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Austin & Benning [2021] FCCA 1339 (17 June 2021)

Last Updated: 23 July 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

Austin & Benning [2021] FCCA 1339

ORDERS

THE COURT ORDERS THAT:

1. The mother and father have equal shared parental responsibility of the children X born in 2010 and Y born in 2017 (“the children”).
2. The children live with the mother.
3. From 17 June 2021, up until the commencement of the 2021/2022 long summer holidays, the children spend time and communicate with the father as follows:

(a) Week One

(i) From 3:30pm or after school/kindergarten on Friday, until 9:00am or before school/kindergarten the following Tuesday;

(b) Week Two

(i) From 3:30pm or after school on Wednesday, until 9:00am or before school the following Thursday.

(c) On each of the children’s birthdays, if not otherwise in the care of the father, for three hours if a school day and in default of agreement from 3.30pm until 6.30pm and for 5 hours if a non-school day and in default of agreement from 10am to 3pm;
(d) From 5pm on the Saturday before Fathers’ Day until 5pm on Fathers’ Day;
(e) such further and other times as agreed between the parties in writing.

4. Subject to order 5 below, during the long summer holidays the children live with the mother and father in alternating weeks as follows:

(a) Week one

(i) From 9:00am on the morning following the last day of the school term, the children live with the father until one week later;

(b) Week two

(i) From 9:00am one week later the children live with the mother until 9:00am one week later.

5. For the purposes of these Orders, the school term and long summer holidays are deemed to commence at 9:00am on the day after the last day of school, and concluding at 9:00am on the first day of school.
6. Over the Christmas period:

(a) The children spend time with the father from 4:00pm on Christmas Eve until 2:00pm on Christmas Day in 2021 and in each alternate year thereafter and the children’s time with the mother be suspended during that period; and
(b) The children spend time with the mother from 4:00pm on Christmas Eve until 2:00pm on Christmas Day in 2022 and each alternate year thereafter and the children’s time with the father be suspended during that period.

7. From the start of the school term in January 2022, the children spend time and communicate with the father as follows:

(a) Week One

(i) From 3:30pm or after school on Friday until 9:00am or before school the following Tuesday.

(b) Week Two

(i) From 3:30pm or after school Wednesday until 9:00am or before school the following Friday Thursday.

(c) On each of the children’s birthdays if not otherwise in the care of the father for three hours if a school day and in default of agreement from 3.30pm until 6.30pm and for 5 hours if a non-school day and in default of agreement from 10am to 3pm
(d) from 5pm on the Saturday before Fathers’ Day until 5pm on Fathers’ Day
(e) such further and other times as agreed between the parties in writing.

8. The children’s time with the father be suspended as follows:

(a) On each of the children’s birthdays if not otherwise in the care of the mother for three hours if a school day and in default of agreement from 3.30pm until 6.30pm and for 5 hours if a non-school day and in default of agreement from 10am to 3pm
(b) from 5pm on the Saturday before Mothers’ Day until 5pm on Mothers’ Day
(c) such further and other times as agreed between the parties in writing

9. From 2022 onwards, during the short, inter-term school holidays:

(a) In odd-numbered years

(i) The children spend time with the father for the first half of each of these school holiday periods; and
(ii) The children spend time with the mother for the second half of each of these school holiday periods.

(b) In even-numbered years

(i) The children spend time with the mother for the first half of each of these school holiday periods; and
(ii) The children spend time with the father for the second half of each of these school holiday periods.

10. For the purposes of Order 9, the inter-school term holidays are deemed to commence at 9:00am on the morning following the last day of the school term and changeovers shall occur at 4:00pm on the day in the middle of the school holiday period.
11. Over the Easter period in each and every year:

(a) The children spend time with the mother from 9:00am until 1:00pm on Easter Sunday and with the Father from 1:00pm to 5:00pm on that day in 2021 and each alternate year thereafter; and

12. The children spend time with the father from 9:00am until 1:00pm on Easter Sunday and with the mother from 1:00pm to 5:00pm on that day in 2022 and each alternate year thereafter.
13. Changeover occur wherever possible at the children’s school and otherwise in default of the agreement the father or his nominee shall collect the children from the front door of the mother’s residence at the commence of the children’s time with him and the mother or her nominee shall collect the children from the front door of the father’s residence at the conclusion of the children’s time with him.
14. The mother and father do all acts and things necessary, and provide all necessary authorities to the other party, to engage with any agreed medical practitioner or allied health professional treating the children from time to time and each of them shall advise the other by email of any medical or other allied health professional appointments upon the appointments being made.
15. The mother and father follow all reasonable recommendations and directions of any agreed medical practitioner or allied health professional treating the children from time to time including engaging with other support services.
16. Each party be and is authorised to attend any events and activities ordinarily attended by parents at the children’s school and to receive any information from the school ordinarily received by parents.
17. Neither party will enrol the children in extra-curricular activities which would impose upon the time the children spend with the other parent, without the consent of the other parent, and such consent shall not be unreasonably withheld.
18. The parties ensure that at all times they provide to the other party their current contact telephone number and address.
19. Each party inform the other party of any serious illness, hospitalisation or injury sustained by the children whilst in his or her care as soon as practicable and provide particulars of any treatment required or received by the children together with the contact details for the treating doctor/s.
20. Save for emergencies the mother and father will use email, text or a parenting communication application to relay appropriate information about the children’s routine, medication, and any other queries or concerns relating to the day to day care of the children or any matters relevant to the children’s arrangements.
21. The parties be at liberty to provide a copy of the Family Reports by Dr B filed 4 November 2019 and 1 December 2020 to any counsellor that they attend.
22. The parties do all such acts and sign all necessary documents forthwith to enrol X born in 2010 at C School for the year commencing 2022 with the cost of such attendance being shared equally between the parties including but not limited to:-

(a) Fees as invoiced by the school;
(b) Uniforms including shoes;
(c) Levies;
(d) Compulsory extra-curricular activities;
(e) Agreed extra-curricular activities; and
(f) Books.

AND THE COURT NOTES THAT

1. These Orders have been amended pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE HARLAND:

BACKGROUND

1. The matter concerns X who is 11 years old, and Y, who is almost 4. Their parents have not been able to agree on the best parenting arrangements for them. It is apparent from reading their affidavits that the level of conflict and distrust between the parties has been high. The question is to what extent the parties have been able to overcome this conflict so that they are able to co-parent their two boys.
2. The parties began their relationship in 2002 and commenced living together in 2006. When the parties separated in September 2018, they remained living under the same roof until September 2019. The mother commenced proceedings in the Federal Circuit Court of Australia in July 2019.
3. Two family reports have been prepared in this matter. The first family report was released on 4 November 2019, when the parties were living under the same roof and reflects the toxic environment the parties and children were living in at the time. The second report was prepared almost a year later, during the period Melbourne was in lockdown due to the COVID-19 pandemic, and was released on 1 December 2020.
4. The father’s position has changed most dramatically in the proceedings. Initially, the father sought that the children live primarily with him and spend supervised time with their mother. He raised various concerns about the mother’s mental health. He says his concerns were alleviated by the family report writer’s findings in her first family report. The mother also changed her position during the course of the proceedings. At the time of the second family report interviews she sought sole parental responsibility due to her difficulties in communicating with the father; however, at trial, she agreed that the parties should exercise equal shared parental responsibility for the children and said she was somewhat unclear as to its meaning at the time of the family report.
5. As both parents seek that they exercise equal shared parental responsibility, the Court must consider whether equal time or a substantial and significant time is in the children’s best interests. The father’s proposal seeks equal time with him having three out of four weekends, which is the current arrangement, and further seeks that that arrangement continue during the term holidays, rather than splitting the school holidays evenly.
6. In his case outline the father sought that the Christmas holidays be divided equally in two blocks. However, when he was cross-examined on this it was clear that he thought his proposal was for this time to start once Y commences school.
7. During the course of the hearing, the parties resolved the outstanding schooling issue and signed consent orders which provide for X to attend C School for the school year commencing 2022 and that the cost would be shared equally between the parties. This includes but is not limited to:

(a) Fees as invoiced by the school;
(b) Uniforms including shoes;
(c) Levies;
(d) Compulsory extra-curricular activities;
(e) Agreed extra-curricular activities; and
(f) Books.

8. Interim parenting orders were made by consent in November 2019, shortly after the mother and children moved out of the former matrimonial home, which provide for the following spend time arrangements for the father:

(a) On the first, second and third weekend of a 4-week cycle from 3:30pm or after school on Friday until 5pm on Sunday commencing on 8 November 2019;
(b) Each Wednesday from 3:30pm or after school until 9am or before school on Thursday commencing on 20 November 2019;
(c) From 4pm on 24 December 2019 until 4pm on 25 December 2019;
(d) On each of the children’s birthdays if not otherwise in the care of the father for three hours if a school day and in default agreement from 3:30pm until 6:30pm and for 5 hours if a non-school day and in default of agreement from 10am to 3pm;
(e) From 5pm on the Saturday before Fathers’ Day until 5pm on Fathers’ Day;
(f) Such further and other times as agreed between the parties in writing.

(2) The children’s time with the father be suspended as follows:

(a) From 4pm on 25 December 2019 until 4pm on 26 December 2019;
(b) On each of the children’s birthdays if not otherwise in the care of the mother for 3 hours if a school day and in default of agreement from 3:30pm until 6:30pm and for 5 hours if a non-school day and in default of agreement from 10am to 3pm;
(c) From 5pm on the Saturday before Mothers’ Day until 5pm on Mothers’ Day;
(d) Such further and other times as agreed between the parties in writing.

9. The trial was originally listed on 25 February 2021, where final property orders were made by consent. The parties were unable to come to an agreement in regards to the parenting aspects of the matter, and the final hearing was adjourned to 3 and 4 May 2021.
10. Both parties seek a range of ancillary orders which were not addressed during the trial, including injunctions and orders about overseas travel and who should hold the children’s passports. As these matters were not addressed I will not make those orders.

THE MOTHER’S CASE

11. Perhaps unsurprisingly, the mother is keen to emphasise the findings and recommendations in the first family report, whereas the father is keen to emphasise the second family report.
12. In her trial affidavit, the mother refers to the father criticising her during the relationship. The father was not physically abusive but the mother says he was forceful and intimidating. The mother says she was the primary carer for the children both when she was at home full time and when she was working.
13. The mother says that Y is too young to cope with an equal time arrangement. She believes that X also needs a home base. She also says she is more available to care for the children given the father’s full-time employment. The mother points to the conflict between the parties and the lack of effective communication between them as another reason why an equal time arrangement is not in the children’s best interests.

THE FATHER’S CASE

14. The father refers to the mother suffering from mental health issues for many years and says this impacted their relationship. He says the mother struggled to cope after the birth of both children.
15. Although, the father states at the beginning of his trial affidavit that he seeks for the children to live in an equal time arrangement in accordance with the recommendations in the updated family report, he also includes much criticism of the mother, and refers to the mother struggling to care for the children.
16. The father’s Counsel explained the father’s trial affidavit as having been consolidated from previous affidavits and that after receiving the first family report, the father no longer had concerns about the mother being a risk to the children.
17. This creates difficulties, as it somewhat undermines the father’s position and raises questions as to whether or not he still holds those views of her. His trial affidavit refers to the mother having multiple sexual relationships during the marriage which is not relevant to the issues the Court must determine. This is particularly so given that the cross-examination of the mother also included questions focusing on the mother having affairs. Counsel cross-examine on instructions from their clients. As with some of the content of the father’s trial affidavit, the cross-examination was inconsistent with the position of the father no longer having a negative view of the mother and being able to co-parent with her. I am not convinced that the father’s views of the mother has changed as significantly as he suggests. It causes me some concern as to how an equal time arrangement would work for the benefit of the children.

LIVING SEPARATED UNDER THE SAME ROOF

18. The parties separated in September 2018 but remained living under the same roof with the children for the next year. Both parties describe this as a tense and difficult time. The mother complains the father engaged in conduct that excluded her from being involved with the children, including ordering takeout forms of the children without consultation and treating her in a contemptuous, discourteous and disrespectful manner in front of the children.
19. The mother refers to the father pressuring her to move out of the former matrimonial home. At the same time, he prevented her from accessing the credit card she used to purchase various household items, which left her with only casual income she earnt from doing her small home business. She said this is more of a hobby. She earned about $7,000 in the last year from that work. The mother also complained that at the same time as pressuring her to move out of the home, the father refused to sign a Centrelink form that she first asked him to sign in March 2019, which would have allowed her to receive some income. The father disagreed with the information she put on the form when having to express the amount of time the children spent with each parent as percentages. She claims he said that what she wrote was wrong and that the children were one hundred percent with him. She claims that the father kept telling her to move out, to which she told him that she needed the funds to do so and made multiple requests for him to sign the form, yet he continuously refused to sign. He eventually signed the Centrelink form at the conciliation conference in November 2019.
20. The mother says after she commenced proceedings in July 2019 the father unilaterally arranged activities for the children without consulting with her, despite her protests that this meant she could not make her own plans with the children. She says that the father would tell her “you don’t get to say” and “I don’t have to tell you anything”. She says from the first Court event in September 2019 until she moved out the father would take the children out for long periods of time on the weekend, ignoring her requests to spend time with the children and taking them out when she was in the bathroom.
21. She says he would also take the children to her mother’s place and leave the children with the mother without consulting with her.
22. The mother says she has always found the father difficult to stand up to and that she has often done what he said as she lacked the confidence to challenge him.

The Mother’s Surgery

23. Another area of stress and conflict was with respect to surgery the mother had in December 2018 to correct internal damage she suffered during Y’s birth. Both births were difficult but the second more so; the mother says she experienced severe discomfort for about the next 18 months and that it affected her walking. The surgery was considered to be elective and cost $18,000. The parties did not have private health insurance. She borrowed $10,000 from her mother and asked permission from the father to take the balance from joint funds, which the father would only agree to if it was part of her property settlement. The mother said she felt she had no choice.
24. In his affidavit, the father refers to the mother sending him an aggressive text demanding money for elective surgery. He does not annex a copy of this text message to his affidavit. He makes no reference to the surgery being to correct problems she suffered after Y’s birth.
25. The parties’ different personalities and communication styles is evident when they were cross-examined about the money the mother needed for the operation after Y’s birth. The father disagreed that that was an instance of conflict between them because they were separated at the time. He also said that the doctor called it elective surgery. He acknowledged reading the mother’s affidavit and the difficulties she described she was having including pain and discomfort. He said it was her suggestion that it be part of her property settlement. He denied the proposition that it was the only way she could get the corrective surgery, saying that she said the GP told her that it was not necessary surgery and it was at her request. The father also denied seeing her in pain and discomfort after the birth. The father refers to the mother having difficulty coping with the children after they were born. In his trial affidavit, the father talks about the mother’s mental health, and that the mother struggled to cope with demands following the birth of Y. He said that she withdrew from her friends and family, and suffered from constant fatigue and paranoia that Y would be harmed. He does not mention the mother’s physical health following Y’s birth. In his affidavit, he also refers to the surgery as cosmetic surgery.
26. Surgery being described as elective does not mean that it is trivial. It simply means it is not life threatening. Some of the difficulties the mother had after Y’s birth could have been due to the physical discomfort she was in. The father is somewhat dismissive and insensitive and his response to this causes me some disquiet about just how much his attitude towards the mother has really has changed. The mother would infer from the father’s attitude and evidence that she opted for an expensive operation of some sort for vanity reasons, rather than to address pain and discomfort. No doubt she could have continued to put up with it and not spend that money. However, it is not an unreasonable thing to want to do when there is money available.

X’S SCHOOL ATTENDANCE

27. In his trial affidavit, the father raises concerns about X’s school attendance in 2017 and 2018. He annexes absences and late arrivals for X during that period to his affidavit. He says he received an email from the school principal about X’s late arrivals and absences from school on 2 November 2018. However, significantly, he does not annex this email to his affidavit.
28. When questioned about X’s school absences and late arrivals in 2017 and 2018, the mother said that it was something she had to work on. Looking back she thought it was a combination of being pregnant and other things taking her attention. She said she should have been more robust with ensuring that he attended school. She also said that after Y’s birth, she suffered long-term health issues. The father’s Counsel went on to say that they did not have the statistics for 2019, 2020 and 2021 school attendances. The father could have obtained these if this was a genuine current concern of his. The mother said that she spoke to the principal who told her the school did not have concerns about those years. She then said that any parent can request those figures and that the school did not initiate the letter. The annexure to the father’s affidavit is simply a print out of the school attendance record, and does not include any correspondence from the school.
29. Significantly, most of this period where X’s school attendance was below standard, predates the parties’ separation. This does not sit easily with the father’s case that he was an actively involved father, as the impression he gives by raising this criticism is that it was the mother’s sole responsibility to organise X’s attending school each day.
30. Furthermore, whilst the father seeks equal time, his own proposal involves an arrangement that would see the mother having most of the responsibility for getting the children to school. It is also significant that the father does not seek a week-about arrangement during the school holidays but seeks that the same arrangements in place during school terms continue during the holidays. There is a disconnect between his complaints about X’s school attendance, his criticism of the mother, and his proposals for equal time where he seeks to continue to have the majority of weekends and less time during the school weeks. It is inconsistent with the father being genuinely concerned about X’s school attendance, given his proposals do not maximise his involvement with taking the children to school.
31. The father was cross-examined about his work arrangements. He is contracted to work from 7am to 4pm nine days a fortnight. Currently he works from home. He says the CEO has announced that employees will be able to continue to work flexibly. He further claimed that his boss approved of him taking a break from work in order to take the children to school. After being cross-examined about this, the father obtained a letter from his employer which is Exhibit 1. That letter simply states that he has permission to commence work at 7am from home on Thursdays, take his children to school and then resume work at an agreed site. I am not satisfied that the father will have greater flexibility than what is set out in the letter as it would have been a simple thing for the letter to make that plain.
32. Each year, the father has 4 weeks of annual leave and up to two weeks of personal leave. I formed the impression that the father has not given a great deal of thought to the school holiday arrangements. His proposal is for the term arrangements to continue during the term holidays. He conceded that he would be working and would be relying on family members to care for the children whilst he is working.

DISPUTE OVER CENTRELINK FORM AND CHILDREN’S BIRTH CERTIFICATES

33. At the conciliation conference, the father signed the Centrelink form the mother needed in order to start receiving benefits. The mother says that after the conciliation conference concluded, she took the signed form to a Centrelink office and was told that she needed to bring in the children’s original birth certificates. She says she instructed her lawyers to write to the father’s lawyers to request them be made available to her and says where they were stored in the home, which was common knowledge to both of them. The mother unreasonably assumed that the father had seen the letter when she sent a reminder text. She did not see the text the father sent the next morning at 8:50am, where he said he could not have them until after the changeover, which took place at 9 am.
34. The father’s mother was at the home to conduct the handover. The mother and paternal grandmother give very different versions of events. It is not necessary to traverse the details and resolve this dispute. The mother’s decision to enter the house via an unlocked rear window with Y was a poor one. Y was exposed to an altercation between his mother and paternal grandmother.
35. After the incident, the women took out intervention orders against each other and the father sought an intervention order against the mother and she sought one against him in reply. In late 2020, the parties requested that those proceedings be struck out.
36. The mother was somewhat defensive when cross-examined about the incident, saying she was desperate. What is of concern about that incident is her judgment with respect to involving Y in that dispute. It was more than simply walking into the house.
37. When cross-examined about the Centrelink dispute, the father rejected the proposition that the mother told him that if he wanted her to leave the house she needed Centrelink benefits. He acknowledged that she asked him to fill out the form but said the form was incorrect. He denied being asked to sign the form again prior to the mother moving out, and says he was only asked again at the conciliation conference where he signed it straight away. He said that she had written on the form that she had mid to high 80% care of the children when everyone was living in the same home. It struck me that he was somewhat at cross purposes and also being unreasonable in stance. He was working full-time. She was at home and undertaking part-time study. I do not have the impression that he did anything to assist her or to acknowledge that she was concerned about having a flow of income to allow her to move out, which was perfectly reasonable. It was not put to the mother that she had access to another source of funds. Rather the father impresses as being somewhat unreasonable and inflexible taking the view that the mother said she would move out but then did not. There is no suggestion that he offered any financial assistance to enable her to do that and it does not appear that he had any other proposed solution with respect to the Centrelink form.
38. Even if the mother did not ask him to sign the form again prior to the conciliation conference that would hardly be surprising given her previous experiences of him and her tendency to be passive in order to avoid conflict.

THE PARTIES’ COMMUNICATION

39. An example of the parties’ communication is found in the text exchange annexed to the mother’s trial affidavit with respect to the choice of X’s high school. The mother wrote to the father on 25 September 2020 about the children’s school enrolments. In the second paragraph of that email she refers to the father’s refusal to sign the Centrelink forms or provide the children’s birth certificates and says “I hope you can be reasonable and fair to no longer hinder processes that ultimately affect the children”. It should not have been surprising to her that the father responded firstly to address what he referred to as her false allegations. My view is that the parties would benefit from using one of the online parenting applications, such as My Family Wizard or 2houses, or one of the other parenting apps available. It would assist them by limiting their communication to issues concerning the children and would enable such communication to be conducted in a more constructive way.
40. It is clear that their communication difficulties are exacerbated by their very different personalities and approaches. I accept that the father perceives his communication to be polite and unproblematic when he said that to the family report writer for the second report. I also accept the mother’s perception that the remaining conflict is not reflected in how they speak to each other but in fact that they cannot reach agreements about simple arrangements such as children’s clothing and kinder.
41. The mother’s approach to dealing with the communication that she finds difficult has been at times to avoid it. She conceded that she did not consult the father about the choice of kindergarten for Y. She tried to justify this by saying that the father indicated interest in the kindergarten run by the council the year before. She said next year there will be more options and she is uncertain as to what will happen, because she does not know what the parenting arrangements will be. The mother also said she feels there will be issues regardless of whatever has previously been proposed. She then denied making unilateral decisions with respect to the kindergarten, saying that as there had been communications with the father where he said they should look at council programs, and so she did that. When it was put to her that she unilaterally enrolled Y without telling the father she replied that it was the only one available and it was solely during her time but that she now appreciates that with the parties having equal shared parental responsibility, the father needs to have a say. Of course equal shared parental responsibility goes further than that and requires the parties to consult and come to an agreement. If they are unable to reach agreement they will need to attend mediation and if necessary bring an application to Court.
42. The report writer observed at paragraphs 50 and 51 of her second report that:

The parties have not yet successfully navigated establishing an effective co-parenting dynamic post separation. Whilst the parties again demonstrated a capacity to remain in the same room as one another and to be civil in the presence of the children, there has been no progression in terms of the adult communication about the day-to-day care needs of the children. There has also been an incident which exacerbated the conflict, with the parties having now also sought IVO’s against each other.
Both parties expressed frustration that the other party does not respond to communication. For example, Mr Benning reported having requested information from Ms Austin about enrolling Y in three-year-old kindergarten for 2021, with no response received. He did however state that the parties have been able to remain civil towards one another when they do communicate in writing via text message and email.

43. Having witnessed both parties give evidence it appears to me that the main challenge for the parties with respect to the communication is not about the civility of the communication but its effectiveness. The parties need to have an effective strategy in order to co-parent for the benefit of the children. Both parents, to their credit, readily agreed to participate in the type of counselling that the family report writer recommended in her second report. Both expressed a willingness to attend joint sessions. It is a pity that they have not been more proactive about that having received the report some months ago now. I will not order the parents to attend counselling but will trust that they will make the appropriate arrangements. I will make an order permitting the parties to give a copy of the family reports to any counsellor they see. It will be important that any counsellor be provided with a copy of these reports, as the report writer has said the parties attend someone who has expertise in family law matters.
44. The report writer also recommended that the parties use one main form of communication, either email or an online parenting application. I think parties would benefit from using one of the many online parenting applications available such as Our Family Wizard, 2houses or My Mob. The benefit of these applications include ensuring a communication between the parents is positive and child focused and also holds parents accountable.
45. When the father was cross-examined, he said his attitude towards the mother changed after the first report and that he no longer feels that she is a terrible person. He says his views changed after raising his concerns with the family report and her giving assurances about his concerns about the mother’s mental health. He also said that no longer dealing with the stress of living separated under the one roof had taken the heat out of the conflict. He also benefited from attending post separation parenting courses.
46. The father also impressed me as being somewhat inflexible in his approach and thinking.
47. The father disagreed with the proposition that it was not in the children’s best interest for them to only have one out of four weekends with the mother. He said it allows him to facilitate relationships with the extended family on both sides which only he can provide. It was not put to the mother that she does not facilitate the children’s relationship with members of her extended family including her mother. Whether knowingly or not, the father has contributed to the strain in the relationship between the mother and maternal grandmother. This is clear from the text exchanges between them annexed to his trial affidavit.
48. After the parties resolved the property aspect of the trial, the mother applied for child support assessment. The father is challenging the assessment. The father rejected the suggestion that this was another area of conflict between the parents and said it is a dispute with the child support agency. It is disingenuous to describe it as purely a dispute with the child support agency as though the mother would have no interest in it giving very real weight on the income she receives. I do not have any evidence with respect to the assessment and the reasons for the objection and therefore cannot comment on the reasonableness of this or otherwise of that objection. I observe the mother is entitled to apply formally for a child support assessment, so the father is entitled to challenge it.

THE GRANDMOTHERS’ INVOLVEMENT IN THE CHILDREN’S CARE

49. Both the maternal and paternal grandmother has provided the parties with significant childcare assistance before and after the parties separated.
50. The father says that the mother has a difficult relationship with her mother and refers to the mother putting the children in the middle of their arguments. He communicates with the maternal grandmother directly and says that she has expressed concerns about the mother’s behaviour, moods and state of mind. He annexes correspondence between them to his trial affidavit. The texts he annexes between the father and the maternal grandmother go further than that.
51. When cross-examined about her relationship with her mother, the mother made it clear that she feels her mother had a lot of misguided conversations with the father during the early stages of their separation and thinks that she hoped they would not separate. The line of cross-examination about the mother’s relationship with her mother was suggestive of any tensions in their relationship being as a result of the maternal grandmother thinking highly of the father as a parent. However, the mother’s answers revealed a more nuanced situation where it seems clear that whether unintentionally or not, the mother has felt somewhat undermined and unsupported by her mother. The text exchanges between the maternal grandmother and the father would only underscore that to the mother. Having read those text exchanges, it is not surprising that she feels that way. Whether knowingly or not the father contributed to the mother’s feelings.
52. The father’s mother filed an affidavit in support of the father’s case. She was briefly cross-examined. I accept that she will continue to be available to help the father with the children.

THE FATHER’S HEALTH

53. The mother has concerns about the father’s physical health. He has hypertension and type two diabetes. The mother was concerned that the children had told her that the father blacked out. The father disagreed with this characterisation and said that whilst playing with the children he slipped on the tiles and hurt himself, so he stayed on the floor for a bit. He said he did not pass out. I accept his evidence on this point. I also accept that the children may well have described that incident as the father blacking out or something similar that would have caused the mother concern. I am not satisfied that the father’s health presents a risk to the children.

THE FAMILY REPORT WRITER

The First Family Report

54. Dr B prepared two family reports. The first report dated 4 November 2019. Dr B spoke to both grandmothers and to the mother’s psychologist Mr D. The parties were separated living under the one roof at the time.
55. She recorded that the parties sought equal shared parental responsibility. She noted that at the time they shared care of the children. They did not have a fixed schedule and both grandmothers helped on a weekly basis.
56. The mother sought that the children live in her primary care on the basis that she was their primary carer.
57. Dr B noted that although the father sought the mother’s time be supervised in his response, at the interview he sought that the children live with him and spend limited time with the mother due to his concerns about the impact of her mental health issues on her capacity to care for the children.
58. Both parents raised concerns about the other parent’s capacity to care for the children. The mother’s concerns were based on the father’s controlling behaviours and physical health. The father’s concerns is based on the mother’s mental health. The mother told the report writer that the father was not physically violent but threatening and intimidating and post-separation, engaged in conduct designed to undermine her parenting and exclude her.
59. The mother acknowledged suffering from depression and taking medication when she was 19 years old and having another episode of depression in 2007, during which, she was unhappy in her relationship with the father and had an affair. She uses cognitive behavioural techniques and mindfulness to assist her. She has never been hospitalised or treated by a mental health crisis team. She said if her mental health was poor, she would not be able to manage household duties, studying and parenting the children.
60. The father told the report writer that he was the primary carer for the children however, contradicted what he said about the mother’s involvement in parenting the children. He alleged the mother’s mental health was such that she could only manage Y in short bursts. After, having first denied snickering or laughing at the mother, saying that the mother was either lying or did not know what is real, he conceded that he could have done it unconsciously. He denied being financially controlling. He blamed the mother for the circumstances of the parties living under the same roof, saying she initially moved out but moved back after a few days as she was concerned about her financial entitlements.
61. The report writer spoke about the dynamic between the parents. She said that an impediment to the parents being able to develop civil and a productive co-parenting relationship in the future was the father’s negativity towards the mother, noting that he referred to her as a “terrible person”. She did note that the parents were able to stay in the same room as each other although they could not interact verbally. She observed them leaving the assessment with Y in the middle, holding each of their hands.
62. She observed a warm and loving sibling bond between the boys. X impressed as emotionally mature, the mother had provided him with a book about seeing family report writer’s which he said he found helpful. X was also insightful about the conflict between his parents and felt torn by this and proposed spending equal time with his parents rotating between four nights and three nights. He spoke lovingly and positively about both his parents and described fun activities that he does with both. If X could change something it would be for his parents to agree more often. He said usually his mother takes him to school. His maternal grandmother picks him up from school regularly, except when the paternal grandmother does on Tuesdays and Thursdays to take him to his sporting activities.
63. The report writer spoke to the maternal grandmother by phone and recorded that she felt caught between the middle of the two adults, she provided a seemingly balanced opinion, not favouring one parent over the other. She referred to the tension between the parents and thought in part it was due to the parents’ different personalities, with the mother being more emotional and the father more reserved. She thought an equal time arrangement would be fair. The maternal grandmother did not have significant concerns about the mother’s mental health and did not think it was fair she be criticised for it now that the parties were separated. She acknowledged that the mother was under a lot of stress and currently showed emotional upset. She did not have concerns for either parent’s parenting capacity.
64. The paternal grandmother shared similar insights about the parents, but was slightly more skewed in favour of the father. She described the mother as moody and manipulative and also appeared hurt.
65. The mother’s psychologist informed the report writer that the mother sought professional support before the parties separated and first started seeing him in October 2016. His view was that, whilst the mother’s anxiety and stress was currently markedly elevated, she was still able to function normally and that she felt financially strained and disempowered by the father. In his view the mother had found capacity to seek assistance when she needed it for her mental health.
66. Both parties acknowledged that the mother was the children’s primary carer when they were younger. The report writer did not see signs of any strain on the relationship between the mother and X as the father had implied. Significantly, she also found that the father’s concerns about the mother did not appear to be accurate and pointed out that, given the living situation, it is not unrealistic that the mother would try to create distance and therefore spend much of the time in her room, rather than her behaviour being suggestive of her sleeping excessively and being unwell. The report writer acknowledged the current situation was exacerbating the mother’s mental health and if the parties could prioritise living separately it would be of significant assistance.
67. The report writer identified one of the difficulties for the family is the different developmental ages of the children. X would cope better with longer periods with each parent, whilst Y would benefit from more frequent time with each parent. The parents need to find a balance to cater for the needs of both children. She noted that there would be a period of adjustment when the parties cease living under one roof and noted that both intended for the maternal and paternal grandmother to remain involved in children’s care. Given the conflict between the parents and the need for stability, the report writer recommended that the mother continue her role as the primary carer of the children, and noted that given Y’s young age equal shared care would not be easy.
68. The report writer also identified the mother as the parent more likely to encourage and facilitate the relationship with the other parent. She found that there was some evidence to support the concerns that the mother had about the father taking steps to exclude her from parenting the children when they were both at home. She further noted the mother’s lack of assertiveness and anxiety also contributed to this. She thought his narrative indicated a contempt for the mother, portraying her as incompetent despite her having significantly contributed to raising the children.
69. The mother did not express the same hostility towards the father and acknowledged his positive relationship with the children. The report writer acknowledged the father denying excluding the mother from engaging with the children, but found it was plausible that this had occurred unconsciously given his desire to spend as much time with the children possible. The report writer noted that the father’s negative views of the mother and his actions in controlling the finances post separation, including requiring the mother to account for all expenses with respect to the children and only reimbursing her for ones he approved of, clearly contributed to the conflict between the parents. She thought that the father’s negative attitude towards the mother and his actions in exerting control post separation suggested that he would have difficulty in engaging in child focussed discussions with the mother and being prepared to negotiate and compromise.
70. She recommended that the children live primarily with the mother and spend substantial and significant time with the father, which could be for example 3 weekends out of 4 to coincide with the father’s rostered day off, and another overnight the other week. The same arrangements could continue during the school holidays until Y starts four-year-old kindergarten.

The Second Family Report

71. The second report was prepared 11 months later. At that time, the mother was seeking sole parental responsibility and that the children remain in her primary care and spend regular time with the father. The father sought equal shared parental responsibility and an equal time arrangement. The father was no longer concerned about the mother’s mental health.
72. The incident at the home between the mother and paternal grandmother had occurred at the home. She felt she was justified in her actions as she was desperate.
73. The mother expressed concern that the father was continuing to be controlling and that the father had limited availability for the children, relying primarily on his mother to conduct the handovers.
74. The mother proposed that the father’s time increased to overnight on Sundays so he could take advantage of his rostered day off. She was conflicted about the weekend arrangements, wanting some down time but also wanting quality time with the children.
75. The father’s narrative was different to the previous report interview and was focused on being concerned that he have the opportunity to be an actively involved parent. The report writer noted that contrary to his then most recent affidavit filed 29 June 2020, the father said he was reassured by the first family report and no longer thought the mother was a risk to the children. The father said the children return from the mother happy and healthy. He felt better in himself and was also eating better. He said he would be able to work from home a couple of mornings a week so he could take X to school. He mentioned he will need the assistance of both grandmothers. He said he would be able to take time off during the Christmas school holidays but was not sure about the term holidays and thought he would need to rely on parental family whilst he was at work.
76. At the time of the second report interviews, the parties still did not have an effective co-parenting relationship. Both expressed frustration about the other not responding to communication. The mother found communicating with the father stressful and preferred to go through lawyers. She was not confident about them being able to make shared decisions together in the future and felt that the father was difficult for its own sake.
77. X talked about wanting to go to C School where many of his friends were going. He also described missing his hobbies. He was not interested in going back to sports. Both activities ceased due to COVID-19. The parents agree he would like to take up hobbies again. They will need to consult each other about extracurricular activities for the children.
78. There is some disagreement between the parties as to whether or not X was to continue sports. He does want to continue hobbies. Despite raising these complaints, the mother does not address this. The father does at Order 9 of his case outline.
79. I have considered the father’s proposed Order 9 in his case outline and given that this has been an area of conflict will make an order in terms of Order 9, but will not include the first sentence, which refers to the children’s views with respect to established extracurricular activities as that is likely to lead to further dispute.
80. The whole family appeared to have benefited from the parents living separately. The children showed their strong bond with both parents and would benefit from significant time with both.
81. In her second family report, the report writer refers to the parties being able to look to a future equal shared care arrangement. She does not provide a timeframe for this and it is one of the issues the parties were in dispute about, with the father arguing the report supports an immediate equal shared care arrangement and the mother arguing that the report supports an equal time arrangement not commencing before Y starts school and the parties undergo counselling.
82. At paragraph 82 of the second report the report writer said the following:

Given the children’s strong, positive relationships with each parent; the strong, loving sibling bond; their proven capacity to manage the transitions between the households; and, the parent’s ability to provide appropriate care to the children, there is merit in considering transitioning to an equal shared care arrangement, or close to such an arrangement.

83. The current weekend arrangement could continue as the children were used to it, or a fortnightly weekend arrangement could be implemented to enable both parents to be actively involved in the children’s day to day activities and weekend activities.
84. At paragraphs 85 and 86 of the second report:

It is anticipated that the parties would promote the children’s needs by doing their best to ensure they are in substantial attendance for the majority of the time whilst the children are in their care. In situations when this is not feasible, it is suggested that the other parent be offered the opportunity to care for the children at such time. This includes occasions when the children, namely X at this stage, are due to attend extra-curricular activities. The children would benefit from both parents being involved in their interests and pursuits where possible.
These arrangements could be reviewed through mediation once Y reaches primary school, if needed. There may be scope at this time to progress to a week about arrangement, as the children will both be of an age where this will be manageable and may be preferable to splitting their week in terms of promoting stability and consistency in their routine in line with their changing needs as the children age.

85. The mother’s Counsel cross-examined the report writer about her recommendations. He put to her that she does not suggest an equal time arrangement should start immediately. She replied saying there needs to be a transition and a consideration of the circumstances. She agreed she did not put a time frame on it. He then put to her, that given Y’s age, he read the report as suggesting the transition to equal time would take place in the future. She said perhaps that was an issue with her when she wrote her report. The report writer said when writing the report she thought that a shared care arrangement should be first introduced over a split week. A week-about arrangement would not be in Y’s interests at his current age.
86. He then asked the report writer about her observations of the parties’ communication, noting that she concluded in her first report that the parties do not communicate well and without therapeutic intervention there should not be an equal time arrangement. She conceded she could understand that point but since then the parties have been able to manage the care arrangements and changeovers with the assistance of both grandmothers.
87. Whilst acknowledging the research into the difficulties young children have managing an equal time arrangement, she correctly pointed out that it is necessary to consider the child’s individual circumstances and the quality of the child’s relationship with both parents before separation as well.
88. The report writer said the father told her he could be available to care for the children in the mornings. He said he could review his work schedule and be more available and that the mother wanted to work more. Both grandmothers would also be involved in the children’s care 4 days a week. X could cope with a parent not being available to take him to school and so on during the week, whereas Y would not. As noted earlier, for Y, frequent time with both parents is important.
89. The report writer gave evidence that the father’s attitude towards the mother had changed significantly between the two reports. When it was suggested the only change in the father’s view of the mother was that he was no longer concerned about her mental health she said she did not believe the father had the same views and values regarding the mother he originally held. The report writer then conceded the father did not have a lot to say about the mother. It was put to her that she did not refer to the father’s negative opinion and disdain for the mother changing; she said in part she was discussing everybody’s stress which was compounded by living under one roof. Part of the discussion she had with the father was that he felt happier and healthier now that they were not living under the same roof.
90. The report writer also agreed that in the first report, she identified the father engineering opportunities to exclude the mother and some of his actions towards her were punitive. She does not say that this has changed in her second report. In the first report she also identified the father having difficulties engaging in child focused discussions and again does not refer to this changing in the second report. She agreed that equal time is not a good idea in cases with high conflict and where the parents are unable to communicate.
91. The report writer remained in favour of an equal or substantially shared care arrangement with the split week rather than week about, taking into account Y’s young age and the need for him to have frequent time with both parents. She agreed that equal time, whether broken up into shorter blocks or a 7 day block, is different to there being a home base for child. She agreed that a home base is less important for children as they get older and that it is very dependent on individual children. Her view of Y was that he was a robust little boy said to be doing well. She also said with respect to Y that the period between the two reports was a significant period developmentally for Y who is now almost 4.
92. When cross-examined by the father’s Counsel, the report writer agreed that at the time of the second report the parties and children were all more settled. When asked if she suggested that the mother was hypersensitive, she said she would not abuse that phrase with the talk about perception and how emotions might feed into her views rather than reality. With respect to the mother wanting more time on weekends she said the mother was conflicted by her competing demands in her schedule. Most parents in the context of a busy week, want some downtime on the weekend. She accepted the father’s narrative that he wants the opportunity to be an active, hands-on parent. My concern is that seems somewhat couched in terms of his own convenience. Being an actively involved parent means having to deal with all the mundane tasks during the week and dealing with school issues as well.
93. The report writer said she had the sense that the incident at the home between the mother and paternal grandmother was still a significant concern to everybody. She felt that the majority, if not all, of the father’s concerns had been allayed considering the father would not have proposed a shared care arrangement if he still thought the mother was a risk to the children. This however, does not address the father’s negative attitude towards the mother. In contrast to the report writer, I am not satisfied that there has been a major shift in the father’s attitude.
94. The report writer agreed that the children seem to have adapted well to living in separate households and transitioning well between their parents. She also observed that both parents gave positive feedback during that day’s interviews.
95. The father’s Counsel asked the report writer to explain what she meant when she referred to transitioning. She said in writing that, she was thinking of the timing of the children’s school terms and childcare, as well as the flexibility of the father’s workplace and that there were a number of reasons why she should not refer to a specific time, and that it also depended on the availability of the grandparents. She did not necessarily have in mind the time arrangement needed to wait until Y starts school. It would have been of greater assistance to the parties if she had expanded on this in her report.
96. With respect to her recommendations about therapy, she said her preference is that the parents would commence the process so that they have a solid foundation in place before implementing an equal time arrangement.
97. What was clear from her evidence is that the report writer had the impression of the father having more availability than I am satisfied he has and the mother having less availability than she has. The grandmothers are important to the children but fundamentally, it is the parents who need to be involved in the children’s day to day care. She also acknowledged that it was important to recognise that X and Y have different developmental needs. Whilst much of the focus has been on Y due to his young age, it is important not to forget X. The other factor which will assist Y with the transitions is that he has his big brother with him. She did note, with interest, the letter that the father obtained from his employer does not reflect the flexibility the father had suggested he had with his work. She noted that the father had ample opportunity to address that issue.
98. The mother expressed concern about the father trying to control communication and being combative but did not provide evidence of her efforts to communicate with the father about issues such as kindergarten and school.
99. At paragraph 91 of the second report:

Regardless, Ms Austin displayed a lack of perspective about the inappropriateness of her own actions, including an absence of insight into the impact of these events on Y who was directly exposed to her actions, and Ms Austin’s pivotal role in escalating the conflict. Her actions raised questions about her asserted disempowerment in the parental dynamic and gives weight to the notion of the existence of a power struggle, as depicted in the previous assessment.

100. The report writer thought the parties require professional assistance to help them establish an effective co-parenting relationship. They would also benefit from using an online parenting application to set boundaries to their communication.

LEGAL PRINCIPLES AND THEIR APPLICATION TO THIS CASE

101. The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
102. The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
103. In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
104. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
105. The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
106. The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 and McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405.
107. There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these Reasons.
108. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that in doing so is consistent with the children’s best interests being treated as paramount.
109. Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
110. If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent. In this case the parents agree they should exercise equal shared parental responsibility. Both have valuable contributions to make to the long term decisions for the children’s welfare. To their credit both parents indicated a willingness to engage in counselling, including joint sessions to improve their communication. It will be important that they engage a counsellor experienced in dealing with the dynamics between separated parents. I do not think it is necessary to order the parties attend counselling.
111. I am satisfied that 60CC(2)(a) applies in this matter. The orders I will make will enable the children to continue to enjoy a meaningful relationship with both parents.
112. For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
113. Y is too young to express his views about the parenting arrangement. It is clear from X’s comments to the family report writer that he has a strong sense of fairness which is developmentally appropriate. The boys have a close and loving relationship with both parents and their grandmothers also play an important role in their care.
114. Both parents have taken up the opportunity to participate in decision-making about the major long-term issues for the children and the opportunities to spend time with and communicate the children.
115. The father has lodged an objection with the child support agency with respect to the assessment of child support. When cross-examined he said he thought the amount he was assessed to pay was unreasonable.
116. One of the difficulties in this case is catering for the needs of both children who are at very different stages of development. X is able to cope with longer periods away from each parent and may find that less disruptive than more frequent changeovers between the parents.
117. Neither party raises issues of any practical difficulty or expense with respect to the children spending time with the other parent, apart from the father’s availability to care for the children due to his work commitments and the extent to which both parents need to rely on the grandmothers for assistance.
118. The father has been working from home. He says his employer has flexible work arrangements that will remain in place long term. He says he will be able to work from home for a couple of hours so he can take the children to school.
119. I do not have concerns about either parents’ ability to provide for the children’s needs including their emotional and intellectual needs.
120. Both parents describe a dysfunctional and unhappy relationship. The mother describes the father being abusive and controlling. There are no family violence orders in place between the parties. Neither raises violence or abuse as a current concern.
121. I do not think it is in the children’s best interests to live in an equal shared care arrangement. The parents do not have a parenting alliance where they can effectively co-parent. I am not as confident as the report writer that the father’s attitudes have really changed towards the mother. In addition he also appears somewhat inflexible. The issue with respect to the Centrelink forms is a good example of his inflexibility. He stresses that he signed the form at the conciliation conference but does not engage with the fact that he has been complaining about the mother not moving out of the home and the mother not having access to funds. He does not say that he offered any alternatives but just disagreed with the information she has put on the form.
122. Criticism must also be made of the mother. She should have consulted with the father about the school issue. My impression is that she is avoidant of conflict.
123. I am satisfied that it is in the children’s best interests for the father’s time with the children to increase so that in one week he cares for the children from after school/kindergarten on Friday until before school on Tuesday and in the second week from after school Wednesday until before school on Thursday. This increases the father’s time, providing for a block of 4 nights in one week including the father’s rostered alternate Monday off. The arrangement in week 2 remains unchanged. This arrangement should remain in place during the term holidays as well until the commencement of the long summer holidays in December this year. The long summer holidays should be shared equally between the parents on a week about basis. Whilst that means Y will be away from his mother for a 7 day period, it is during the holiday season and he will have his big brother with him. This is preferable to the mother’s proposal, which splits the holidays evenly but in a 4 night and 3 night block.
124. From 2022 onwards, I will order that the alternating week arrangement continue throughout school term, and that the school term holidays be shared equally. In the future when Y is older, the parties may prefer to reconfigure the term time arrangement so that the father has a single block of 5 nights. Hopefully the parties’ communication and trust in each other will improve with the assistance of counselling.
125. For these reasons I am satisfied that the orders I make are in the children’s best interests.

Associate:

Dated: 17 June 2021