ZAMMIT & ZAMMIT
[2020] FamCA 950
•19 August 2020
FAMILY COURT OF AUSTRALIA
| ZAMMIT & ZAMMIT | [2020] FamCA 950 |
| FAMILY LAW – FINAL PARENTING – where parents eventually agreed on all aspects of parenting arrangements except the proportion of time for which the children should live between their respective households during school terms – where each parent sought the children live with them for 9/14 days. FAMILY LAW – FINAL PARENTING – where children have been interviewed on multiple occasions by different professionals – where multiple family reports had been prepared – where children were displaying rejecting behaviour and refusing to spend time with the father - where children have an over-enmeshed relationship with the mother – where mother’s behaviour in failing to support the children’s relationship with the father was considered detrimental to them and emotionally abusive – where an interim disposition, by consent, had involved the children being taken from the primary care of the mother and placed with the father for some months without being able to spend time or communicate with the mother and then only having brief supervised visits FAMILY LAW – FINAL PARENTING – views of children discussed – where the family consultant last in time reported that the children felt they had not been listened to, that their views were ignored or considered to be inaccurate – where children were distressed and disempowered – where children suggest that their views are not worthy of consideration or what they say is not important – where children do not want to keep talking to professionals – where children have become entwined with in the litigation and report feelings of betrayal and bewilderment about what has happened to them, why and how – where family consultant expresses serious concern that ongoing court proceedings will become abusive to the children – where the success of future parenting arrangement will require the children to settle into an everyday routine that is explained to them, including the rationale for the arrangement, and which make sense to them in terms of the depth and quality of their relationships, incorporates their views and offers some validation to their experiences FAMILY LAW – PARENTING – where children were not kept informed of progress of proceedings and orders were not explained to the children – consideration of Australia’s obligations under the United Nations Convention on the Rights of the Child – where giving effect to the Convention on the rights of the child is an additional object of the Family Law Act 1975 FAMILY LAW – PARENTING – where parenting decisions under the Act draw legitimacy from taking into account the views of children, children’s views could be better handled FAMILY LAW – INDEPENDENT CHILDREN’S LAWYER – the role and responsibilities of the independent children’s lawyer – the need for training of Independent children’s lawyers on the specifics and practicalities of according children respect in proceedings commensurate with the age, cognitive capacity and maturity of each child whose interest they represent FAMILY LAW – PARENTING - where family consultant recommends oversight for implementation of orders – where section 65L supervision supervised counselling is not available – where there is a disproportionate amount of resources devoted to setting up parenting arrangements and insufficient resources within the court to assist parties with the implementation of arrangements after the final hearing – where post-order support should be offered by the court FAMILY LAW – FINAL PARENTING – where family consultant is requested to explain the final orders to the children prior to publication of the reasons for decision – where independent children’s lawyer directed to provide the children with a marked up calendar of their living arrangements for the next 12 months |
| Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 44 which entered into force for Australia on 2 September 1990 Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) |
| B & B: Family Law Reform Act (1997) FLC 92-755 Doyle and Doyle (1992) FLC 81,947 R & R: Children's Wishes [2000] FamCA 43 Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) |
| APPLICANT: | Mr Zammit |
| RESPONDENT: | Ms A Zammit |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Cheevers |
| FILE NUMBER: | MLC | 10480 | of | 2016 |
| DATE DELIVERED: | 19 August 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 2-5 December 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Arnold |
| SOLICITOR FOR THE APPLICANT: | Collins House Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Agresta |
| SOLICITOR FOR THE RESPONDENT: | Pearsons Lawyers Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Strong |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
IT IS ORDERED BY CONSENT THAT:
The Mother and Father have equal shared parental responsibility for the children of the marriage, X born … 2008 and Y born … 2011.
IT IS ORDERED BY THE COURT THAT:
The children remain living with the father until 3:30 p.m. on Friday 21 August 2020.
Paragraphs 1 and 2 of the Order made on 5 December 2019 be and is hereby discharged with effect from 3:30 p.m. on Friday 21 August 2020.
During school terms, the children live with the father from after school each alternate Thursday until before school on Tuesday commencing on Thursday 27 August 2020, with changeover to occur at school.
The children live with the mother during school terms at all times other than those referred to in the preceding paragraphs of this Order.
Every fourth day that a parent does not see the children face to face, the children or either of them may contact the other parent by electronic means between 7.00pm and 7.30 pm and the parent in whose care the children are do all acts and things necessary to facilitate the children or either of them contacting the parent who they have not seen.
IT IS FURTHER ORDERED BY CONSENT THAT:
Handovers not at the children’s school take place at the Father’s residence at the commencement of his time and the Mother’s residence at the conclusion of the Father’s time.
IT IS FURTHER ORDERED BY THE COURT THAT:
A reference in this Order to school terms, school term holidays, curriculum days and the long summer school vacation are references to the dates gazetted for the school at which X attends.
The parents do all acts and things to ensure that both children continue with sports competitions, lessons and tournaments, and in the event that either parent is unable to facilitate the children's participation in such activities, that they advise the other parent of their inability and the other parent be permitted to facilitate the child/children's participation.
The parents share equally in the reasonable costs of the children’s sports lessons, competitions, tournaments and necessary equipment including sports shoes.
Both parents are at liberty to attend sports tournaments, notwithstanding that the child participating in the tournament is not in his or her care.
Save for as provided in paragraph 9, the parent with whom the child is not living at the time of the lessons and competitions should not attend the lessons and competitions without the prior written consent of the other parent.
The parents be and are hereby restrained from attending the children’s school where they are not delivering or collecting the children or either of them from school in accordance with this Order, and that each parent, their servants and/or agents be restrained from removing the children or either of them from school when they are not the collecting parent, unless in the event of an emergency or as otherwise agreed in writing.
The mother pay to the father an amount equivalent to one half of the cost of preparation of any Family Report for which the father has already paid the full cost, with such payment to be made by the mother to the father from her entitlement to an alteration of property interests. In the event that the parents are unable to agree as to the precise amount owing by the mother to the father, they each provide their calculations to the Independent Children’s Lawyer who can liaise with my Associate, …@familycourt.gov.au to have the matter listed before me.
IT IS FURTHER ORDERED BY CONSENT THAT:
If the children are not otherwise in the care of the Father on Father’s Day, the children spend time with the Father from 5:00pm the Saturday before Father’s Day until the commencement of school or 9:00am the Monday following Father’s Day.
If the children are not otherwise in the care of the Mother on Mother’s Day, the children spend time with the Mother from 5:00pm the Saturday before Mother’s Day until the commencement of school or 9:00am the Monday following Mother’s Day.
On the children’s birthdays as agreed between the parties in writing and if they cannot reach agreement:
(a) If the birthday falls on a non-school day from 9:00am until 2:00pm with the parent with whom they are not living at the time.
(b) If the birthday falls on a school day from the conclusion of school until 6:30pm with the parent the children would not otherwise be spending overnight time with that day.
On the Mother’s and Father’s birthdays as agreed between the parties in writing and if they cannot reach agreement:
(a) If the birthday falls on a non-school day and the children would not otherwise be spending time with the parent on that day from 9:00am until 7:00pm with the parent whose birthday it is.
(b) If the birthday falls on a school day from the conclusion of school until the commencement of school or 9:00am if the children would not otherwise be spending overnight time with the parent that day.
For Eid al-Fitr and Eid al-Adha as agreed between the parties in writing and if they cannot reach agreement:
(a) In 2020 and each alternate year thereafter:
(i)From the conclusion of school, or 3:00pm if a non-school day, on the first day of Eid until 3:00pm on the second day of Eid with the Father.
(ii)From the conclusion of school, or 3:00pm if a non-school day, on the second day of Eid until 3:00pm on the third day of Eid with the Mother.
(b) In 2021 and each alternate year thereafter:
(i)From the conclusion of school, or 3:00pm if a non-school day, on the first day of Eid until 3:00pm on the second day of Eid with the Mother.
(ii)From the conclusion of school, or 3:00pm if a non-school day, on the second day of Eid until 3:00pm on the third day of Eid with the Father.
During school term holidays the children reside as follows:
(a) With the Mother for the first half in 2020 and each alternate year with the first half to commence from the conclusion of school on the last day of terms until 12noon on the middle Saturday and for the second half in 2021 and each alternate year with the second half to commence from 12noon on the middle Saturday and conclude on the commencement of school on the first day of school terms.
(b) With the Father for the first half in 2021 and each alternate year with the first half to commence from the conclusion of school on the last day of terms until 12noon on the middle Saturday and for the second half in 2020 and each alternate year with the second half to commence from 12noon on the middle Saturday and conclude on the commencement of school on the first day of school terms.
During the long summer holidays, the children reside as agreed between the parents and in default of agreement on a week about basis with the Mother to have the first week commencing from the conclusion of the school year in 2019 and alternating years thereafter and with the Father to have the first week in 2020 and each alternating year.
Notwithstanding paragraph 21 of this Order, the children reside with the Mother and Father over Christmas as follows:
(a) With the Mother from 3pm on Christmas Eve to 3pm on Christmas Day in 2019 and each alternate year and from 3pm on Christmas Day to 3pm on Boxing Day in 2020 and each alternate year thereafter.
(b) With the Father from 3pm on Christmas Day to 3pm on Boxing Day in 2019 and each alternate year and from 3pm on Christmas Eve to 3pm on Christmas Day in 2021 and each alternate year.
thereafter and with the Father to have the first week in 2020 and each alternating year.
Notwithstanding paragraph 21 of this Order, the children reside with the Mother and Father over New Year’s Eve/Day as follows:
(a) With the Mother from 3pm on New Year’s Eve 2020 to 1 January 2021 at 3pm and from 3pm on 1 January 2020 to 3pm on 2 January in 2020 and each alternate year.
(b) With the Father from 3pm on 1 January to 2 January at 3pm 2021 and from 3pm on New Year’s Eve 2019 to 3pm on 1 January 2020 and each alternate year.
The parties be authorised to obtain (at their expense) copies of the children’s school reports, newsletters, notices, photographs and such other material as parents may usually receive from time to time. These orders to be treated as providing such authorisation.
Both parties be permitted to attend parent teacher interviews, school concerts, assemblies, sports days and such other events as parents may usually attend from time to time.
In the event that the children, or either of them require urgent or emergency medical treatment the party with whom the children or either of them is then living immediately provide the other party with full details including information about any injury sustained by, and any treatment administered to, the child and the other party be permitted to liaise with the treating practitioners.
The party with whom any of the children is then living promptly notify the other of any health issues concerning the child that requires specialist attention and authorise all health professionals to provide information to the other party about any such attention or treatment. These orders to be treated as providing such authorisation.
The parties keep each other advised as to their current email, telephone and address details and advise as to any change thereto within twenty-four hours.
The parties, their servants and/or agents be and are hereby restrained from denigrating the other party or their family in the presence or hearing of the children and from allowing anyone else to do so in their presence or hearing.
The parties be restrained from physically disciplining the children or permitting any third party from doing so.
IT IS FURTHER ORDERED BY THE COURT THAT:
I reserve to the parents liberty to have any parenting application or contravention application which is filed within 24 months of the making of this Order listed before me for directions within 3 days of filing or so soon thereafter as I am reasonably available.
The thread of emails concluding with the email from the Independent Children’s Lawyer to my Associate dated 17 June 2020 be marked “C3” and remain on the court file.
IT IS DIRECTED:
That the minute of consent orders provided in the email dated 23 June 2020 at 12:28 PM be marked Exhibit “A” and remain on the Court file.
IT IS FURTHER ORDERED THAT:
All extant parenting applications be otherwise dismissed.
This matter be removed from the docket of the Honourable Justice Bennett NOTING THAT the matter remains with reserved judgment before the Honourable Justice Hartnett in relation to the financial proceedings.
That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zammit & Zammit has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 10480 of 2016
| Mr Zammit |
Applicant
And
| Ms A Zammit |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
These proceedings concern X, who is 11 years old and Y who is 9 years old. The parents and Independent Children’s Lawyer agree about with whom the children should live during school holidays and vacations and how special occasions should be allocated. The ambit of the dispute is where and with whom the children will reside during school terms. The parents agree that there should be equal shared parental responsibility. There are also financial proceedings between the parents and the paternal grandmother which have been heard by another Judge of this Registry.
The hearing before me proceeded for four days in December 2019. At the conclusion of the hearing, I made interim parenting orders which provided that the girls live with the mother during school term time in a two week cycle as follows:-
a.in week one from the conclusion of school or 3.30 pm on Thursday to the commencement of school or 9.00 am on Monday commencing from 5 December 2019;
b.in week two from the conclusion of school or 3.30 pm on Thursday to the commencement of school on Friday commencing from 12 December 2019 -
and with the father at all other times. The mother could communicate with the children each Tuesday between 5.00 pm and 6.00 pm with the father to facilitate the children telephoning the mother.
Mindful of the time which has passed since the evidence and submissions were concluded and that restrictions associated with the COVID-19 pandemic had intervened, my Associate wrote to the practitioners enquiring whether there were matters on which the court should be updated prior to making final parenting orders. On 17 June 2020 the Independent Children’s Lawyer responded that: [1]
[The] parties agree that there has been compliance with the orders. The parties agree that there does not need to be any further evidence produced to the court nor that is the intervention of a Family Consultant is required. They have advised that their positions are as put as the conclusion of the final hearing.
[1] Exhibit “C1”.
I anticipated that I would have been able to deliver my decision before now and I apologise to parties for the delay. However, in the scheme of things, I am satisfied that the shared care of the children, on the basis of spending nine out of fourteen nights with the father until now has been in their best interests.
On the last day of the hearing, the parties reached agreement on special days which was reduced to a minute exchanged between the parties but not provided to the court until June 2020. [2] I have incorporated that minute in my final order.
[2] Exhibit “ICL1”.
The main issue which still falls for determination is in what proportion the children’s living time during school terms is to be shared between the parents and whether that time is to be in two or more blocks.
The mother originally sought that the children live with her and spend time and communicate with the father each alternate weekend and each Wednesday for a dinner, as well as special occasions and half of each term holidays and week about for the long summer holidays. By the end of the hearing, the mother moved from that eleven/three split of time plus a dinner to seeking a nine/five arrangement in her favour. Counsel for the mother, submitted that the mother’s position shifted as a result of evidence received from the Family Consultant on the last day of the hearing about the children’s views and in particular, X’s preference of a nine-five arrangement in favour of her mother. The mother seeks that the children’s time with the father occur in one block from Thursday to Tuesday each second week. Counsel for the mother provided a minute of proposed order about the children’s sports activities providing that the parents facilitate the children’s participation in sports and, if the designated parent cannot do so, the other parent be permitted to facilitate the activity. Otherwise the mother seeks that both parents be permitted to attend special occasions such as sports tournaments but not the weekly activities such as training etc. The minute in relation to sports was agreed and is made by consent.
Ms Agresta, counsel for the mother, conceded that the most concerning issue in this case is the mother’s willingness and ability to facilitate a relationship between the children and the father. The children clearly have a very strong primary attachment to their mother as their primary carer but it is the instability of the attachment that is major cause for concern. The mother’s case is that she has demonstrated, through the supervised Sunday time she had with the girls and the more extended visits since, that she has supported the children’s relationship with the father, encouraged the children to return to their father’s care at the end of her time with them and that the children have returned each time. Ms Agresta submits that the recent past demonstrates that mother has realised the impact her actions have had on the children and that she has been motivated to change her behaviour. I would like to think that was true but the evidence, particularly the oral evidence of the mother, leads me to conclude that she has recently permitted the girls to have a relationship with the father and abided orders of the court because she fears that to do otherwise could result in the children being removed from her care permanently. The end result is the same but the stick ability of any arrangement which is based on the mother’s ability to persevere and permit the children to have a relationship with the father going forward, absent the scrutiny of a current court case, is the major issue to be considered.
The father’s proposal is a nine-five arrangement in his favour but in two blocks being that the mother will have the children from Thursday to Monday and Thursday night in the second week.
The Independent Children’s Lawyer was in line with the Family Consultant’s recommendation as it appeared in the Family Report which, in sum, was that the children spend time with the father five nights a fortnight from each alternate Thursday after school until before school on Tuesday with changeover to occur by way of the father picking the children up on Thursday and delivering them back to school on Tuesday and the mother taking the children to school on Thursday and picking them up Tuesday. The Family Consultant also recommended that the parents have equal shared parental responsibility, which is agreed and support by the Independent Children’s Lawyer. At the conclusion of the hearing, and due to the mother’s change in position, the Independent Children’s Lawyer supported the mother’s position, being a nine/five division in favour of the mother in the above block period. Regardless of the outcome, the Independent Children’s Lawyer seeks, and the Family Consultant recommended, that the order be explained to the children by the Family Consultant so that they understand what their everyday routine will be into the future.
Having now considered all of the evidence I am satisfied that it is in the children’s best interests to reside in a shared care arrangement during school term time whereby they live with the father for five out of fourteen days and with the mother for nine out of fourteen days with the days in two blocks. In terms of time, this represents a reversal of the arrangement which has existed since December 2019 and accords with the mother’s final position at the final hearing (supported by the Independent Children’s Lawyer). However, the mother should not be buoyed by any feeling of success at the outcome. It is a decision to which I have come in spite of her position. I have little faith in the mother’s parenting capacity and her responsibilities to parenthood but, taking all of the evidence into account, I have concluded that the children desperately want to live in her primary care and, providing they continue to spend not less than five nights per fortnight with the father, it is not proper to effectively punish the children for the mother’s inadequacies as a parent by requiring them to live predominantly with the father.
For reasons which will become apparent, it was essential that the final outcome be explained to the children by the Family Consultant who may invite the Independent Children’s Lawyer to attend. In order for the Family Consultant to be able to explain the outcome and underlying reasons to the children, a copy of these reasons has been released to the Family Consultant in advance of them being handed down.
I compliment counsel for their presentation of this case which was of narrow ambit but nonetheless difficult.
Family members
The father is 47 years of age and the mother is 45 years of age. The mother was born in Country R and the father was born in Australia. The mother is currently unemployed and has been since the birth of the two girls. She previously worked at the EE Company. The father is self-employed and operates a business trading as P Business.
X (12 years old) was born on … 2008 and is in Year 6 at FF Primary School. Y (8 years old) was born on … 2011 and is in Grade 3 at FF Primary School. The interim order made at the conclusion of the trial extended a nine-five arrangement in favour of the father which was initially ordered on 30 October 2019.
Independent Children’s Lawyer
Ms Amanda Cheevers, of Victoria Legal Aid, was appointed by Victoria Legal Aid to act as the Independent Children’s Lawyer for the children within the meaning of Division 10 of Part VII of the Family Law Act 1975 (“the Act”). Her role is to form an independent view, based on available evidence, of what is in the children’s best interests and then act in these proceedings in what she believes to be the best interests of the children.[3] She is not a legal representative retained by the children and she is not bound by any instructions from the children (or any of them).[4] The role of the Independent Children’s Lawyer is to deal impartially with the parties, to ensure that any views expressed by the children are fully put before the Court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the Court’s attention. The Independent Children’s Lawyer is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings,[5] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is possible and in the best interests of the children to do so.[6]
[3] Family Law Act 1975 (Cth) s 68LA(2).
[4]Ibid s 68LA(4).
[5]Ibid s 68LA(5)(d).
[6]Ibid s 68LA(5)(e).
Here, the Independent Children’s Lawyer has been particularly effective in achieving agreements between the parties and streamlining the proceedings. Ms Cheevers was responsive and diligent in providing information and presenting her case. To the extent that I am concerned about X and Y not being adequately consulted along the way, I am afraid that it is a common deficit of Independent Children’s Lawyers in proceedings in this court. Attention should be given in training Independent Children’s Lawyers on the specifics and practicalities of according children respect in proceedings, commensurate with the age, cognitive ability and maturity of each child whose interest they represent. According children respect is not an abstract concept. It is a task which requires equal measures of forward planning, organisation, professional skill, knowledge of childhood development and empathy.
It is common knowledge that the role of Independent Children’s Lawyers are inadequately remunerated. Budgetary restrictions imposed on Victoria Legal Aid have resulted in guidelines for eligibility for the appointment of an Independent Children’s Lawyer which mean that, if the court was to request an Independent Children’s Lawyer for X and Y today, the request would be declined. That would be a travesty on the facts of this case.
Relevant law – parenting issues
These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to the children, I must regard the children’s best interests as the paramount consideration.
Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the children are met’ by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
These objects may be regarded as the core values of the legislation.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(4) provides that an additional object is to give effect to the Convention on the United Nations Convention on the Rights of the Child[7] (“the Convention”) to which Australia became a signatory on 22 August 1990 and which entered into force for Australia on 2 September 1990. The four core principles of the Convention are:
[7] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
a)Non-discrimination;
b)Devotion to the best interest of the child;
c)The right to life, survival and the child’s full development — physically, spiritually, morally and socially;
d)Respect for the views of the child; that children have a right to have their say in decisions which affect them and to have their opinions taken into account and have a right to participate fully in family, cultural and social life.
In particular, the Convention provides:
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Reference to the Convention as an additional object under the Act when s 60B(4) was inserted under the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, some 21 years after Australia signed the Convention. The principles of the Convention are implemented as core values of our legislation rather than as provisions which create specific justiciable rights and responsibilities for individuals.
The significance of an object of the legislation being to give effect to the Convention, is that it provides a basis to interpret the Act within the context of international human rights principles (including the Convention) to the extent that is compatible with the express intention evinced in the legislation. However, an object does not give any legally enforceable rights to children[8] and is unlikely to be of great value in the adjudication of individual cases. [9]
[8]B & B: Family Law Reform Act (1997) FLC 92-755, 84,233.
[9] Ibid 84,220.
With or without s 60B(4) of the Act, and with the benefit of hindsight, the treatment of X and Y in these proceeding has been troubling in terms of their opportunity to be heard and the extent to which they have been informed about the progress of the proceedings affecting them. Excluding the children from knowledge of the proceedings affecting them is frequently justified as being a protective measure. This case has given me pause for thought that protection by ignorance has significant downsides for children in cases involving intractable parental conflict and that protection conferred by allowing the participation by the girls and some involvement in the process would have been more efficacious, as well as more humane for them. I will return to this issue at paragraphs 116 to 128 below, where I deal with the relevant history of the proceedings and the Family Consultant’s early oral evidence.
Section 65D of the Act provides that, subject to some associated provisions to which I will come later in these reasons, the Court can make such parenting orders as it thinks is proper.
Determining the child’s best interests
In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act.
The primary considerations echo the first two objects set out in s 60B of the Act. In s 60CC(2) and are described as follows:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[10]
[10] Family Law Act 1975 (Cth) s 60CC(2)(b).
Treatment of the additional considerations
The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. They include, “any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views”.[11] It is only necessary to consider those which are relevant to this case. I propose to have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, ascertaining the benefit that may flow for the children in having a meaningful relationship with both parents and what is necessary to ensure that they are protected from harm and exposure to abuse, neglect or family violence. Finally s 60CC(3)(m) of the Act requires me to take into account ‘any other fact or circumstance that the Court thinks is relevant’. This ensures that the infinite variety of individual children’s circumstances can be addressed.[12]
[11]Ibid s 60CC(3)(a).
[12] B & B: Family Law Reform Act (1997) FLC 92-755.
Burden of Proof
Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
In these reasons, a statement of fact is a finding of fact.
Evidence Relied Upon
All parties relied on the Memorandum to the Court of Ms OO dated 10 April 2019 and the Family Report of Ms GG dated 11 October 2019. The Family Consultant gave oral evidence and was cross examined.
The father relied on:
a)His amended Initiating Application filed 20 March 2018 (save that the Orders he now seeks are set out in his Case Outline)
b)His affidavit sworn 10 October 2019;
c)His affidavit sworn 15 November 2019;
d)The affidavit of Dr L affirmed 13 September 2019 annexing her psychological report dated 17 January 2019 (for historical context);
e)Report of Ms D incorrectly dated 29 January 2017, the correct date being 29 January 2018.
The father did not adduce evidence from the paternal grandmother. She was available and has first-hand knowledge of a number of issues on which the father was challenged, including the extent of her support of the father in looking after the girls. I infer from the father not relying on evidence from his mother that her evidence would not have assisted his case.
The mother relied on:
a)Her affidavit sworn 8 November 2019;
b)The affidavit of Ms HH sworn 8 April 2019 (attaching transcript of USB regarding the attempted changeover in March 2019); and
c)Supervision reports of her time with the children in August and September 2019.
The Independent Children’s Lawyer informed the court that she relied on the following documents:
a)The affidavit of Dr L affirmed 13 September 2019 annexing her psychological report dated 17 January 2019 (for historical context);
b)Affidavit of Dr D sworn 13 April 2018 (attaching report incorrectly dated 29 January 2017, not 29 January 2018) (for historical context);
c)Affidavit of Ms JJ sworn 12 September 2019 (report on supervised visits between mother and children in August and September 2019);
d)Affidavit of Ms KK sworn 1 July 2019 (attaching contact observation report dated 17 June 2019);
e)Affidavit of Ms LL sworn 24 October 2017 ();
f)Child Inclusive Conference Memorandum to the Court by Ms MM dated 7 April 2017;
g)Department of Health and Human Services Notice of Risk filed 28 March 2017;
h)Material produced pursuant to subpoena filed 1 July 2019 to FF Primary School;
i)Material produced pursuant to subpoena filed 25 July 2017 to Victoria Police;
j)Material produced pursuant to subpoena filed 25 July 2017 to NN Health Group;
k)Material produced pursuant to subpoena filed 25 July 2017 to DHHS;
l)Amended Initiating Application filed by the father on 20 March 2018;
m)Father’s affidavit sworn 20 October 2016;
n)Father’s affidavit sworn 25 January 2019;
o)Father’s affidavit sworn 19 March 2019;
p)Father’s affidavit sworn 10 October;
q)Father’s affidavit sworn 5 November 2019;
r)Father’s affidavit sworn 15 November 2019;
s)Amended Response filed by the mother on 8 November 2019;
t)Mother’s affidavit sworn 13 December 2016;
u)Mother’s affidavit sworn 21 December 2018;
v)Mother’s affidavit sworn 18 June 2019
w)Mother’s affidavit sworn 2 July 2019;
x)Mother’s affidavit sworn 8 November 2019.
There is a difference between a document to which a party may make reference and a document, the contents of which the party relies upon as part of the evidence in his/her case. The Independent Children’s Lawyer did not rely on all of the above documents and should have been more discerning when composing the list.
Credibility of the Witnesses
The only witnesses to give evidence or be cross examined were the father, mother and the Family Consultant, Ms GG. It was a striking feature of the manner in which this case was run that cross examination of either parent was not particularly directed to the very lengthy affidavit material about the history of the relationship. Most of the cross examination was about the very recent past, impressions and with a forward-looking perspective. As such the history of the matter, canvassed in great detail in affidavit material, is not something that I am readily able to make findings of fact about as a result of cross examination. I find the father to be a more satisfactory witness than the mother, in terms of telling the truth and giving an accurate account of others and himself. However, that does not extend to the marital history, about which neither were cross examined.
Father
The father’s overall impression as a witness was that he was honest.
The father was able to acknowledge that since the nine-five arrangement in his favour has been occurring since the 30 October 2019 orders, the children have been much more settled in being able to see their mother more regularly and that it has probably been the best thing that happened to them in 2019.[13]
[13] Transcript in Confidence, 2 December 2019, p. 39.
In the father’s examination in chief, he was asked about an incident that had recently occurred in relation to lunch orders. He had prepared lunch for the girls and sent them to school. When they arrived home, he saw that they had not eaten any of their lunch which included a sandwich and fruit and vegetables. They informed him that instead of eating their packed lunches, they had a lunch order. The girls explained that they did not know how this had happened but that they had their lunch delivered to them. They said that they assumed it was their mother who had organised the lunch orders. The father spoke to the staff in the school office the next morning and was told that the mother had attended the school and put in the orders at 9.00 am the previous morning and she had done the same thing on one occasion in the previous week. School staff informed the father that, as there was no order to prevent the mother from attending the school they were required to accept the lunch orders from the mother. The father explained to the staff that he saw this as undermining his authority as the parent whose care the children were in but did not pursue the matter further with the school. The father was eloquent in his explanation of how he felt this had undermined his parenting. He did not so much mind about his food going to waste, but he felt the mother’s intervention caused unnecessary conflict for the children in being presented with two lunches and having to choose which one to eat and then explain the occurrence to him. He was alive to the confusion the children would have experienced and the subtext of them not being adequately nourished in his care. My impression was that the mother’s action also had an air of omnipotence about it, as well as being disrespectful of the father’s role and capacities and that these elements would not have been lost on the children.
In cross examination, the father was able to explain that he had gone to the school to ask who had given the lunch order as he wanted to be sure it was the mother. He admitted that he assumed it had been the mother but did not want to “jump to conclusions” until he was sure it was the mother. The mother’s counsel Ms Agresta put to the father that he should have called the mother or emailed her to discuss the lunch order(s) rather than going to the school and, as counsel put it “complaining”. I do not agree. The mother interfered with the father’s care of the children in a way which was inappropriate on many bases. Indeed, I cannot identify a positive aspect of this intervention by the mother. The father’s empathy for the girls, his actions, motivation and attitude to his responsibilities as a parent were demonstrated to be sound. It was the mother who acted inappropriately by seeking to undermine the father particularly as she had begun spending five nights a fortnight with the children and therefore had plenty of opportunity to provide the children with lunch orders whilst they were in her care. The fact that the mother sought, through cross examination of the father, to criticise his conduct in these instances demonstrates what little insight she has into the children’s needs.
In the Family Report dated 11 October 2019 by Ms GG, the children’s views were recorded as X wanting to live with her mother and spend each alternate Thursday to Sunday with her father and Y wanting week-about. The father was unable to concede that the views expressed by the children in the Family Report of October 2019 where the genuine views of the children. His evidence was that the mother had influenced the children and that they had not spent enough time with him to form an attitude independently of the mother. Indeed, given the time for which the children were over held by the mother, the children had only very limited time with the father.
In cross-examination the father posited that, if final orders were made that were “close” to what X wanted, being an eleven-three arrangement in favour of the mother, then both children would be accepting of this. Further, that a nine-five arrangement in his favour, being what he seeks, is “close enough” to what X wants and so would be accepted by the children. The father relied on Dr L’s January 2019 report to support this. The father reasoned that, as Dr L reported that the children had said that they did not want to spend any time with him, then for X to say to Ms GG (in October 2019) that she would spend three nights out of 14 with the father and for Y to say that she wanted week about time with him, that demonstrated significant progress in his relationship with the children. The father added that, regard ought also be had to the fact that, at the time of the Ms GG report, the children had only been spending supervised time with their mother so, he reasoned, they would clearly wanted to spend much more time with their mother than the limited supervised time they were having. The father’s evidence was that, he believed, that after spending more time with him over, say, a year, the girls will have moved to wanting to spend even more time with him or at least to both want an equal shared care arrangement.[14]
[14] Transcript in Confidence, 2 December 2019, p. 49.
Contrary to what the Family Consultant Ms GG suggested, the father’s view remained that a nine-five arrangement in his favour is “close enough” to an eleven-three arrangement in the mother’s favour, and X would not resent being required to spend more time with him (as the Family Consultant suggested may occur). The father accepted that this was the Family Consultant’s opinion but disagreed saying that if X spends equal time with her parents or more time with him, then it will only make the children’s relationship with him better.[15]
[15] Transcript in Confidence, 2 December 2019, p. 53-4.
The father in his affidavit was critical of the mother for not seeking equal shared time or a nine-five arrangement in her favour as the Family Consultant had recommended. He deposes that this is evidence of the mother’s continued behaviour to act only in her interests and ignoring any other contradicting opinion.[16] However, in the father seeking a nine-five arrangement in his favour, it was put to him that he was also ignoring the children and the Family Consultant’s recommendations. The father disagreed but was unable to articulate any response other than he has considered the Family Reports and what the children want,[17] but that in Ms GG’s report he had been “misquoted and misunderstood” specifically in relation to Ms GG quoting the father as saying that he wanted “fifty-fifty shared care” but “in an effort to settle the dispute he will agree to a night or two less than an exact 50/50 care arrangement.”[18]
[16] Affidavit sworn or affirmed by the father on 15 November 2019, [34].
[17] Transcript in Confidence, 2 December 2019, p. 58, 23-40.
[18] Family Report by Ms GG dated 11 October 2019, [30].
The mother’s counsel submitted that the father as a witness gave an impression that matches the comments of the Family Report that he is a man of limited insight. Ms Agresta also pointed to the report of Dr L as reporting that the father has limited insight. Ms Agresta submitted that the father has demonstrated that he is self-focussed rather than focused on what is in the children’s best interests which was demonstrated by the fact that his evidence was “almost completely devoid of any reference to his children”.[19] It was submitted that “his evidence was about him, about his rights, about what he believes should happen to the children now, regardless of the opinion of the Family Consultant” and therefore, he demonstrated a lack of insight. Ms Agresta submitted that the Family Consultant has been accurate in considering that the mother has been the one to provide the day-to-day care of the children at a different quality than to the father’s and that this has caused problems in the children’s relationship with the father. It was submitted that the father was “fairly concrete” in his evidence in not making many concessions in terms of the mother and that the father is able to criticised in terms of his devotion to the children. The father has had a taxing and frustrating journey to re-establish a day to day relationship with the children. This has required determination and focus. Ms Agresta’s criticism of him is too harsh. I agree that the father’s caregiving of the girls is different to the mother’s caregiving. However, they are of ages where they can tolerate and grow from the difference.
[19] Transcript in Confidence, 5 December 2019, p. 330, 45-6.
Ms Agresta pointed to the father’s evidence about the amount of care the paternal grandmother provides, with Ms Agresta urging the Court to be cautious in accepting that the father “shares” the responsibility of care as much as he says. Ms Agresta further criticised the lack of evidence from the paternal grandmother who was not a witness in these parenting proceedings but is a party to the property proceedings. Mr Strong submitted that the decision to not call the paternal grandmother allows me to draw inferences about the level of care the paternal grandmother provides to the children but also noted that the paternal grandmother was available to the Family Consultant and the Family Consultant chose not to interview her.
Mr Strong submitted that the father has complied with orders but that he does lack some insight into his behaviour, in particular around the mother’s birthday incident. Mr Strong submitted that the father did make appropriate concessions in particular about the children’s feelings towards him and the mother and the different routines between households. My impression is that the father has far more insight than the mother.
Generally, I found the father to be a credible witness who was prepared to take responsibility for his actions and his conclusions.
Mother
The mother has a Country R background whilst the father has Country K background.
Ms GG wrote at [52]:
Mrs A Zammit’s command of the English language is good and she reports she does not need the assistance of an interpreter; however, there have been notable issues in her understanding throughout assessment processes in the context of these proceedings. Dr L noted that Mrs A Zammit had trouble in understanding meaning of some words while engaging in psychometric testing. During this assessment, Mrs A Zammit asked for explanation on the meaning of some words used by the writer in particular contexts. She indicated that Ms D had told her to look up the meaning of words in a dictionary. Mrs A Zammit seemed affronted by this, she regards herself as well enough educated with sound English skills. This notion appeared to leave Mrs A Zammit with a sense of humiliation or inadequacy, that contributed she says to her feeling misunderstood and misrepresented. It was noted throughout this assessment that when Mrs A Zammit became upset or emotional, her capacity to express herself clearly and with a level of sophistication in English seemed to lessen. She would use her hands more, the pitch of her voice became heightened and some of her sentences were shortened to sound more like broken type English. It is by no means the intention of the writer to be critical of Mrs A Zammit and her English skills, but more so to draw attention to the importance of meaning and use of words, the impact of English as a second language and potential for misinterpretation and misunderstanding. The writer attempted to clarify meaning and understanding throughout the interview process. Mrs A Zammit may benefit from the assistance of an interpreter in a nuanced setting such as the Court.
The mother did not request or have an interpreter for the trial. Her evidence was given at a comfortable pace. I am satisfied that I understood the mother.
Mr Arnold submitted that the mother’s lack of credibility is evident in her inability to comply and provide a certificate of completion of a parenting course that the mother was ordered to complete and which was called for by Mr Arnold on the second day of the trial and was never produced by the mother. The Independent Children’s Lawyer was directed to assist the mother by finding out the details of how a certificate could be obtained, such details were provided to the mother and yet the certificate was still not produced. The same lack of credit, Mr Arnold says, can be afforded to the mother’s inability to complete a sufficient anger management course after being notified by the Independent Children’s Lawyer that the online course she had completed was insufficient and that she was required to complete another course.
Mr Arnold pointed to the report of Dr L, where Dr L reported that the mother should take a pragmatic view and make attempts to repair the relationship and take a more conciliatory parenting approach, and submitted that since that report the mother has not changed her behaviour and is still saying that she can change. Mr Arnold further notes the mother’s lack of attempt to seek any psychological assistance.
Mr Arnold submitted that the mother’s behaviour during the attempted changeovers on 14 March and 21 March 2019 and then the changeover on 10 April, after the father sought a recovery order on 9 April before Senior Registrar Fitzgibbon and the changeover was settled by consent, are evidence of her disregard for the Court and inability or unwillingness to comply with Court orders. The mother’s incident and then “epiphany” on 16 June 2019 about changing her behaviour did not eventuate into an actual change of behaviour, with Mr Arnold submitting that the mother then did not return the children to school after this because the father would have had the opportunity to pick the children up from school. The children were then returned on 7 July 2019.
Mr Arnold’s criticism of the mother’s evidence and how she seeks to portray herself are fair.
Mr Strong submitted that whilst the mother, in her oral evidence, appeared to accept that she is at fault in a lot of the incidents, when asked further about her part in these incidents, she lacked insight and blamed her maternal nature or “mother heart”, opposed to accepting responsibility for her actions.
Generally, I found the mother to lack credibility. She was not distracted by a desire to be accurate or truthful. In her defence, she displays a high degree of self-centeredness which likely perpetuates its own truth. I do not find that the mother intentionally set out to deceive or mislead the Court, she just didn’t much mind if that was the result. Unlike the father, she was not prepared to take responsibility for her actions over and above saying that her “mother heart” was dominant. Her “mother heart” was an excuse for many things, non-compliance with orders featuring prominently. Interestingly, she did not seem to countenance a “father heart” equivalent. Where the mother had to make concessions, the concessions were not accompanied by any remorse or regret or apparent sense of responsibility for her actions. Her concessions were merely a means by which to bring questioning to an end.
Family Consultant, Ms GG
There was there was no challenge to Ms GG’s qualifications. Ms GG gave oral evidence twice during the final hearing including at the end. I found her evidence to be considered and thoughtful. I accept her evidence.
Relevant History
The mother was born in Country R and the father was born in Australia. The mother moved to reside in Country T in or about 2001/2002. The mother travelled to Australia in 2005 and met the father, before returning to Country T at the expiration of her visa. The mother returned to Australia in 2006 and the parents commenced cohabitation on 9 February 2006. They married on … 2006. X was born on … 2008 and Y was born on … 2011.
The parents separated for a brief period in 2009 and 2012, with the parents finally separating on 1 March 2016. The father vacated the matrimonial home, save for a short time from mid-June 2016 when he occupied the property neighbouring the former matrimonial home, he has resided with the paternal grandmother since.
Initially between March 2017 and October 2016, the father spent time and communicated with the girls as agreed.
On 17 June 2016, after the father had requested that the tenants vacate the property, the father moved into the parents’ investment property situated next door to the matrimonial home.
On 14 July 2016, an Intervention Order against the father was granted for the protection of the mother. The mother’s application states that the father was physically and verbally abusive towards her in front of the children including an incident where she says the father grabbed her in front of the children and then threw her out of the house and locked the children in a room. She stated that she did not know the father had moved into the house next door until she saw his car there and alleged that he was stalking her. She stated that the father had “locked the kids in a room on several occasions, hit them with his belt and has broken their iPads and other items”. The mother alleged that the father consumed alcohol excessively and drove with the children when affected by alcohol. The mother alleged that the father hid money and bank cards from her so that she could not buy food. She alleged that he tried to choke her and threatened to kill her and her parents. The father deposed that he consented to an order being entered against him without admission in “the hope that it would pacify the mother and assist her to feel reassured.”[20]
[20] Affidavit of Dr D sworn 13 April 2018, [10].
On 27 October 2016, the father filed his Initiating Application for interim and final financial and parenting orders in the Federal Circuit Court. He sought equal shared parental responsibility and week about time. The mother in her Response, sought sole parental responsibility and that the father spend time with the children during the day each Sunday and otherwise as agreed.
On 19 December 2016, Judge Jones of the Federal Circuit Court ordered that a s 11F Child Dispute Conference be conducted, that the children be placed on the watch list and that the parties file and serve material. It was ordered, by consent, that the children live with the wife and spend time and communicate with the father each Sunday until the next court event which would occur after the s 11F assessment was published on 7 April 2017. It is indicative of the stretched resources of the family courts that there was a delay of four months before a section 11F assessment could be undertaken.
On 9 March 2017, the father was convicted of persistent breach of the Intervention Order the mother had obtained in July 2016. No conviction was recorded and the father was ordered to pay $1000 to the Court fund. The matter was adjourned to 8 March 2018.
On 19 April 2017, Judge Harland of the Federal Circuit Court made orders, by consent, that the children live with the mother and spend time and communicate with the father from 10.00am until 12.00pm each Sunday under professional supervision at a contact service and appointed an Independent Children’s Lawyer. The matter was otherwise adjourned for mention on 4 July 2017.
On 7 April 2017, Family Consultant Ms MM interviewed the parents and the children as part of the Child Inclusive Conference and produced a Memorandum to the Court. X expressed that it is her “decision to stay with mum forever and spend no time with dad” and “keenly told the Family Consultant “I believe he is a bad person”.”[21] Both girls reported that the father smacked them, hit them with a belt and yelled at them. Y also reported the father breaking her iPad. Y reported that “mummy told me to say when the lady asks you why you don’t want to go on Sunday’s then tell her I’m scared because he hit me”.[22] When asked if she would like to see her father that day, she initially said no “then quickly stated “actually yes!”.” [23]
[21] Child Inclusive Conference Memorandum to Court by Family Consultant Ms MM dated 7 April 2017, 3.
[22] Ibid 4.
[23] Ibid.
The Family Consultant concluded that the Court should consider appointing an Independent Children’s Lawyer due to the complex nature of the matter. The mother raised concerns about the father’s alcohol consumption, family violence and discipline of the children. The father denied all allegations. The Family Consultant reported that: [24]
From interviews with the children it appeared that they are likely to have been influenced by the mother, and both children, in particular provided an account that prepared rehearsed and coached in their responses. Information provided from the mother, X and Y were at times extremely similar in content and offered without direct questioning, particularly by Y.
The Family Consultant recommended that it may be of benefit for the Sunday time to be professionally supervised and reportable to provide support to the mother and X, and to assist the Court in understanding the relationship between the children and the father. The Family Consultant further recommended a Family Report after a period of supervision and after receipt of subpoena information. At this stage, X would have been nearly 9 years old and Y was 5 years old.
[24] Ibid.
On 5 September 2017, Judge Harland made orders transferring the matter to the Family Court and for the family to attend reportable therapeutic counselling.
On 4 October 2017, the mother filed an Application in a Case to join the paternal grandmother to the proceedings. On 8 November 2017, the paternal grandmother was joined to the proceedings in relation to the financial proceedings. The Independent Children’s Lawyer was also granted liberty to appoint a family therapist.
On 19 December 2017, the family attended the first family therapy session with therapist Dr D. The second session was on 11 January 2018.
From 30 April 2017 to 7 October 2017, the father had supervised time with the girls. There were approximately 20 visits but on only six occasions did one or both of the children spend time with the father and three of the visits ended half way through the allotted time.
Dr D in her report dated 29 January 2018, recorded in relation to the mother making comments about the father to the supervisor Ms LL who also submitted a report:[25]
This dynamic, repeatedly occurred each visit throughout most of 2017. The children were subject to these dysfunctional power dynamics, reinforcing the role they had to play in order to achieve the expected outcome. At each visit they had to inform the supervisor, in the presence of their mother, that they did not want to see their father. There then followed highly emotional scenes, when the children had to very strongly, repeatedly and/or tearfully restate their views to the supervisor. In these circumstances the supervisor had little choice. They would all then be rewarded by leaving with their mother without spending time with their father. The report provided indication of the degree of the mother’s emotional response in the presence of the children.
As indicated, all parties were content to rely upon Dr D’s evidence for historical context and I do so.
[25] Affidavit of Dr D sworn 13 April 2018, [11].
On 20 March 2018, the father filed a Further Amended Initiating Application seeking that the children live with him.
On 16 April 2018, Dr D filed her report which is incorrectly dated “29 January 2017” when it should have been dated 29 January 2018. Dr D had met with the parties on two occasions and conducted interviews each with the father and mother and the children. After the first occasion, Dr D reported that [5]: “X was initially distant but warmed considerably after she was joined by her younger sister and the session ended on a pleasant note with discussion of further sessions.”
In relation to the first meeting with the father Dr D reported [13]:
He demonstrated some degree of understanding and, whilst he was aggrieved by the circumstances in which he found himself, he did not overly denigrate the mother except generally to report circumstances in a relatively matter of fact manner.
Dr D further reported [18]:
He demonstrated good insight and capacity to be empathetic and during the joint interview was gentle and in all respects appropriate in his responses to the children.
In relation to the first meeting with the mother Dr D reported [19]:
Ms A Zammit presents as assertive and confident. She has very strong opinions, which became more entrenched with further discussion and, in the process, raised her voice and becomes emotional and dramatic. She traverses one topic after another without necessarily having a rational sequence. Her aim was to clearly convey that the children do not want to see their father and that they are scared of him because of all of the things he did to them. She had a misguided perception of the purpose for the counselling. She believe the counselling was to assist the children “to get through the divorce” but with the clear agenda that the children would not be spending time with their father. She perceived her role to be to ensure that I understood the extent of the husband’s unsuitability as a father and to support her daughter in their unwillingness to see him. Her oft [sic] quoted phrase was “do you want me to drag my children to see their father?”
She wanted to repeat the grievances of the past and, while saying that her concerns were for the children because of the way he had treated them and hit them with a belt, she did not differentiate between her hurts and grievances of the children. She conflated the children’s needs with her needs and desires. She was surprised by the concept of differentiating the children’s and her needs and rejected it. The mother significant indication of the mother’s attitude was her repeated statement that she was only there to support the children in their wishes…
In the report dated 29 January 2018, Dr D noted in her report that the mother had attended the interviews with the children an hour early so that they were in the waiting room whilst the father was also waiting. Dr D reported that the mother and children “sought refuge or fled” to the bathrooms and remained there until the father went in for his interview. X stated that they had gone to the bathrooms because “I’m scared and do not want to be with him”, showing a clear understanding that “they did not want to be in the same room as their father.” The mother denied fleeing to the toilet and claimed that she and the children just needed to use the bathroom. Dr D concluded at [30] that the mother’s “mode of thinking, presentation and expressions were characterised by catastrophising situations and histrionic, irrational responses.”
In relation to the girls speaking to Dr D, Dr D reported that Y (6 years old) was “spontaneous and unguarded in her remarks” whilst X (9 years old) was “relunctant”, “uncomfortable”, “cautious” and “was guarded and even defensive”. Dr D reported that X repeated the allegations that her father used to hit her and that her father was mean “to us”, being inclusive of the mother and her sister. X told Dr D that she did not like the paternal grandmother but was unable to describe why that was so. Dr D reported [37]:
The irrationality of [X’s] position was further exemplified when we discussed that she used to spend time with her father and that she was happy to do so then. Again, the child could not explain what changed and what in particular caused her to later become anxious and frightened. When asked what her mother wanted in terms of the children spending time with their father, X repeated her mother’s words by saying “she wants only what we want”. When asked “what if her mother was really happy and wanted them to have a good relationship with their father, would that make a difference?” X became more confused and was tearful.
When it came to the children seeing their father, Dr D reported that:
5. …Despite the extreme statements made about the children’s unwillingness to met with the father, I was able to discuss the situation quite sensibly with X and she subsequently met with the her father and Y joined them at the end for a further period of time. X was initially distant but warmed considerably after she was joined by her younger sister and the session ended on a pleasant note with discussion of further session.
[…]
7. Within days of the session, an email was sent by Ms A Zammit complaining about [the children seeing their father] and that the children had been forced to see their father. She nevertheless attended with the children at the next scheduled session but it was not possible to have any further join sessions between the children and their father.
[…]]
41.…There was discussion about past, happy events, with the father now asking questions to which X responded in a positive manner. She began to smile and even initate[d] interactions. By the end of that additional short session, some ten to fifteen minutes the atmosphere between the father and the girls was significantly different. At the conclusion, Mr Zammit asked whether he could approach X to give her a kiss. That gesture in itself, which gave the child a clear message that she was respected and her views important, was most significant. It also demonstrated to X his ongoing love for her. It was a [sic] discussed during the session as a most positive event. X responded positively and both she and Y left the room smiling.
It is evident from Dr D’s report that her second meeting with the family on 11 January 2018 highlighted the impact the mother has on the children. Y spent the waiting period curled up on her mother’s lap and, when X was called in to be interviewed, Dr D reported [44]: “…She repeated her refusal while at the same time looking at her mother or looking on the floor and appeared to be highly resistant.” X then cried without tears, denied smiling and joking with her father on the last occasion and claimed she was “uncomfortable” speaking to Dr D and was scared of her father. When Dr D continued to ask X to explain her feelings, X became angry and rude and repeated about the father hitting her with his belt. Dr D reported [45]:
It was evidence that the child could not explain the reasons for her fear and not liking her father and was determined not to engage in the session. Her capacity for reasoning was significantly less consistent, she was less articulate and more disjointed than the previous session and not consistent with the expected abilities of children of her age. She was additionally frightened to say anything in case it was not what she was expected to relay. I was left in little doubt that this child’s fear was primarily about not wanting to disappoint her mother.
The mother then [47]: “dramatically entered the room, uninvited and made a fuss that the child was distressed, and at this prompt, X began to cry even more and became more distressed in appearance. X was asked to leave the room.” When the mother was interviewed she repeated her grievances about the father, denied that the children could have been quite congenial with their father and stated that the children had provided her with a contradictory account.
Dr D concluded that [59]: “the mother’s behaviour is detrimental to the children and of itself emotionally abusive.” She reported that the children “perform to their mother’s expectation of refusing to see their father” and that “the children do not have views of their own. They think and say that which is expected of them.” Dr D explained that girls must be loyal to their mother and conform to her views. Accordingly, the girls are unable to enjoy time with their father knowing that, if they hold the mother’s line, they will be returned to her.
In her report of dated 29 January 2018, Dr D concluded that the girls’ primary attachment is to the mother and that the girls balance the conflict of loyalties to each parent by rejecting their father out of fear of their mother. Dr D opined that, each time they see their father, this conflict is reignited and the “children become even more damaged when attempts are continue to be made.” Dr D concluded that there are few solutions. In her view, further experts and further counselling would not assist the children to resume a relationship with their father if they continued to live predominantly with the mother and, thereby, being so influenced by her views.
On 24 August 2018, I granted the mother’s Application in a Case filed 21 August 2018 seeking to bifurcate the parenting and financial proceedings.
The parents retained Dr L as a single expert witness and private Family Report writer. On 6 December 2018, the family attended upon Dr L for their Family Report interviews. The report was released on 17 January 2019.
In relation to the mother, Dr L reported that she is:[26]
…a woman who is highly voluble in her speech, but her account was full of exaggeration and melodrama. She had a warm social style but her thinking was superficial and interviewing her was difficult and required considerable direction to obtain information. Her account was full of hyperbole and exclamations about the strengths of her children’s feelings at “110 percent”.
[26] Report of Dr L dated 17 January 2019, 18.
In relation to the risk the mother says the father poses to the children, Dr L reported: [27]
When given an opportunity to provide a free narrative, Ms A Zammit’s account was marked by an absence of the allegations about Mr Zammit being violent towards her and the children. She made arguments that Mr Zammit had no relationship with the children during their relationship because he made no effort and had no interest in them, but did not suggest in any way that he had been physically rough with them or angry towards them. I therefore asked her directly if she thought the children were at risk with their father. Ms A Zammit replied “he would hit them and yell at them and scream at them” but found it difficult to provide any further details.
[27] Report of Dr L dated 17 January 2019, 21.
In relation to the father, Dr L reported that he “impressed as a concrete thinker and a tangential speech style” [28] with the “focus of his narrative was on his hopes and dreams for the children’s future.” [29] Mr Zammit denied all of the allegations made by the mother in relation to being violent towards her and the children, specifically denying ever hitting the children with a belt, or financial abuse. He argued that the children had been influenced by their mother and that the mother had exaggerated her allegations against him. He stated that the children were “better off” living with him and the mother is unable to facilitate a relationship between the children and him. In relation to the Intervention Order against him, the father described himself as naively breaching the Intervention Order resulting in him being charged.
[28] Ibid.
[29] Ibid 22.
Dr L reports that X was “strong and assertive” but “impressed as guarded.” [30] X reported to Dr L that she had not liked the interview with Dr D as Dr D made her see her father against her express wishes. She stated to Dr L that she did not want to live with her father and wanted things to stay the same with her living with her mother and sister. X reported that she does not like her father because he would hit her with a belt and make her sit in the corner if she did not give him a hug or say she loved him. X reported that she “loves everything” [31] about her mother. X also recalled the iPad incident stating that her father had bent her iPad over his knee.
[30] Ibid 24.
[31] Ibid 25.
Dr L reported that Y was “happy and ebullient”, [32] “but impressed as eager to please and compliant”. [33] Y also alleged that the father would hit her with a belt and that her mother was “all perfect and her father all bad.” [34] Dr L reported that: [35]
Y suggested that she does not like her father and he has no positive attributes because “he didn’t do much with me and he didn’t give me normal food only two minute noodles and I don’t like anything about my dad”. Y’s demeanour was bright and happy and she then said “oh wait”, before adding in a rehearsed style, “oh and he hit me with a belt”.
Dr L also reported: [36]
I said to Y that I thought her father would say that he is not going to hit her with a belt and she said “I think he is just saying that because he wants to see me and X”. She added “and he broke my sister’s iPad with his knee” smiling brightly. I asked Y if she could tell me about breaking the iPad and she said “I don’t know why but mum was there” and again Y beamed with satisfaction in recalling this complaint about her father in a way that was incongruent with the content and/or recall of a frightening event.”
[32] Ibid 26.
[33] Ibid.
[34] Ibid 27.
[35] Ibid.
[36] Ibid.
Dr L reported that the mother “was frankly difficult to believe”[37] and showed signs of narcissistic personality traits and being unable to self-reflect and accept her faults. The father was reported to have an unsophisticated personality style and lack the antagonistic personality that the mother alleges. Dr L explained that the children had irrationally rejected their father which is why they had so few memories to explain why they had done so. Dr L agreed with the findings of Dr D that, X believes that if she shows enthusiasm towards her father, she will have to live with him. X is reported to be torn between the two parents and to be under the misapprehension that she could only choose one parent in which case, she said that she chooses her mother. Dr L reported that, in her view, X fears that showing any positivity towards her father would adversely impact her relationship with her mother. Dr L observed that Y expected approval for being critical of the father and remembering a list of complaints about him.
[37] Ibid 33.
The children plainly state that their preference is to live with their mother and spend no time with their father, however Dr L states “their behaviour however with him suggests strongly that this is not their genuine preference” and recommends that the Court be wary of their voiced opinions and place greater weight on their behaviour as indicative of their views. Dr L qualifies that her opinion may change if the mother’s allegations about the father are confirmed, however, she reports there is little evidence that the allegations are true.
In her report of 17 January 2019, Dr L concludes that: [38]
…the children have an over-enmeshed relationship with their mother that has some unhealthy features, where Ms A Zammit does not encourage independence from her and the children are overly concerned about their mother’s needs, attitudes and beliefs.
I concur with Ms D and consider that if there is not some swift and decisive action in this family that changes the course of the children’s behaviour, their relationship with their father will wither, the potential for ongoing litigation will increase, and the children subjected to chronic failures of attempts at therapeutic interventions (because Ms A Zammit’s influence is likely to be a constantly eroding factor).
It is my opinion that a structural approach is likely to have the best outcomes for these children and I would support the children moving to live with their father. I do not consider that Mr Zammit has an exemplary record of behaviour and his impulses and decision-making seem unsophisticated and reactive; however, he presents as much better able to support the children’s relationship with their mother than Ms A Zammit can support their relationship with their father.
My observations of the children’s behaviour with their father suggested that their relationship has remained strong despite not seeing him very frequently over the last two years, and although moving from their mother’s care will be experienced as requiring a significant adjustment, the long-term risks of remaining with her appear to outweigh the short-term difficulties.
…
While Ms A Zammit suggests that X at least has threatened to run away if made to live with her father, her behaviour with her father suggests that any absconding behaviour is not likely to be at her own initiative but rather planned and executed through her mother.
[38] Ibid 36.
After Ms GG had seen the children on 5 December 2019, Ms GG maintained that the current arrangement in favour of the father has given the mother “pause for reflection” to consider her behaviours and how she can better facilitate the relationship between the children and their father. Ms GG agreed that the girls have moved away from providing a view that aligns with their mother’s, to a view that is now based on lived experience after now having spent a period of time living predominantly with their father. However, Ms GG agreed that the children are also not able to identify and therefore protect themselves from the mother’s shortcomings whereby historically she has been totally resistant to the children having a relationship with their father. This is a major difficulty in this case.
In terms of the actual day to day care of the children, due to the father leaving early for work, the paternal grandmother prepares the children for school, walks them to school most mornings and assists to provide general care to the children and maintain the household. The father collects the children from school. The mother alleges that the father plays a very limited role in the household and that it is the paternal grandmother who does the majority of the care. The father disputes this and says that it is shared or “50/50”. He acknowledged to Ms GG that it has been “challenging” for him when he had the children in his full time care, that he does not want the children in his full care and that he is dependent upon support from his mother in that situation.[61] He did not call his mother to give evidence nor was she put to an affidavit, as indicated, I conclude that the paternal grandmother’s evidence would not have assisted the father’s case.
[61] Family Report by Ms GG dated 11 October 2019, [101].
Ms GG agreed that the father is so “rule bound” because he had not been able to see the children for a significant period of time and so the rules is all he had to cling to, to ensure his time took place. Also, that the mother is more flexible and generous with the rules because she then had her time so severely restricted so being flexible gives her an opportunity to get what she might not otherwise have available to her. This was acknowledged to be something that is not accurate in terms of the personalities of the parents but more a consequence of the history of this family and these proceedings. Ms GG also identified that the mother is not necessarily simply permissive to the children’s views but may use “the girls’ views” as a way to implement her own views. In terms of being permissive to their views, Ms GG highlighted that the mother at times seems to find it difficult to sit with any distress the children might have, if their views do not align and it is not what the girls want. The mother has a need to “fix” this and settle the distress, which creates a complex relationship of authority.
I am satisfied that the best interests of the children requires that the parents respect boundaries. It is common place in parenting orders to permit some flexibility by incorporating reference to the parents being able “to otherwise agree”. In this case, such a clause would do more harm than good. The order should be clear and then adhered to. I will not be inviting the parents “to otherwise agree” because I am satisfied that an agreement between parents is only a remote possibility but the opportunity for change is likely to create further conflict for the children
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child[62]
[62] Family Law Act 1975 (Cth) s 60CC(3)(c).
The girls currently attend FF Primary School. Whilst the father does collect the children from school, it is the paternal grandmother who prepares the children for school, walks them to school most mornings and assists to provide general care to the children and maintain the household. School has historically been a place of conflict for the children, with incidents such as the mother’s friend facilitating a phone call between the children and their mother during the period of no contact in 2019, the mother withholding the children from school for two weeks in June/July 2019 and most recently the mother attending the school on days the children are not in her care to order lunch orders for the children. With the strict designation of roles, being the mother as the homemaker and carer of the children and the father being the bread winner, the mother expressed to Ms GG that the father previously never went to the school and that that was her realm.[63] This was evidenced particularly by Y’s comments to Ms GG that her friends did not know her father as he had never previously collected or taken her to school before April 2019.[64] Now that the father collects the children from school and the children’s friends are aware of him, but Ms GG recommends that he become more involved in the children’s lives and interact with them more.
[63] Family Report by Ms GG dated 11 October 2019, [54].
[64] Ibid [77].
In terms of the parent’s proposals, Ms GG saw it as important that the father have an opportunity to be involved in the girls schooling and take them to school on some occasions. Therefore, the mother’s original proposal of three nights a fortnight over the weekend with no involvement in school would not be productive for the father to establish his involvement in school. I agree.
Ms GG placed great emphasis on the sanctity of the school environment away from their parents and that efforts to preserve the school environment “where they are free to be children unencumbered by the conflict within their family should be given primacy.”[65]
[65] Ibid [93].
In relation to X’s sports, even after the father had the children in his full time care, he did not consider this as an opportunity for him to become engaged in X’s Saturday sports competition which led to X opting out of playing.
The extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the child[66]
[66] Ibid s 60CC(ca).
Each parent has provided adequately for the children.
The likely effect of any changes in the children’s circumstances[67]
[67] Ibid s 60CC(3)(d).
The orders do not effect a change in the children’s circumstances in relation to separation from their parents, other children, wider family including grandparents and other persons with whom the children have a relationship.
Practical difficulty and expense associated with face to face time and/or communication with the other parent[68]
[68] Ibid s 60CC(3)(e).
I consider the practical difficulty and expense of the children spending time with and communicating with the parent with whom the children will not be living and whether this will affect the children’s rights to maintain personal relations and direct contact with both parents on a regular basis.
In relation to the mother’s oral application for electronic contact at all reasonable times with the parent whose care the children are not in, Ms GG was cautious about not having boundaries around such communication. Ms GG, having considered Y’s distress about not being able to speak to her mother on her birthday, suggested that electronic communication be available to the children but that there be some clear rules around it to ensure that it is not abused by the children and not interfered with by the parents. Ms GG was clear that she did not want the children to feel accountable to the other parent whilst in the other parent’s home and undermine their household. I agree.
Ms GG recommended that every third or fourth day would be more than adequate as any more frequent would be too disruptive, and agreed that contact should only occur in the home and not occur whilst the children are at school. Ms GG related the mother’s oral application to this “enmeshed relationship” between the mother and children and noted that the children would likely want to speak to the mother ever day if left unchecked. Counsel for the mother framed the application in terms of X wanting a “normal life” which she described included the children being able to contact their parents freely. Ms GG acknowledged that this was not unreasonable but could be unrealistic in this family. If clear rules were set around the communication, Ms GG considered that the children would be compliant with those.
I am satisfied that electronic communication between the children and the other parent is problematic from the perspective of destabilising the children within the household in which they are present. My impression is that it would also be likely to work only one way , that is with the children wanting to ring their mother for various reasons including that she is the parent who is more emotionally demanding of the children. An adequate balance of the children’s need to contact them mother and permitting them to settle in the father’s household will be met by allowing the children to contact a parent with whom they have not had face-to-face time for four days.
The children’s maturity, sex, background and other characteristics[69]
[69] Ibid s 60CC(3)(g).
There was no controversy around the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and the parents.
Any family violence involving the children or any member of the children’s family and family violence orders[70]
[70] Ibid ss 60CC(3)(j) and (k).
In spite of voluminous affidavit material about family violence, the evidence of each party was not challenged in cross examination at the trial. I am confident that the mother was equipped to run a case focusing on family violence if she chose to do so. She was ably represented by Ms Agresta. I make no findings in relation to family violence.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[71]
[71] Ibid s 60CC(3)(l).
Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. However, litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively. Parents and children are readily distracted by litigation. Ideally courts should make parenting orders that minimise the prospects of future litigation.
It was consistently recommended by Ms GG that there be some oversight of the orders in that the parties will return to court in the event of alleged non-compliance, which will keep things in check but also provide the children with some comfort that the orders will not change and will be enforced by the Court. Ms GG was clear that the orders ought not be altered based on non-compliance as this would cause significant disruption to what the children accept as a final arrangement.
Section 65L of the Act provides that, when making a parenting order, the court may make an order requiring that the parties’ compliance with the parenting order, as far as practicable, to be supervised by a Family Consultant and/or that a Family Consultant give any party to the parenting order such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting order. That may have been the oversight which Ms GG thought would be beneficial in this case. Unfortunately, for many years now, Child Dispute Services has had insufficient resources to service orders under s 65L and my understanding is that any order made under s 65L will not be met. In my observation, dis-use of s 65L coincided with the shift of privileged counselling from the Court and into community based centres and our expert Family Consultants assuming an exclusively reportable forensic role. However, lack of resources was not the only difficulty with s 65L. There was a lack of direction in orders of the Court and the predecessor of Child Dispute Services was rarely consulted prior to an order being made about the kind of support which was envisaged and available and whether written reports were to be generated. In my experience, with the right co-ordination, s 65L worked very well. Frequently, though, a family member did not know how to activate the supervision or it was sought to be activated when the family was in such difficulty that greater intervention was required. It remains the case, however, that post-order support should be offered to families and the courts are the logical place for that support to commence. Making orders alone is often not enough, and rarely enough for the families in the most complex cases with which we deal. There is a disconnect between the amount of resources that are put into setting up parenting arrangements (assessments, Family Reports, defended hearings, judgments etc) and what is done to assist the family, and significantly the children, on the implementation of the arrangements.
Parental responsibility
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[72] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
…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 children to spend time with a parent.
[72] Ibid s 61B.
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[73] The concept of shared parental responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[74] and to ‘make a genuine effort to come to a joint decision about that issue’.[75] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.
[73] Ibid s 65DAC(2).
[74] Ibid s 65DAC(3)(a).
[75] Ibid s 65DAC(3)(b).
In this case, the parents agree that there should be share parental responsibility and taking all of the above considerations into account, I am satisfied that that is appropriate.
Consideration of equal time or substantial and significant time with both parents
Sub-section 65DAA(1) of the Act provides that, in making a parenting order for a child’s parents to have equal shared parental responsibility for the child, I must consider the following:
a)whether the child spending equal time with each of the parents would be in the best interests of the child;[76] and
b)whether the child spending equal time with each of the parents is reasonably practicable;[77] and
c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.[78]
[76] Ibid s 65DAA(1)(a).
[77] Ibid s 65DAA(1)(b).
[78] Ibid s 65DAA(1)(c).
In making such an order, I must regard the best interests of the child as the paramount consideration.[79] Further, in determining what is ‘reasonably practicable’, I am to take into account the factors listed in s 65DAA(5) of the Act, which include the following:-
a)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;[80] and
b)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind[81] (including the behaviour of a parent, such as their willingness and ability to facilitate and encourage a close, meaningful relationship between the child and the other parent and their attitude to the child and to the responsibilities of parenthood);[82] and
c)the impact that an arrangement of that kind would have on the child;[83] and
d)such other matters as the court considers relevant.[84]
[79] Ibid ss 65DAA(1) Note 1 and 60CA.
[80] Ibid s 65DAA(5)(b).
[81] Ibid s 65DAA(5)(c).
[82] Ibid s 65DAA(5) Note 1.
[83] Ibid s 65DAA(5)(d).
[84] Ibid s 65DAA(5)(e).
Ms GG clearly stated that shared care is not appropriate in this family unit because of ongoing conflict, poor communication and parental style differences. I accept that evidence.
Sub-section 65DAA(2) of the Act provides that where parents have equal shared parental responsibility but not equal time with the child, I must consider whether it would be in the child’s best interests for the child to spend substantial and significant time with each parent.[85] I must also consider whether this is reasonably practicable,[86] with reference to the factors outlined in s 65DAA(5),[87] and if so, consider making an order giving effect to this.[88] In making this determination, the child’s best interests are the paramount consideration.[89]
[85] Ibid s 65DAA(2)(c).
[86] Ibid s 65DAA(2)(d).
[87] Ibid s 65DAA(2) Note 2.
[88] Ibid s 65DAA(2)(e).
[89] Ibid ss 65DAA(2) Note 1 and 60CA.
Sub-section 65DAA(3) of the Act states that the child will be taken to spend substantial and significant time with a parent only if that time includes weekdays, weekends, holidays and non-holidays[90] and involvement of the parent in aspects of the child’s daily routine[91] and occasions of significance to both parent and child.[92] The legislation notes, however, that these factors are not intended to limit the matters to which the Court may consider in determining whether the time spent with a child is substantial and significant.[93]
[90] Ibid s 65DAA(3)(a).
[91] Ibid s 65DAA(3)(b)(i).
[92] Ibid ss 65DAA(3)(b)(ii) and 65DAA(3)(c).
[93] Ibid s 65DAA(4).
In this case, each parent concedes that the other parent should have five out of fourteen nights with the girls which equates to substantial and significant time.
Conclusion
Whilst the children had a disrupted time prior to the final hearing, since the evidence was concluded in December 2019, they have moved freely between the households of their father and their mother. This is something that I was not confident could occur, at least when the case first came to me. The sudden reversal of the children’s care arrangements away from the mother has apparently paid dividends in the short term. I remain uncertain as to the long-term impact on the girls in terms of their emotional health and what modelling of adult behaviour the whole process has provided them. However, the girls now seem to have an established relationship with the father which they would not have but for the radical intervention.
I have had regard to all of the evidence and the expert opinion of the Family Consultant, which I accept. Ms GG has been impressive throughout this case and a valuable resource for the girls. I conclude that it is in the best interests of the children to return to live primarily with their mother providing that they will continue to live with the father for not fewer than five nights out of each fourteen nights and I will order accordingly.
I am satisfied that the order set out at the commencement of these reasons is in the best interests of X and Y.
I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 19 August 2020.
Associate:
Date:
Key Legal Topics
Areas of Law
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Family Law
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Consent
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Natural Justice
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Procedural Fairness
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Standing
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Statutory Construction
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