Monahan FM

Date: 19 January 2012