Avery and Shunpike
[2010] FMCAfam 1131
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AVERY & SHUNPIKE | [2010] FMCAfam 1131 |
| FAMILY LAW – Parenting – long history of high conflict – children aged 10 – live with dispute became spend time with dispute – issue in relation to parental responsibility. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAC |
| Applicant: | MR AVERY |
| Respondent: | MS SHUNPIKE |
| File Number: | PAC 144 of 2007 |
| Judgment of: | Sexton FM |
| Hearing dates: | 2 & 3 August 2010 |
| Date of Last Submission: | 3 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 14 October 2010 |
REPRESENTATION
| Applicant: | Self-represented |
| Counsel for the Respondent: | Ms Winfield |
| Solicitors for the Respondent: | B Legal |
| Counsel for the Independent Children’s Lawyer: | Mr Cooke |
| Solicitors for the Independent Children’s Lawyer: | S P Nasti & Co Solicitors |
ORDERS
THE COURT ORDERS THAT:
All existing parenting orders be discharged.
The children, [X] born in 1999 and [Y] born in 2000, live with the Mother.
The children spend time with the father:
(a)During school terms:
(i)On each alternate weekend commencing on the first weekend of each school term from Friday after school until Sunday evening at 7.30 p.m., when the Father will ensure the children have had dinner before their return, on condition that if the Father is working on the Sunday, he notify the Mother as soon as practicable in advance of the weekend, and return the children to the Mother at 10.00 a.m. on the Sunday or before he starts work, whichever is the later;
(ii)In the event the Father undertakes to stop working on a Monday morning for at least one school term, such that he is available to prepare the children for school and deliver them to school on a Monday morning, the Father give the Mother 14 days notice of such undertaking, and upon the expiry of that 14 days, the children’s alternate weekend time with the Father extend to Monday morning before school;
(iii)In the event the Father breaches this undertaking, or at any time the Father re-commences work before school on a Monday morning, alternate weekend time will again conclude on Sunday evening at 7.30 p.m.;
(iv)If one of these weekends includes a Monday public holiday, in the event the Father gives the Mother at least 7 days notice of his personal availability to care for the children on the Sunday and Monday of that weekend, the children remain with the Father until 6.00 p.m. on the Monday evening; and
(v)In the event the Father will be unavailable to care for the children on any weekend, the Father give the Mother at least 14 days notice of his unavailability, unless an emergency causes a shorter notice period, and the children remain with the Mother for that weekend.
(b)During school holidays:
(i)
For the first half of each school holiday period commencing after school on the last day of the school term and concluding at 5.00 p.m. on the middle Saturday of the holidays in the event of an even number of weeks and
5.00 p.m. on the middle Wednesday of the Holidays in the event of an odd number of weeks; and
(ii)In the event the Father will be unavailable to care for the children during any school holiday period, the Father give the Mother at least 14 days notice of his unavailability, unless an emergency causes a shorter notice period, and the children remain with the Mother when the Father is unavailable.
(c)At other times:
(i)On the first day of Islamic Feasts of Eid El-Fitr and Eid El-Adha from 10.00 a.m. to 4.00 p.m. in odd numbered years and the second day of such feasts in even numbered years;
(ii)The children’s time with the Father be suspended from 10.00 a.m. to 4.00 p.m. on the first day of the Islamic Feasts of Eid El-Fitr and Eid El-Adha in even numbered years and on the second day of such feasts in odd numbered years;
(iii)The Feasts of Eid El-Fitr and Eid El-Adha shall be as proclaimed by the Suburb B Mosque; and
(iv)At any other time by agreement.
The Mother ensure the children have all suitable clothes and equipment, including books, ready for the children to take with them on the Friday they are to be with the Father when the period concludes on a school morning, and the Father ensure the children attend school on any school morning they are with him, with the said items.
The Father ensure the children’s clothes are clean and the children have suitable sustenance for the school day.
Telephone communication
The children have telephone communication with the Father at any reasonable time and the Mother encourage and facilitate such communication.
In the event the Father wishes to speak to either child by telephone, the Father advise the Mother by SMS and the Mother facilitate that child’s telephone call to the Father.
Communication between the parties
Until otherwise agreed between the parties at counselling, the parties communicate by SMS, email or letter, except in an emergency when they will use the telephone.
Changeovers
When changeover does not occur at school, changeover occur at Meeting Place A, Suburb A when the following shall occur:
(a)The parties exchange the children in the absence of any other person;
(b)Each party ensure no other person accompanying that party to changeovers is visible at any time to the other party;
(c)Each party be restrained from making any negative remark or using any negative gesture towards the other party;
(d)Each party encourage the children to wave to the other party as they leave;
(e)The person collecting the children remain inside Meeting Place A until the other party has left the carpark; and
(f)The person delivering the children leave the vicinity of Meeting Place A immediately after delivering the children.
Each party use the names [Y] and [X] at all times and for all purposes, and neither party change the names of either child without the prior written consent of the other.
Parental responsibility
Except as otherwise provided, the Mother have sole parental responsibility for the children on condition that:
(a)Except in an emergency, the Mother notify the Father by email or by letter, at least 1 month prior to making any decision about either child relating to schooling, health, change of residential address;
(b)The Mother advise the Father of her proposed decision, with detailed reasons for her proposal; and
(c)The Father respond to the Mother’s proposal within 14 days of receipt, and the Mother have regard to the Father’s views before making the decision.
International travel
Each party be restrained from removing and/or causing or allowing the children [X](aka [X]) born in 1999 and [Y](aka [Y]) born in 2000 to be removed from the Commonwealth of Australia, unless otherwise agreed by the parties in writing 6 weeks prior to departure.
Until each child attains the age of 18 years, the Australian Federal Police place the names of the children on the airport watch list in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the watch list unless the Court makes a further order.
The Respondent Mother forthwith surrender to the Registrar of this Court any passport that she holds for the children.
Interstate travel
Each party be restrained from removing the children from New South Wales without 14 days prior notice to the other providing details of the destination including contact details to enable the other party to contact the children while they are away.
Restraints
Each party be restrained from using physical punishment on the children at any time or permitting any other person from doing so.
Each party be restrained from making any negative comment about the other, to or in the presence of the children or allowing any other person from doing so.
Each party be restrained from attending the children’s school such as to interfere with the children’s usual school day or with changeover.
Information exchange
Each party keep the other informed as to his/her residential address, residential telephone number and mobile telephone number and to advise the other within 48 hours of any change of address or telephone number.
Each party notify the other as soon as practicable of any hospitalisation or other serious medical event regarding either child.
Each party notify the other regarding any prescribed medication and administer such medication in accordance with medical advice, and notify the other parent of when the last dosage of medication was given.
These Orders be authority for the children’s school(s) to provide to the Father at his expense, copies of reports, school photographs, notes, newsletters, details of parent-teacher interviews, and parent-student functions relating to the children.
Counselling
The parties attend counselling in the Suburb A region as arranged by the Independent Children’s Lawyer in accordance with Dr V’s recommendations that:
(a)The counsellors have an understanding of the Pakistani culture and language;
(b)The Mother, the Mother’s husband and (if the counsellor considers necessary) the children attend therapy as recommended in Dr V’s report; and
(c)The Father, the Father’s wife and the children attend therapy to address in particular, the difficulties in the relationships between the children and the Father’s wife.
The Independent Children’s Lawyer provide a sealed copy of these Orders and a copy of Dr V’s report to the counsellors referred to in Order (23).
Upon compliance with Order (23) the appointment of the Independent Children’s Lawyer be discharged.
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 Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
IT IS NOTED that publication of this judgment under the pseudonym Avery & Shunpike is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 144 of 2007
| MR AVERY |
Applicant
And
| MS SHUNPIKE |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for [X], aged nearly 11 years and [Y], aged 10 years. After a relationship of approximately 3 years, the parties separated in February 2002. Despite the length of time since the parties separated, their relationship is characterised by a lack of respect and high level of distrust. The Mother’s husband, Mr N alleges the Father is dishonest and sees no place for him in the children’s lives. For his part, the Father says the Mother’s happy household is a “sham”.
In September 2008, the Court ordered the parties to attend counselling at Unifam to help improve their communication and co-parenting skills. Nothing was achieved. The Mother attended but the Father found the process frustrating and was not prepared to miss work to attend appointments.
The Father was unrepresented at hearing. The Mother and the Independent Children’s Lawyer were represented by counsel. The Father did not file any material after September 2008.
Current arrangements
The children live with the Mother and spend time with the Father on alternate weekends from after school Friday until Monday mornings as well as during half school holiday periods. When not at school, changeovers occur at Suburb A Police Station. Until March 2010, the children’s alternate weekend time with the Father finished on a Sunday evening. On 31 March 2010, the Court extended the time until Monday mornings before school.
Each party’s proposal
At the beginning of the hearing, the Father sought equal shared parental responsibility, an equal time arrangement for the children on a week about basis, or a year about basis, as well as half school holidays. He said he needed equal time to establish a strong alternative home for the children. At a later point in the hearing, the Father said the children should live substantially in foster care and at other times spend equal time with each party.
After hearing from the expert, Dr V, the Father accepted Dr V’s evidence that equal time would be unsuitable for the children given the differences in the two households and the difficulties the children would experience moving between households in an atmosphere of high tension. Dr V said it would be hard for the children to cope with spending school days with the Father given the pressure on them academically in the Mother’s home. To his credit, the Father then changed his position seeking alternate weekends from Friday until Monday as well as half school holidays.
The Mother also changed her position at hearing. She seeks sole parental responsibility, alternate weekends for no longer than after school Friday to Sunday evenings, but preferably from Friday to Saturday, as well as half school holidays. The Mother claims not to understand why the Father wants additional time with the children because, even under the present arrangements, she says he has often sent the children home early.
The question for the Court became whether the children should remain with the Father until Monday morning on alternate weekends, and whether the parties should have equal shared parental responsibility or whether the Mother should have sole parental responsibility.
Dr V prepared two reports for the Court, the first in August 2008 and the second in March 2010. In her second report, she says:[1]
There appears to have been little movement in the high level of tension that exists between the parties and they are still deeply mistrustful of each other. In spite of the many years that have passed since their separation, the parties continue to use the police station as the handover point on Sunday evenings and they are intolerant to even being in the same precincts as each other. There seems little likelihood that this will change in the future.
[1] At paragraph 33 of Dr V.’s Report dated March 2010.
In Dr V’s view, the children’s primary attachment is to their mother and she is the primary source of their emotional support. They should therefore live primarily with the Mother. Dr V recommends the children spend alternate weekends with the Father and half school holidays. She strongly recommends changeovers occur at the children’s school to minimise the children’s exposure to the high level conflict between the parties.
Background
The Father was an Australian citizen and had lived in Australia for 12 years when he was introduced to the Mother in Pakistan by family members. The Mother migrated to Australia in 1999. The parties were married in December 1998. [X] was born in 1999 and [Y] was born in 2000. The parties separated in 2002. The Mother had always assumed primary responsibility for the care of the children, and they remained in her care at separation. The Mother became an Australian citizen in 2004. The parties were divorced under Pakistani law on 8 December 2003 and under Australian law in late 2004.
The Father remarried Ms Avery (now Avery) in Pakistan in 2003. They have two children, [S], now 6 and [K], now 2 years of age.
In 2003, the Mother commenced a relationship with her present partner Mr N. They married under Islamic law in 2003. Together they have two children, [H], now 6 and [M], now 5 years of age.
The Court first made parenting orders in early 2005 providing for the children to live with the Mother and spend time with the Father. In early 2007, the Father instituted proceedings for a recovery order and since then, the children have for the most part, spent half holidays and alternate weekends from Friday to Sunday with the Father. As already noted, the alternate weekend time was extended to Monday morning in March this year.
Each party’s current circumstances
The Father, aged 60 years, works in the customer service industry. His hours of work are generally 5.00 a.m. until 2.30 p.m. Monday to Friday, but sometimes he works on a Sunday for a shorter period. The Father says he tries to be available when the children are in his care. He lives with his wife Ms Avery, aged 29 years, and their two children, in a property at Suburb B. As I understand it from the evidence, Ms Avery attends English classes, but otherwise cares for the children full time.
The Mother, aged 36 years, lives with Mr N, and their two daughters, as well as the subject children. They live in a 4 bedroom house in Suburb A. Neither the Mother nor Mr N work outside the home. The Mother says she plans to undertake a university course in 2011.
The children attend the [omitted] School. [X] is in Year 5 and [Y] in Year 4. The Father’s child [S] attends the same school and the Father lives close by. The Mother intends to move the children to a public school next year, because she is unable to meet the fees at their present school.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. 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 it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The primary considerations
The benefit to the children of having a meaningful relationship with both of the children’s parents.
It is common ground that the children enjoy a close and loving relationship with the Mother, with whom they have always lived, and that they have a close bond with the Father.
On each party’s proposal, the children would continue to benefit from their close relationship with each parent, if Court orders were followed. However, the evidence discloses that the children are being psychologically affected by the intractable conflict between the parties which has continued for many years. In Dr V’s view, the children’s mental health is at risk as a result. While it is not possible to predict precisely how this is likely to play out in terms of each child’s ongoing relationship with each party, I am satisfied the children are at risk of losing the benefits of having both parents meaningfully in their lives in the longer term, if the parties do not urgently address their differences.
I give some weight to my findings under this factor. I have therefore made an order for the parties and their respective partners to attend counselling in a culturally sensitive setting, and for the children to participate in that counselling. The purpose of the counselling is to assist the parties to become more focussed on the needs of the children, and less focussed on the ongoing dispute between them.
The need to protect the children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
As already noted, the parties have a highly acrimonious relationship. They still cannot manage civilised changeovers away from a police station. I agree with Dr V’s view that, “there seems little likelihood that this will change in the future.”
Dr V assesses the children as showing signs that they are burdened by the family disputes, which is likely to pose a risk to their short and long term mental health.[2] She observed that [Y] in particular, is under considerable distress, trying to please ‘two fathers’. I accept her evidence.
[2] At paragraph 39 of Dr V.’s Report dated March 2010.
In the affidavits sworn 2-3 years ago, each party makes allegations about threats of violence, harassment and abuse by the other party or by members of the other party’s household. The Father claims the Mother once tried to poison him. The Mother claims the Father and his brother assaulted Mr N in front of the children at changeover in 2004. However, neither party adduces evidence of current threats, harassment or abuse, though each complain about serious denigration by the other’s household. More recently, the Mother alleges that the children, [Y] in particular, complains about being smacked by the Father’s wife. The Father does not deny he and his wife have smacked the children. In cross examination, the Father said he would tell his wife that the smacking must stop immediately. I accept Dr V’s evidence that physical punishment of the children will not be effective as a disciplinary measure, and that it should stop. I have ordered accordingly.
I give significant weight to Dr V’s view that the children are at risk of psychological harm if they continue to be exposed to the ongoing conflict between the parties.
The additional considerations
Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the children’s views.
[X] told Dr V she would like the Mother to look after her if she were unwell. [Y] said he would prefer to live with the Mother. When with the Mother, [Y] says “there is more space in the back yard to play my favourite games like cricket.” However, if he were sick he would like the Mother and the Father to look after him.[3] I accept Dr V’s interpretation that the children are primarily attached to the Mother and look to her as their primary source of emotional comfort. Neither child expressed a view as to the amount of time they would like to spend with the Father.
[3] At paragraph 28 of Dr V.’s Report dated March 2010.
Given the dispute concerns parental responsibility and the amount of time the children spend with the Father, I give these findings limited weight.
The nature of the relationship of the children with each of the children’s parents and other persons (including any grandparent or other relative of the children).
The children refer to the adults in each household as “mum” and “dad”. As already noted, the children have close relationships with each parent. [X] described the Mother as “fun and kind,” as “someone who plays games” and as someone who “cooks my favourite foods.” [Y] describes her as “nice and polite.” [X] describes the Father as someone who “gives us money and we buy lollies.” [Y] says “he buys us lots of stuff” and has taught him about cricket.
The Mother deposes to Mr N being a devoted father figure. He has provided for them financially, assists them academically and participates in a range of outdoor activities with them, particularly [Y]. The evidence of Dr V and the Mother discloses good relationships between each child and Mr N. [X] describes Mr N as someone who “gives me money and I save it.” [Y] says of him “I go to work with him and we fix stuff. I like fixing stuff.”
The nature of each child’s relationship with the Father’s wife, Ms Avery, is more difficult to assess from the evidence. Ms Avery did not attend the family report interviews with Dr V in 2010. However, at interview in 2008, Ms Avery told Dr V she believed she related well to the children, particularly [X]. [X] makes no complaint about Ms Avery to Dr V in 2010. She describes Ms Avery as “kind and sometimes she plays games with us.” The Mother deposes to [X] relating quite well to Ms Avery. The Mother says [Y] does not get on well with Ms Avery. [Y] tells Dr V that Ms Avery is “nice but sometimes she hits me if we are arguing.” There is no dispute that Ms Avery smacked [Y] on the back on at least one occasion and perhaps at other times. The Father says at times [Y] has been very rude to his wife. I find it likely [X] has a comfortable relationship with Ms Avery, but that [Y] is much happier in his Father’s household when the Father is present.
I have regard to these findings in reaching my decision.
The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent.
This is a significant issue in this case. As already noted, neither party emotionally supports the children’s relationships with the other party or with the other party’s partner, because each party has such a low opinion of the other. In addition, the Father is highly critical of Mr N who he believes is controlling of the children and because unemployed, provides a poor role model to the children.
The Father has a negative view of the Mother for undermining the children’s relationship with him and concedes that the children are well aware of his opinion.
I find that the Mother wishes to limit as far as the Court will permit, the children’s time with the Father. She sees minimal value for them in spending time with him. The Mother’s animosity towards the Father prevents her from allowing the children to openly acknowledge him if they see him in a public place. Despite [Y]’s love of cricket, the Mother refused the Father’s request to take [Y] to a cricket match while his brother was visiting from overseas.
Dr V believes there is “a strong tone of intolerance” in the Mother’s household of the Father, particularly evident in Mr N’s disclosures. I accept her view that Mr N does not support the Father’s role as a parent and shows no insight into the damaging effects of his attitude on the children’s emotional development.
I give considerable weight to my findings under this factor.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents, or any other child, or other person (including any grandparent or other relative of the children) with whom he or she has been living.
Given the parameters of the dispute, this factor does not apply.
The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
This factor does not apply.
The capacity of each of the children’s parents and any other person (including grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs
The Father frankly admits he cannot clean or wash or cook and his wife must undertake those tasks for the children. The Mother undertakes these tasks for the children in her household. The Mother alleges that the Father gives the children “junk” food, and that he fails to ensure they are in clean and climate appropriate clothing. During the last Christmas holidays, the Father returned the children to the Mother during his time with them, because his wife was away. It seems clear that if the Father’s wife were absent for any reason, the Father would not have the capacity to meet the children’s day to day physical needs.
However, at another level, the Father provides the children with opportunities to engage in a range of recreational activities. He and his wife have taken the children on a holiday to the snow, and on excursions to the zoo, the Aquarium and Luna park. He has taken them to the movies. He plays cricket with them.
In relation to discipline, the Father acknowledged that the children were unhappy about being smacked by his wife. While not conceding that smacking the children was inappropriate, he readily accepted the need to stop his wife using physical discipline on the children. The Father acknowledged his brother smacking [Y] for hitting his son, and imposing physical discipline when he believed it appropriate. I accept Dr V’s view that physical punishment is not constructive and should not be imposed in either household. I have ordered accordingly.
The Mother sees the Father as a “good time Dad” who focuses on playing with the children and giving them junk food to eat, rather than ensuring they do their homework and eat appropriately. The Mother says [Y] in particular, spends too much time on the computer while the Father works or is too tired after work to play with him. She says that [Y] complains of boredom in the Father’s home.
The Mother feels that she carries the whole responsibility for the children’s schooling and overall welfare, and that Mr N has shown far superior skills as a ‘father’ than the Father. It is common ground that Mr N is focussed on the children’s school work, believing both are capable of entering professions requiring high academic achievement. He is annoyed by the Father’s seeming indifference to the children’s academic studies.
The Father believes the Mother’s household is an unhappy one. He claims the Mother and Mr N deprive the children of outside activities by focussing solely on their school work. The Mother refused his offer of tickets to take the children to the cinema. The Father says [X] woke him one evening at midnight because of stress about her school work. Dr V reports that the Father observes the children to be more relaxed when they are with him and not “under the watchful eye of their mother”.[4] He believes that one day, they will rebel in the Mother’s household, and turn to him.
[4] At paragraph 8 of Dr V.’s Report dated March 2010.
The Mother denies that the children are under pressure in her home. She says the children do their homework between 5-7 p.m. each evening, then relax before bed. She says they are taken fishing and swimming, play sports and have plenty of recreation. She is presently investigating the possibility of [Y] playing team soccer.
Dr V believes the Father provides a more relaxed home environment than the Mother, less pressured in terms of expectations. While I accept her view that there are high expectations on the children in the Mother’s household, particularly from Mr N, I accept the Mother’s evidence that she accepts the children will make up their own minds about their future careers and that she would not want the children to feel pushed. I also accept that because the Father’s focus is different, she feels solely responsible for providing the children with support with their schooling.
I find the significant issue in terms of parental capacity, is each party’s inability or unwillingness to accept the importance of the children’s relationship with the other party on their long term emotional development. I find that each party demonstrates an inadequate capacity to meet the children’s emotional needs in this regard.
I accept Dr V’s opinion that the two households are very different. I accept her view that the children need the two different environments, but they also need stability and continuity.
I have had careful regard to my findings under this factor.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant.
Each party has a Pakistani background, as do their partners. I find no issues arise under this factor.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents.
It is beyond dispute that the Mother, later with significant support from Mr N, has provided the children with the bulk of their needs since the parties separated. Initially, because of the Mother’s fear of what the Father might do at separation, the children saw very little of their Father for well over 12 months. Although from at least early 2007, the children have, for the most part, spent regular time with the Father on alternate weekends and during school holidays, I am satisfied the Mother, with Mr N, has continued to carry the major responsibility for all aspects of the children’s care.
I find the Father has demonstrated a poor attitude to his responsibilities as a parent because:
i)The Father has made limited contributions to the children’s financial support since separation, and owes over $20,000 in child support arrears. The Child Support Agency has imposed on him a Departure Prohibition Order as a result. The Father told the Court he had made an offer to the Mother to pay half the children’s school fees, but because she would not accept the conditions of his offer, he did not intend to assist her. This is despite his evidence that he opposed the Mother removing the children from the [omitted] School because of her inability to meet the school fees. The Father appeared untroubled by his failure to contribute financially.
ii)The Father has not always made appropriate arrangements for the children when he has been unavailable to care for them during his time periods. In particular, in the long holidays last year, he returned the children to the Mother because his wife was away and he was not prepared to cook, clean or wash. He said he believes it is better for the Mother to care for the children than a stranger. However, the Father’s decision disrupted the Mother’s plans to travel over that period, and the Father gave the Mother no additional financial support to accommodate the new arrangement. The Father said “If they [the children] unhappy, they should go home.” The Father says he went to Pakistan over Christmas at a cost of $1600, and spent $10,000 on his teeth. He says “I come first all the time. If I’m not healthy, nothing will work.”
iii)The Father takes no responsibility for his ignorance about the children’s schooling despite the order of September 2008 providing for him to obtain copies of all relevant reports and notices from the children’s school. He does not know which class [Y] is in, or how either child is progressing. He has never requested copies of their school reports from the school, “because the Mother should give them to me.” The Father has never attended a parent/teacher night.
iv)The Father has sent the children to school in the wrong uniforms, and in unwashed uniforms without regard to the embarrassment caused to the children. He said he was not prepared to buy the children additional uniforms.
As already noted under other factors, I find that neither party has shown insight into the need to emotionally support the children’s relationships with the other party and their families. I accept Dr V’s opinion that the children are burdened by the parental conflict and are struggling to remain loyal to each parent, which is emotionally damaging to them.
I give considerable weight to my findings under this factor.
Any family violence involving the children or a member of the children’s family.
I have nothing to add under this factor.
Any family violence order that applies to the children or a member of the children’s family, if the order is a final order or, the making of the order was contested.
There was a Final Apprehended Violence Order against the Father for the protection of the Mother for a period of 2 years from February 2003 which has now expired. In August 2005 Mr N obtained an interim Apprehended Violence Order against the Father. It is not evident on the material whether that order was ever made final.
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 children.
I have nothing to add under this factor.
Any other fact or circumstance that the court thinks is relevant.
The Father’s availability to spend time with the children is a significant problem in this case. The Father works in the customer service industry and is not always available to spend time with the children in accordance with the present orders. [Y] does not have a good relationship with Ms Avery, who is left to care for the children, with her own two children, when the Father is working. I find it would help the children for the Father to be present for most if not all the time the children are in his care, particularly given the ages of his two youngest children.
Since March 2010, Monday mornings have been particularly problematic. The Father leaves for work at 5.00 a.m. The Father says his wife takes the children to school in a taxi because she does not yet have a driver’s licence. Although the [omitted] school is not located far from the Father’s residence, there is a considerable burden on the Father’s wife to have the children ready for school on alternate Monday mornings. The children are given money for lunch, rather than a packed lunch, and as a result, the Mother says they have only chips and soft drinks on those Mondays.
The Mother says she would like the children home on a Sunday evening to ensure their bags are appropriately packed, and their uniforms clean for school.
The extent to which each of the children’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 children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children and to spend time with the children and to communicate with the children; and has facilitated, or failed to facilitate, the other parent participating in decisions about major long term issues in relation to the children and spending time with the children and communicating with the children; and has fulfilled, or failed to fulfil, the parent’s obligation to maintain the children.
The parties have failed to address the hostility between them despite the eight years since separation, and failed to engage with Unifam’s Keeping Contact programme as ordered. The hostility is so extreme that the Mother even resisted being in the same precinct as the Father for the family report interviews in the middle of this year.
I have already addressed the difficulties this ongoing hostility causes the children in a practical as well as an emotional sense.
Parental responsibility
Parental responsibility relates to decision making and not to the amount of time a child will spend with each parent. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Section 65DAC applies whenever a parenting order provides for shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The Father seeks an order for equal shared parental responsibility. He complains that the Mother has made a number of unilateral decisions in the past about the children’s schooling, without reference to him. In addition she has changed the children’s residence without advising him.
At the outset of the hearing, the Mother also sought an order for equal shared parental responsibility, as long as she was able to select the children’s school. However, following Dr V’s evidence at hearing, the Mother sought an order for sole parental responsibility.
I have already made findings about the Mother’s unwillingness to support the Father’s role in the children’s lives. In such circumstances, it would seem important to ensure the Mother was required to make major decisions concerning the children, in consultation with the Father, to enhance his role in their lives.
However, Dr V says in her evaluation of the family, with which I agree, that a requirement for these parties to consult about anything would be entirely impracticable:[5]
The parties persist with their predisposition to find fault in each other’s parenting and the care each provides for the children. They accuse each other of not being responsive to the children’s needs and find it difficult to acknowledge the positive aspects of the other’s parenting. These are hardly conditions conducive to the assumption of joint responsibility in making decisions for the children and it is a situation that lends itself to parallel parenting where there is minimal need for contact between the parties thereby avoiding any direct communication and for protocols which avoid conflict or stress to be put in place.
[5]At paragraph 33 of Dr V.’s Report dated March 2010.
It is noteworthy that Dr V made a recommendation in 2008 for the parties to improve their communication, and if they were not successful, that a sole parental responsibility order would be inevitable. I have concluded that if the parties were to share equally in major decisions concerning the children, the children would suffer delays, confusion and uncertainty about what was likely to happen. I am not persuaded this would promote the best interests of these children. I am however, critical of the Mother for making decisions unilaterally in the past, and as submitted by counsel for the Independent Children’s Lawyer, I am satisfied it is important for the Father to have input into major decisions concerning the children. Nevertheless, I agree with
Dr V that the Mother must be given the authority to make the final decision when the parties do not reach agreement.
Conclusion
Although the parameters of the dispute are limited, the case is complex as a result of what Dr V refers to as “an uncompromising power struggle” between the parties since their separation. I accept her assessment in 2008 that:[6]
They have a deep mistrust and suspicion of each other’s motives and have a history of being unable to relate to each other in a child focussed way. This makes their capacity to engage in any meaningful communication about the children currently impossible.
[6] At paragraph 45 of Dr V.’s Report dated August 2008.
Dr V finds no improvement in this “power struggle” in her assessment in 2010 and it was evident at hearing, that the parties continue to favour a focus on their inter-parental conflict, than on the needs of the children.
The children’s exposure to this acrimonious relationship between the two households has made it hard for the children to move between them. At times, there have been practical difficulties with uniforms lunches and homework, and at other times, the children’s regularity of movement between the two homes has been disrupted by further disputes. It is noteworthy that [Y] presented to Dr V as “having flattened affect and his disclosures seemed almost automatic”.
Since March 2010, the children have remained with the Father until Monday morning. The Mother says it has never worked. She says the children would rather return home no later than the Sunday evening to have her ensure they are appropriately prepared for school on a Monday morning. She says the children complain of the Father’s wife becoming angry with the stress of organising 4 children on a Monday morning, in the absence of the Father. I have no difficulty in accepting that this is likely. As already noted, the Mother also says the children have arrived at school in dirty clothing on a Monday. For his part, the Father is not prepared to give up work on a Monday morning, which he says is the busiest morning of the week, yet wants the children to spend more time in his care. I agree with Dr V that “he perceives himself as needing to counterbalance the negative effects in the Mother’s household by maximizing his time with the children” so if necessary, he can provide an alternative home for the children.[7]
[7]At paragraph 37 of Dr V.’s Report dated March 2010.
The Mother’s counsel submits that the practical considerations should prevail. The Father submits that the children need more time with him, and that given Mr N delivers the children to school from time to time, the Court should accept that his wife can do the same. Dr V favours the children remaining with the Father until the Monday morning, to avoid the parties having direct contact at changeover. The Independent Children’s Lawyer supports Dr V’s recommendation. However, counsel submits the children should be returned home earlier on long weekends if the Father is working on the Sunday.
I accept Dr V’s view that the children’s relationship with the Father is important in terms of their emerging sense of identity. While I am satisfied the children need as much time as possible with the Father on the alternate weekends, and do not propose to reduce the period to a Saturday evening, as preferred by the Mother, I have decided that if the Father is working on a Monday morning, for their comfort and convenience, the children should return to the Mother on a Sunday evening after dinner. If the Father decides to stop working on a Monday morning over a prolonged period, the children will remain with him until the Monday morning. He will take them to school. The children will not be required to chop and change arrangements on a weekend. The Father must undertake to be available on a Monday morning for a full term before any change will occur. I make this decision mindful of Dr V’s view that the arrangements for the children should involve minimal contact of any kind between the parties to minimise the children’s exposure to the parents together.
In relation to changeovers, I accept the Father’s submission that Mr N should not attend with the Mother, as given the intense animosity between the two men, I am satisfied there is less likely to be conflict in his absence. I have imposed other conditions on the parties in an attempt to minimise the risk of conflict.
As already noted, I find the intense ongoing struggle between these two parties the most fundamental problem for the children. I am in no doubt that the children will have poorer social and academic outcomes than would otherwise be possible unless something is done to reduce the level of tension between them. I have therefore ordered the parties to attend counselling as soon as possible which will involve their partners and the children.
I gave consideration to the question of overseas travel for the children. The Father said he would like to take children to Canada in January 2012 or July 2011 for 2 weeks. The Mother opposes this idea because she does not trust the Father to care for them himself. At present, the Father tells the Court he has a Departure Prohibition Order imposed on him by the Child Support Agency which prevents his departure from Australia. Given the complexities of this case, I have decided that in the absence of agreement, each party will be required to make an application to the court before being permitted to travel with the children overseas, before the youngest child is 18.
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of [X] and [Y].
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Sexton FM
Date: 14 October 2010
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