Ahern and Guerin
[2008] FMCAfam 1323
•24 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AHERN & GUERIN | [2008] FMCAfam 1323 |
| FAMILY LAW – Children – best interests – shared care – schooling issues – children’s views. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DAA, 65D Family Law Amendment (Shared Parental Responsibility) Act 2006 |
| Applicant: | MS AHERN |
| Respondent: | MS GUERIN |
| File Number: | MLC 2376 of 2008 |
| Judgment of: | Connolly FM |
| Hearing dates: | 3 & 4 December 2008 |
| Date of Last Submission: | 4 December 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 24 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms. Tulloch |
| Solicitors for the Applicant: | Neesham White Gentle |
| Counsel for the Respondent: | Mr. Dickson |
| Solicitors for the Respondent: | Septimus Jones & Lee |
ORDERS
That all extant parenting orders be discharged.
That the parents to each retain equal shared parental responsibility for the children [X Guerin-Ahern] born in 1996 and [Y Guerin-Ahern] born in 1997.
That each parent be responsible for the day to day decisions affecting the care of the children during such periods of time as the children are residing with each of them.
That the children live with the parents as follows:
(a)
(i)With respect to the child [X] on a week about basis with changeovers to take place at the conclusion of school on Friday.
(ii)With respect to the child [Y] with her father each alternate week from the conclusion of school on Friday to the commencement of school on Wednesday and with the mother for the balance of the time. Such weekend time to coincide with the weekend times enjoyed by the child [X] and changeovers to take place at the conclusion of school on Wednesday.
(b)That the cycle referred to in subparagraph (a) shall continue at the beginning of each school term such that the parent that did not have the children in the last week of the previous term shall have the children for the first week of the new term.
(c)
For one half of each of the school term holidays as agreed between the parties and failing agreement with the Applicant
Ms Ahern for the first half being from the conclusion of school or 3:30pm on the last day of term until 5pm on the middle Saturday of the said holidays and with the Respondent (Ms Guerin) for the second half being 5pm in the middle Saturday until the commencement of school or 9am on the first day of next term.
(d)During the long summer school holidays:
(i)For 2008.2009 and in each alternate year thereafter:
A.With the Applicant (Ms Ahern) from the last day of Term 4 at the conclusion of school (or 3:30pm) until 3:30pm on the middle day of the said holidays;
B.With the Respondent (Ms Guerin) from 3:30pm on the middle day of the said holidays until the commencement of school (or 9am) on the first day of the first term that the children attend school;
(ii)For 2009/2010 and in each alternate year thereafter:
A.With the Respondent (Ms Guerin) from the last day of Term 4 at the conclusion of school (or 3:30pm) until 3:30pm on the middle day of the said holidays;
B.With the Applicant (Ms Ahern) from 3:30pm on the middle day of the said holidays until the commencement of school (or 9am) on the first day of the first term that the children attend school.
(e)For Christmas in 2008 and in each alternate year thereafter the Applicant’s (Ms Ahern’s) time with the children to be suspended from 3pm on Christmas Day until 3pm on Boxing Day.
(f)For Christmas in 2009 and in each alternate year the Respondent’s (Ms Guerin’s) time with the children
(g)On each of the children’s birthdays in each year:
(i)Where the said birthday falls on a school day, the children to spend two hours with the parent with whom they are not residing on that day at times to be agreed and failing agreement from 5:30pm until 7:30pm.
(ii)Where the said birthday falls on a non-school day, the children to spend five hours with the parent with whom they are not residing on that day at times to be agreed and failing agreement from 12:00 noon to 5pm.
(h)On each of the parents’ birthdays in each year the children spend four hours at times as may be agreed or failing agreement from 3:30pm until 7:30pm with the birthday parent, the birthday parent to be responsible for collecting the children and returning them to the other parents home.
(i)Where the children’s time with the Applicant (Ms Ahern) otherwise falls on Mother’s Day, such time to be suspended from 9:30am to 5pm on that day and the Respondent (Ms Guerin) to spend that period with the children.
(j)Where the children’s time with the Respondent (Ms Guerin) otherwise falls on Father’s Day, such time to be suspended from 9:30am to 5pm on that day and the Applicant (Ms Ahern) to spend that period with the children.
(k)The parent with whom the children are living shall ensure that the other parent may attend all significant events in the children’s lives including but not limited to the first day at a new school, graduation ceremonies, public performances, presentations and competition semi-finals and finals.
(l)That during such periods of time as the children are living with each of the parents the parent with whom they are living to facilitate and encourage the children to telephone, text or email the other parent at any time requested by the children.
(m)For such further or other times as the parents may agree between them.
All changeovers that coincide with the commencement or conclusion of school are to take place at the children’s school and otherwise to be collected from or returned to the other parent’s home.
That in the event that either parent is unable to care for the children for any period in excess of 72 hours during times that the children are to otherwise live with her pursuant to these orders, that parent or their agent shall contact the other parent who shall first be offered the care of the children for the relevant period.
That each parent be and is hereby restrained by themselves and by their servants and agents from denigrating the other parent in the hearing or presence of the children.
During such periods as either parent may take the children away from their usual residence for any period longer than 48 hours the parent taking the children away to provide a contact mobile telephone number to the other parent and to ensure that it remains switched on for the duration of each of the said periods.
The parents to consult each other with respect to any major educational issues affecting either of the children and no changes are to be instigated by either parent without the prior written consent of both parties.
That each parent to all such acts and things and sign all such documents to ensure that:
(a)Both children attend [E] Primary School for the balance of 2008;
(b)[X] attends [E] Secondary College from 2009 onwards and the SEAL program at that school;
(c)[Y] attends [E] Primary School until the conclusion of her grade 6 year;
(d)[Y] attends [B] College from 2010 and onwards;
(e)Both children participate in all usual school activities, such as school camps, excursions and similar;
(f)All school costs arising from (a) to (f) (inclusive) above are to be shared equally by the parents;
(g)Neither child is to be enrolled in any other school without the prior written consent of both parents;
(h)Both children to participate and continue to participate in any sporting and extra curricular activities determined by the parent with whom they are residing during all periods when they are living with that parent and all costs to be paid for by the enrolling parent;
(i)The parents to each pay one half of the costs of any of the children’s activities in which they have been enrolled with the written agreement of both parents however the costs of any such activities without the prior written consent of the other parent to be paid for solely by the enrolling parent.
That each parent to all such acts and things and sign all such documents as may be required to ensure that the other parent is able to receive from the children’s school(s) copies of all school reports, newsletters, school correspondence and further be at liberty to attend all school functions and events relating to the children, including but not limited to parent teacher interviews.
Each parent to notify the other by text or e-mail of any time that either child may be absent from school for more than one day and the reason for such absence within 24 hours of the occurrence.
That each parent do all such acts and things and sign all such documents as may be required to ensure that each parent is the primary contact person for each of the children for all school enrolments and medical purposes during those periods when the children are living with each of them respectively.
That each parent manage and provide information to the other about medical issues or illness affecting the children as follows:
(a)In the event of a medical emergency requiring hospital treatment, an ambulance or loss of consciousness by the child, the other parent to be notified via phone or text message;
(b)In the event of any significant medical problem or illness observed by either parent when the children are in the care of each of them they shall inform the other about their observations via email within 48 hours;
(c)In the event that either parent takes the children to a doctor or other medical practitioner they shall advise the other parent by either email or text message and upon the appointment taking place shall advise the other parent by text message of the diagnosis, treatment, medication prescribed and any other outcome of the said appointment including but not limited to pathology, x-rays and follow up therapies.
(d)Each parent to advise the other via a note sent with the children, text message or email of any medication, prescription or non-prescription, taken by the children in the 48 hour period prior to each changeover; and
(e)That each parent ensure and give all necessary authorities to ensure that the children’s medical records are available to each of them;
(f)Each parent to pay all medical and pharmaceutical costs arising from the day to day medical needs of the children whilst in their care;
(g)Each parent to meet one half of the cost of dental, optical and any other recurring medical, dental or optical treatment required by the children provided that such treatment is agreed to between the parents in writing or via email prior to that treatment being undertaken, the parent who does not initiate such treatment shall not be liable for such costs if their prior consent is not obtained;
(h)That each parent shall ensure that the children do not have any surgery or invasive procedure without the prior written consent of both parents, save in the event of an emergency when the other parent cannot be contacted.
That neither parent shall have the children undertake or allow the children to have any optional medical or bodily procedures without the prior written consent of the other party, such procedures to include but not be limited to: body piercing, alternative therapies or tattooing.
The Respondent parent Ms Guerin within 28 days of these orders provide all family photographs to April 2001 to the solicitors for the Applicant (Ms Ahern) for the purposes of enabling the Applicant to obtain copies of those photos at her expense and the Applicant’s solicitors to ensure that all photographs delivered to them are returned to the Respondent’s solicitors within a further period of 28 days.
Certify for Advocacy
AND THE COURT NOTES THAT:
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Ahern & Guerin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2376 of 2008
| MS AHERN |
Applicant
And
| MS GUERIN |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from competing applications with respect to the living and schooling arrangements for the parties’ two children, [X] aged 12 and [Y] aged 11. When the matter commenced the Applicant was seeking orders that the children live in her care 10 nights in each fortnight and with the mother for the balance of the time. The Respondent mother was seeking orders that were in effect a continuation of the current arrangements. That is that there be a shared care arrangement with respect to the child [X] and that [Y] spend 9 nights with her mother and 5 with the other parent. At the conclusion of the Applicant’s evidence and her cross examination the Court was told that she was amending her application to ask that the Court make orders that the children spend week about with each parent. The Respondent mother maintained her original position. In relation to the children’s schooling the Applicant wanted orders that both children attend the [E] Secondary College. [X] will commence in 2009 and [Y] in 2010. The Respondent did not oppose the arrangements for [X] but wanted [Y] to attend either [C] College which is a private Christian school in the [B] area or [B] College. There are also various specific issues orders with respect to which the parties had different views.
The documents
a) The Application is supported by:
i)the Applicant’s initiating application filed on 22 April 2008,
ii)the Applicant’s supporting affidavit affirmed on 22 April 2008 and filed the same date,
iii)the Applicant’s further affidavit affirmed on 28 November 2008 and filed on 1 December 2008,
iv)the Applicant’s outline of case document dated 2 December 2008.
b)The Response is supported by:
i)the Response filed 10 June 2008,
ii)the Respondent’s affidavit sworn 4 June 2008 and filed 10 June 2008,
iii)the Respondent’s further affidavit sworn 1 December 2008 and filed 1 December 2008,
iv)the affidavit of Mr M sworn on 1 December 2008 and filed on 1 December 2008,
v)the Respondent’s outline of case document filed on 3 December 2008.
c)In addition, there was an affidavit sworn 13 July 2008 and filed on 17 July 2008 by Terrance Laidler who prepared a family report which was dated 10 July 2008 and was attached to the affidavit.
The background
The father was born in 1952 and is now 56 years of age and was born Mr Ahern but since June 2001, he has been living as a female and has undergone 8 years of treatment at the [omitted] Medical Centre and surgery in Thailand the result of which has enabled him to regard himself as a female and she says she has been legally a female since August 2007. She is now known as Ms Ahern and prefers to be referred to as the other parent in these proceedings. She is currently unemployed and is in receipt of Centrelink payments. She suffers from a severe back injury as well as post surgical complications following the gender reassignment surgery. Centrelink will be further reviewing her position in March of 2009. She is also currently in receipt of child support payments from the children’s mother. She resides at [omitted].
The mother is now 51 years of age having been born in 1957 and lives with her husband Mr M whom she married in March 2008. They currently live at [omitted] a property owned by the wife. On 1 October 2007, they purchased a property at [B] on which they are building a house which they are hoping will be completed some time early next year. This property will be a further 25 minutes drive from the school the children are now attending at [E] and also from the other parent’s home. The mother is currently employed as a [omitted] at the [E] Primary School where the children attended last year and her husband is employed as an [omitted]. The mother was diagnosed with breast cancer in January 2005 and has had surgery and chemotherapy and is now in remission.
The parties commenced cohabitation in 1996, separated under the one roof in early 2001 and have lived in separate residences since April 2001. There are two children of the relationship, [X Guerin-Ahern] born in 1996 (12) and [Y Guerin-Ahern] born in 1997 (11).
On 10 November 2004 final orders where made in the Family Court pursuant to which the children were to live with the mother and have contact with the Applicant parent each alternate week from the conclusion of school Friday to the commencement of school on Wednesday. There were also provisions for the sharing of school holidays as well as special days and a number of specific issues orders. The orders were made by consent.
In March 2008, the mother issued proceedings to enable the children to attend her wedding in March 2008. Those proceedings resulted in orders being made by consent on 20 March 2008 which enabled the children to attend the wedding. On 22 April 2008 the Applicant issued these proceedings seeking changes to the living arrangements as well as orders with respect to the children’s schooling and other specific issue orders. On 15 July 2008 when the matter first came before the Court the parties again entered into consent orders whereby the living arrangements for [X] were extended to enable [X] to live with each parent week and week about. The arrangements for [Y] continued on the basis that she lived with her mother and with the Applicant from after school Friday to the commencement of school on Wednesday. There was also provision for the school holidays and in addition, there were arrangements for change over and a number of notations including a notation that [X] will commence school at the [E] Secondary College in 2009 under the SEAL program.
The law
The law with respect to the determination of children’s issues has recently been amended with the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006. It is now incumbent on the Court to decide matters in accordance with that legislation. Section 65D of the Family Law Act 1975 provides that a Court may make such order as it thinks proper, subject to Section 61DA (presumption of equal shared parental responsibility when making parenting orders). Section 61DAA(1) states that where an order provides that a child’s parents are to have equal shared parental responsibility, the Court must consider: a) Whether the child spending equal time with each parent is in the best interests of the child; b) whether spending equal time is reasonably practical, and; c) consider making such an order. Since 61DAA(2) states that if the Court does not make an order for equal time in those circumstances, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests and whether spending substantial and significant time is reasonably practical. The Court must consider making such an order. The legislation also defines what is meant by ‘substantial and significant time’ and the matters to be taken into account when considering whether it is reasonably practical to make such an order. In deciding whether to make a particular parenting order in relation to a child, a Court must still regard the best interests of the child as the paramount consideration (Section 60CA). However, in determining what is in the best interests of a child, (Section 60CC) the legislation has created a set of primary and additional considerations. Section 60CC(2):
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Section 60CC(3): (3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
Findings and conclusions
In general I have found the evidence given by the mother to be truthful and indeed she was prepared to agree to a number of propositions put to her even when those answers did not assist her cause. The Applicant parent, on the other hand, on many occasions avoided the questions put to her and on others in my view responded untruthfully. The Applicant claims the transgender issue led to the breakdown of the parties’ relationship. That was denied by the Respondent mother who said other things caused the parties to separate. Appropriately this was not an issue that was pursued by either party.
The Applicant told the counsellor in paragraph 4.2, 4.3 and 4.4 of the counsellor’s report
4.2 – Ms Ahern sees the current situation as ‘not just a dispute about schooling or how much time they spend where. … no, this has an 8 year history and for 8 years Ms Guerin has tried to minimise the time I spend with the kids … and that’s been a cause of constant tension for the kids for those 8 years … even about a year ago, they came to me and said that they wanted more time with me’.
4.3 – She told me that she was ‘concerned about their treatment in the other household … and hostility towards me from
Ms Guerin … it’s subtle but they read it … it’s not as direct as they aren’t allowed to contact me … they just know that she’ll be angry with them after they phone …that’s why I’d prefer some specific times for telephone contact … [Y] had a dancing display … when I approached the children, they were worried about talking to me’.
4.4 – Ms Ahern also expressed concern that ‘every encounter I have with Mr M is hostile … and he has more access to my kids than I do’. In her assessment ‘[Y] gets on with Mr M OK … but [X] not so good … they have problems with Mr M yelling at them’.
Further in paragraph 4.6 of the same report, she told the counsellor “she felt that ‘the conflict comes from Ms Guerin’.”
The Applicant agreed in cross-examination that it was her case that
Ms Guerin had tried to minimise her time with the children for 8 years. Despite attempting to avoid answering questions on this topic it became very clear that the Applicant’s claim was clearly wrong. Ultimately she conceded that orders were made by consent in 2004 which provided the children spend 5 nights a fortnight with the Applicant. When asked:
“5 nights a fortnight allowed you to play a significant role in the lives of the children?”
she answered reluctantly:
“In some respects yes.”
The allegation that Ms Guerin tried to minimise Ms Ahern’s time with the children is put into further context by the current arrangements of a week about with [X] and a 5/9 arrangement with [Y]. Again these arrangements were the subject of consent orders in July of this year. The shear hypocrisy of the minimisation allegation is emphasised by the fact that the Applicant’s position throughout her cross-examination was that despite the fact that the mother had been the primary carer of the children up until the middle of this year, her time with both children should be reduced to 4 out of 14. That was not withstanding that it did not accord with the children’s views.
The children’s views according to the counsellor’s report are set out with respect to [X] in paragraph 6.1, 6.2 and 6.3 of the report:
6.1 – [X] is a friendly, articulate and relatively mature youngster who understood my role and did not seem to me to have any difficulty in engaging with me on any of the 3 occasions we met to explain to me what he wanted in respect of his living arrangements and why: ‘I love [Ms Ahern] and my Mum … and I want it 50/50 … I want the chance to communicate with them equally … week about would be the best way … that way there’d be fewer shifts’.
6.2 – When I asked his reasons, [X] said: ‘I just want it to be fair because I love them both’. I pressed a little, wondering if he was not just trying to sort out ‘an adult’s problem’. [X] said: ‘Yeah, I suppose I am … because they can’t!’
6.3 – I asked if he thought his mother and Ms Ahern understood that this was what he wanted. [X] said: ‘Yeah, I think so … I’ve discussed it with them’. He volunteered: “And they know I’d really like to go to [E] Secondary College … but Mum wants me to try [B]’. He reported a little tension between himself and his mother over the matter, but also that he was confident that both Ms Ahern and Ms Guerin had heard what he wanted and would give this significant weight ‘with time’.
With respect to [Y], paragraph 7.1, 7.2, 7.3 and 7.4 contain the relevant evidence:
7.1 – [Y] was quieter than her brother at interview, but no less assertive or clear in what she wanted and why: ‘I get on well with both Mum and [Ms Ahern] … now we go to [Ms Ahern] after school Friday until Wednesday … and then we stay with Mum the next Friday and go to [Ms Ahern’s] the Friday after … but I think it should be about half/half … because that’s fair for both of them’.
7.2 – I suggested other arrangements that increased her time with [Ms Ahern], but again she was clear: ‘No, I don’t think those are fair’.
7.3 – [Y] wants to ‘stay at my school … because that’s where my friends are … and when I finish primary school, I probably want to go to school in [E] too, because that’s where my friends will be going’. I talked about the value in making new friends in [B], so she could have a broader range of friends and I think she genuinely took my points but finished by saying: ‘No, I still think I want to go to school in [E]’.
7.4 – [Y] confirmed for me, in answer to a direct question, that she had felt under some pressure to ‘get into the accelerated learning program … and I really don’t want to … I would like [Ms Ahern] to stop trying to convince me’.
The counsellor was cross-examined about the report:
“the question was whether it should be an equal sharing?”
He replied:
“Yes it should be equal I think.”
He was then asked:
“You make that recommendation for both children?”
“I do”
he answered. He was then further asked:
“Do you see that as an appropriate resolution of the matter?”
“If it accords with the children’s wishes at the time I spoke to them I would’ve thought both though [X] more strongly was asking for equal time.”
While in cross-examination he said:
“that’s what I would’ve said at the time of my report. To actually talk about that I’d really like a chance to talk to the kids after they experience that regime because that might not have been the way they have responded to it. As you say, [Y] might really value the time she has alone with her mother and [X] the time he has with [Ms Ahern] and perhaps that would be good.”
“That wouldn’t surprise you?”
“It wouldn’t surprise me no.”
The mother says about [X]’s views in paragraphs 31 and 32 of her affidavit filed on 1 December 2008 as follows:
31. [X] has appeared to settle into the new arrangements. He is a child who likes things to be fair and equal and the shared arrangements for his care satisfy this. [X] feels he has achieved a sort of fairness in his care arrangements and that in his own mind he has managed to settle a dispute between [Ms Ahern] and me by making the choice to live equally with us.
32. When initially discussing possible schools for [X],
[Ms Ahern] had expressed approval for [B] College. She later withdrew her support for this school after Mr M and I had subsequently purchased land in [B]. I agreed to the current arrangements for [X] as he seemed adamant that it was his preference, although I was and continue to be concerned about the pressure [Ms Ahern] exerted over [X] to achieve this.
In relation to [Y], Ms Guerin says at paragraphs 37 to 40 of the same affidavit as follows:
37. [Y] is also happy and settled in the arrangements, although Ms Ahern and I have yet to agree upon her secondary schooling arrangements.
38. [Y] and [X] are very different personalities and have very different needs and interests. [Y] is far more competent in developing social relationships and having close friends than [X]. [Y] makes friends easily. [Y] is artistic and creative enjoying drawing, painting and making things whereas [Y] enjoys being with friends. She is a dedicated student achieving about average results. She has been studying dance for the last 3 years. She loves playing her recorder and performing for an audience. [Y] loves taking care of our pets and has a very strong desire to be a veterinary surgeon.
39. [Y] often expresses her desire to spend more time with me so we can do things together. She wants to have more mother / daughter time. She is rapidly approaching puberty and needs the support and guidance of her mother through this time of physical, social and emotional change and development.
40. [Y] has appeared to enjoy the time that she has with me that is not shared with her brother. I think both children enjoy time away from each other from time to time, which makes them appreciate each other all the more when they are together.
At paragraph 26 of her affidavit, Ms Ahern says on the same topic as follows:
During my first period of time with [Y] after the interim orders were made on 15 July 2008 she initiated a discussion with me about the arrangements as per the new orders. [Y] told me that she had expected that if [X]’s time with me was to increase, hers would too. She asked me why she and [X] had been treated differently. She said to me “Don’t I matter to mum as much as [X]? Why isn’t she listening to me too?” I assured her that the issue of her time with each of us would be dealt with at the final court hearing.
Then in re-examination the mother says:
“You were asked some questions about Mr. Laidler’s report and in particular [Y]’s reported comments to him. Mr. Laidler goes on in his report to talk about paragraph 8.6 where he recommends that the children do spend time in accordance with what they’ve said to him, “Because to do otherwise would risk further stress on the relationship of the parent who is perceived as being unfair.” You’ve been asked some questions about stresses in the relationship between you and [X] and between Mr M and [X]. What, if any, stress has there been in your relationship with [Y]?---Absolutely none, no.
You talked about when you were asked about dividing the children, having a different regime fro the two children, you thought that was a good you said because they’re changing?---Mm.
Just describe for his Honour if you could why you perceive that the different arrangement for [Y], that is five nights with you and nine with Ms Ahern, would better meet the emotional needs? Those needs I presume being different from those of [X]?---Yes, she enjoys being the household with Mr M and I as the only child if you like. She enjoys having our undivided attention. [Y] and I do special things on Thursday together, because Wednesday she goes dancing and I take her to that. But she has a great relationship with Mr M and she loves him, it’s so obvious. That’s not to say she doesn’t love Ms Ahern, but she has a different relationship with Mr M, from me obviously, and it’s a very loving one and I think it’s to be encouraged. It certainly nurtures her in a way I think she really needs at the moment. [X] loves Mr M too and they have a great relationship. There are stresses obviously, it’s family life and it’s a new family life for all of us.
In effect what you’re saying is [Y] has some one-on-one with you and Mr M without [X] around?---Yes, and she loves it.
Why is that more appropriate for her than it might be for [X]?---Somehow she needs it more. She responds more, she has even said so many times to both of us that she loves being there and just having – especially just time with me, she loves that. She likes being away from her brother on occasions, you know, it’s not like they’re separate. They have a lot to do with each other but she also enjoys time apart.”
As Mr. Dickson points out in submissions, the comment by Ms Ahern in paragraph 26 is made on the first weekend after the orders, and then there is nothing further said by Ms Ahern about [Y]’s views or purported unhappiness with the new regime after that first week.
Mr. Dickson further submitted that both parties accepted the benefits of some one on one time for [Y] and given the level of record keeping and detail into which Ms Ahern’s affidavit and diaries go, the court can safely assume that there would have been something said about any complaint or adverse comment made by [Y] about the regime between July and December. I think there is much force in counsel’s submission and I accept the mother’s evidence contained in her affidavit and repeated in re-examination as an accurate statement Ms Ahern’s views about the regime from July to December.
There is no doubt that there is conflict between these parties. The Applicant at times placed the blame squarely with the Respondent and on other occasions, denied that the conflict was Ms Guerin’s fault. What is abundantly clear is that the parties were in a constant state of disagreement and that resulted in considerable stress to the children. What is very difficult to understand in this regard is that the Applicant refused to attend mediation or family therapy as suggested by the mother and despite the fact that she was given every opportunity to explain why she had failed to attend she was unable to give any logical explanation.
Further, the stress caused to the children could only have been added to by the Applicant involving them in the proceedings, particularly [X]. The evidence given by the Applicant on this topic was very unconvincing. She initially denied that she discussed the court proceedings with the children. She then at a later stage said she had discussed the timetable of the proceedings but not the detail with [X]. In response to further questioning she said that she had discussed with [X] that the court proceedings were to be issued and that [X] had asked her to bring the court proceedings in the first place. She further stated that “[X] knew that I had discussed the possibility of taking his mother to court with him”. Finally the Applicant conceded that the mother did not discuss the court proceedings with the children. The Applicant’s behaviour with respect to the issue of the court proceedings displays a complete lack of insight into the children’s needs and could only have added to the pressure that they felt under. Both parties are critical of the other for not supporting their relationship with the children. It is clear that [X] in particular feels uncomfortable at times with Mr M. However, I was impressed with Mr. M as a witness. I found him to be truthful. He admitted that he had lost his temper with Ms Ahern in front of the children when he confronted Ms Ahern at the location of the new house they were building. He conceded that he had spoken to Ms Ahern in a loud and angry manner saying “What are you doing here? You shouldn’t be here.” When asked why he was annoyed he responded “I was annoyed that Ms Ahern had the audacity to think that she could spy on the house, where it was, she had no reason to go there, none whatsoever.” He otherwise said he does not speak in derogatory terms about Ms Ahern and is sensitive to the fact that she is the children’s parent. I should also say that Ms Ahern’s conduct in going to the house on this occasion was a fairly provocative one in the circumstances. Indeed I had the impression that Ms Ahern is insensitive to the fact that she invades the space of the mother’s household unnecessarily. On the occasion of the children’s play she attended on Wednesday night, when she knew or should have known the mother would be attending. She also attended on the Friday night when the children were with her.
However what is much more concerning is Ms Ahern’s undermining of the mother’s position with [X]. Ms Ahern said in paragraph 8 of her second affidavit:
Twice in April 2008 and once in May 2008, [X] initiated long conversations with me regarding whether or not he should return to his mother as per the provisions of the existing court orders. He told me that he felt “stressed” and “out of control” at Ms Guerin’s house and was clearly upset. I left the decision to him and told him I would support the decision he made. On all occasions he returned to Ms Guerin as normal. I raised this matter in an email that I sent to Ms Guerin on 16 April 2008. Annexed to this my affidavit and market with the letters “JMA1” is a true copy of that email.
Then when questioned whether it was supportive of her mother’s role to say to the child I’ll leave it up to you, again Ms Ahern seemed to lack a basic understanding of what was an appropriate way to discuss the issue in a manner that was supportive of the mother’s role. The final matter that reflects poorly on the Applicant is the fact that it was necessary for the Respondent mother to institute proceedings in March of 2008 to enable the children to attend her wedding. I did not believe the Applicant when she said she had intended to allow the children to go. Again it was illustrative of the Applicant’s propensity to place her own needs before those of the children.
Both parties gave evidence as to why they wanted the children to attend specific schools. What became evident is that the Applicant signed an enrolment application to the [B] College in 2001. The Applicant said she was a lapsed Christian at the time she signed the forms and that she was no longer a Christian and that was one of the reasons why the children should not attend that school. She also suggested that she would face difficulties within the school because of her transgender state. This seems to say more about the Applicant’s needs than the children’s leaving aside the lack of evidence that the Christian school is likely to be less tolerant than the school that was
Ms Ahern’s preference. It was also the mother’s evidence that it was not until after the purchase of the land at [B] in October 2007 that the Applicant made it clear that [B] was not appropriate from her point of view. Further it was the mother’s evidence that she was prepared to pay all of the fees for [Y] to attend [B].
I am required to consider that each of the children spend equal time with each parent where an order provides as here that the parents have shared parental responsibility. I am required to consider whether that is in the best interests of the children. In circumstances where the parties agree that [X] will live in an equal shared regime I am satisfied that in [Y]’s best interests to continue the current order that allows [Y] to spend 9 nights out of 14 with her mother. I am satisfied that accords with the views expressed by the child to her mother between July and December 2008. [Y] is 11 years of age and at the time she expressed her preference for equal time with each parent to the counsellor she did so to sort out her parent’s problem and to be fair to each of them. I have already indicated that I believed what the mother told me about [Y]’s views at the time between July and December and I am comforted in that determination by what the counsellor said about not being surprised if that were the case.
There is no doubt that both children love and are loved by their parents and each parent has a good relationship with each child. I have some concerns about the relationship that Mr M has with [X], but I am satisfied that he will do all he can to foster his relationship with [X] and the relationship [X] and [Y] have with Ms Ahern. While I have already indicated that I do not accept the allegations made by
Ms Ahern that the mother has tried to minimise the relationship
Ms Ahern has with the children. I do have some concerns about
Ms Ahern’s willingness and ability to encourage the children’s relationship with their mother. The difficulties with the children attending the wedding, the refusal to engage in therapy or mediation, the involvement of the children in the proceedings as well as
Ms Ahern’s attempts to deal with [X]’s issues with respect to his mother are all indicative of a reluctance to facilitate the children’s relationship with their mother. They are also indicative of the Applicant’s tendency to place her own needs ahead of the children’s and demonstrate a lack of insight into the children’s emotional needs. For all of these reasons, I propose to make orders for children’s living arrangements in accordance with the mother’s application.
In determining the school [Y] should attend I will need to take into account that she will be in her mother’s household and travelling to school from that household for 7 of the 10 school days. I am aware that [Y] told the counsellor that she would probably prefer to go to secondary school in [E] and that was her preference because that was where the friends from her current school would most likely attend.
I also accept the mother’s evidence that the Applicant only indicated that she would not agree to either of the schools in the [B] area after she purchased the property in [B] in October 2007. While this is a finely balanced issue and in some respects it would have been better to defer the determination of which school [Y] attends until the end of 2009 I would have no confidence that the parties would be able to reach any agreement on the subject having regard to the history of the matter and their inability to reach agreement in the past. In all the circumstances, and having regard to the fact that the mother is prepared to pay the costs of the private education I am satisfied that it is in [Y]’s best interests to attend the [B] College in the [B] area. This school was originally agreed upon by both parents and as I have already said, I do not accept the reasons proffered by the Applicant for her change of view having any great weight. There is certainly no evidence that there will be any greater intolerance towards him/her at that school than elsewhere. The fact that [Y] will be attending a different school to that of her brother, I suspect is not a matter of great significance as in my view it is unlikely that they would spend a great deal of time with each other at school. Further, while she would be in a position of being forced to make new friends at the [B] or [B] school, many of the other pupils she starts with will be in a similar position. The positive advantage of [B] or [B] is that she will have a much reduced travel time and would be living in the same area as most of her fellow pupils. Accordingly, I propose to make the orders sought by the mother with respect to the schooling issue as they will best reflect [Y]’s best interests.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Anthony Vaughan
Date: 24 December 2008
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