Bagnell and Kadar (No. 2)

[2017] FamCA 998

FAMILY COURT OF AUSTRALIA

BAGNELL & KADAR (NO. 2) [2017] FamCA 998

FAMILY LAW – CHILDREN – Parental responsibility – Schooling – With whom a child lives – With whom a child spends time

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Bagnell

RESPONDENT: Mr Kadar

INDEPENDENT CHILDREN’S LAWYER: Ms McGregor

FILE NUMBER: PAC 617 of 2016

DATE DELIVERED: 4 December 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 4 December 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Kim Bolas Legal Group

SOLICITOR FOR THE RESPONDENT: Byles Anjos Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. Order 2 of the Orders made by Judge Newbrun on 18 November 2016 is amended as follows:

   2.That the parties have equal shared parental responsibility for the care welfare and development of the children save that the father has sole parental responsibility in relation to the education of B, born … 2013, and C, born … 2014 (the children).

   2A. In exercising sole parental responsibility regarding education the father is to keep the mother promptly informed of the enrolment details for each of the children and is to ensure that;

   (a)The school is authorised to contact the mother in relation to the children;

   (b)The school is asked to send copies of all notices and correspondence regarding the children to the mother; and

   (c)The mother is recorded as an alternate emergency contact for the children.

2. Order 4 is amended as follows:

   4.Until 26 January 2018 the children shall live in an equal time arrangement between their parents as agreed between their parents or failing agreement:

   (a)To live with her mother during school terms from the conclusion of school (or if not a school attendance day 3.00pm) Wednesday until the conclusion of school the following Wednesday to commence Wednesday 23 November 2016;

   (b)To live with her father at all other times during school terms; and

   (c)Each parent shall have the children in their care for one half of each school holiday period and absent agreement between the parents the father shall have the first half of each short New South Wales school holiday period.

3. New order:

   4A.From 5:30pm on 26 January 2018 the children shall live with the father and spend time with the mother as follows:

   (a)Each alternate weekend from 5:30pm Friday to 5:30pm Sunday commencing 2 February 2018.

   (b)On each of the children’s birthdays the other parent with whom the children are not living with shall have telephone contact with children between 6:30pm and 7:30pm.

   (c)Each parent shall have the children in their care for one half of each school holiday period and absent agreement between the parents the father shall have the first half of each short New South Wales school holiday period.

   (d)For one half of the Christmas school holidays as agreed and in default of agreement with the father for the first half in odd years and the second half in even years.

   5.Mother’s Day

   (a)If this day falls on a weekend where the children are not already spending time with the mother then the children will spend time with the mother from 5:30pm on the Friday to 5:30pm on the Sunday.

   8.Easter

   (a)The children shall spend Easter with the mother from 9am Good Friday until 5pm Easter Saturday in even numbered years and with the father from 5pm Easter Saturday to 9am Easter Monday, alternating each year. 

   9.Christmas

   (a)The children shall spend time with father from 3pm Christmas B until 12:30pm Boxing Day in odd numbered years.

   (b)The children shall spend time with the mother from 3pm Christmas B until 12:30pm Boxing Day in even numbered years.

4. Order 6 of the Orders made by Judge Newbrun is suspended.

5. Order 7 of the orders made by Judge Newbrun is suspended.

6. Unless otherwise agreed in writing, such agreement being able to be by text message, the changeover place for the children shall be at the McDonald’s restaurant G Town in New South Wales.

7. The matter be transferred to the Federal Circuit Court at Parramatta for further hearing on a date to be notified.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bagnell & Kadar (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: PAC 617 of 2016

Ms Bagnell

Applicant

And

Mr Kadar

Respondent

REASONS FOR JUDGMENT

1. In this matter final consent orders were made by Judge Newbrun at Parramatta on 18 November 2016.  They provided for equal shared parental responsibility and for each of the parents to have equal time with B, who was born in 2013, and C, who was born in 2014.  Subsequent to these orders, which were made when the parties both lived in Sydney, the mother moved to D Town from Sydney.  Despite this the parties continued with the week about arrangement.  In May of 2017 that arrangement came to an end when the father withheld the children on the basis of a question of whether or not there was sexual abuse at the hands of the mother’s new partner.

2. A recovery order issued on an ex parte basis (although there is a dispute as to whether or not the father was aware of those proceedings) in June 2017 which meant that he did not spend time with the children between June and August 2017. 

3. The matter came before this Court in August 2017 at which point each of the parties pointed to a question of risk in relation to the children.  The father pointed to a question of sexual risk on the part of the mother’s partner, and the mother pointed to a risk that the father would withhold the children.  Each of these matters was dealt with in the Reasons for Judgment which were given in August 2017 which identified that even taking the evidence at its highest from each of the parties there was no unacceptable risk in either household, neither from the mother’s now fiancée as to sex nor from the father as to withholding, and on that basis there was a return to a week about arrangement. 

4. The issue that has come before the Court today relates to B’s pending commencement of school.  The mother filed an application in a case prior to today seeking to end the week about arrangement on B commencing school.  While no date was specified within that application the timing of the application and its correlation with B turning five in May of next year meant that it was on the cards that that related to a suspension of the current arrangement from January 2018. 

5. The father, although late in filing his material, joined issue on that point specifying that the commencement of B at school should be in January 2018. 

6. Subsequently the mother in her case outline suggested that it should be in January 2019.  She suggested that she was caught by surprise or ambushed.  That cannot be the case.  The proceedings in relation to this matter were commenced by her application which was conceded to be drafted in vague terms.

7. Before me, the mother and father both accept that the school cut-off in New South Wales relevant to B is July 2018.  That is she will turn five before the cut-off date.  Neither party’s application suggests that there should be a separation of B and C.  The issues then come down to the question of the commencement of school and if school is to commence at any particular time then who will be the primary carer for the two children as given that the mother lives in D Town and the father lives in Sydney the 50/50 arrangement will no longer be able to continue. 

8. As to the commencement of school the parties agreed that the cut-off means that B can start school in January 2018.  As to whether or not this should occur, the father annexed correspondence from H Preschool which became part of exhibit ICL1, which showed that B has been participating in a transition to school program, has formed relationships with the educators at school and has formed friendships with the children that she would attend school with if she was to transition into kindergarten next year.  The mother’s material from the D Town preschool, which also formed a part of exhibit ICL1 showed a recommendation that B spend another year in preschool on the basis that the opinion was offered that it would benefit B although it was not explained why this conclusion has been reached. 

9. There is little information by which I am able to resolve this dispute between the parties.  It is essentially a matter for the exercise of parental responsibility.  Presently there is an order for equal shared parental responsibility.  In the absence of the ability of the parents to come to an agreement as to this essential point for B’s well-being it has become necessary to determine a different allocation of parental responsibility regarding schooling.  That is, it is necessary to depart from the current orders and from the presumption in favour of equal shared parental responsibility but only in respect of the education of the children.  That allocation of parental responsibility is in part dependent on who it is that the children will live with but also determines whether week about for each of the parents or primary care by one of the parents will commence in 2018 or 2019.  If the children are to live with the father school will commence in 2018 meaning there will be a transition to primary and secondary care for the children at that point.  If with the mother then school will commence in 2019 meaning that a week about arrangement can continue until that date. 

10. The key issue to determine the allocation of parental responsibility is the best interests of the children which is also determinative of what their living arrangements should be.   The protective issues that were raised by the parties were dealt with on the last occasion.  Either arrangement that is proposed from today will promote meaningful relationship between each parent and both the children via either a substantial and significant arrangement to spend time with each parent or an equal time arrangement.

11. The material before me does not allow me to discern a difference in relationship between each of the parents and the two children.  That is I am not able to assess that the father has a better relationship with the girls or the mother has a better relationship with the girls.  Of the mandatory considerations contained in s 60CC the key issue relates to the capacity of each of the parents. 

12. The relevant capacities can be broken down in this fashion.  The first is the capacity to promote a relationship with the other parent.  Despite the difficulties that each of the parents has encountered with the other generally they have been able to function on a week about arrangement.  It is notable that this arrangement failed for two reasons and the first was the identification of potential risk on the part of the father that demonstrated a reason why at that point he would not be supportive of the week about arrangement and secondly, because of the concerns on the part of the mother that the father would not comply with the orders which again demonstrated a reasonable basis not to be supportive of such an arrangement.  But for those matters it appears that the parties have been reasonably cooperative with each other in respect of fostering the relationship between the children and the other parent through their support of the week about arrangements.  There is some particular evidence as to this matter. 

13. The father annexed a large series of text messages between he and the mother.  These in general terms demonstrated reasonable communication by each of the parties and cooperation by each of the parties.  What they also showed was disclosure by the father to the mother of the treating arrangements and the schooling arrangements he was putting into place for the girls, especially C’s treatment and assessment for a chromosomal defect and for her being found to be within the autistic spectrum.  Those text messages demonstrated the father to be proactive in dealing with these matters and communicative with the mother and respectful in the communications with the mother about these matters. 

14. This flows into the second question of capacity.  The parties only recently discovered that C suffers from this chromosomal issue.  The father’s affidavit shows that he has taken the primary initiative for the support of C.  That is not to suggest that the mother has been inadequate in the way that she has cared for C but it is the father who has advanced the question of obtaining various forms of support for C, at least as set out in his affidavit material.  That includes setting up support through a psychologist, an occupational therapist, speech therapy, hearing and sight assessment and coordination of support through the NDIS.  He has also enrolled her in an autism spectrum support group and the day care that she is currently attending while in the care of her father has been progressing towards a grant application to provide additional support for C. 

15. The third issue going to capacity relates to the support of the father’s relationship between the girls and their older half-sisters who are the daughters of the mother and from a previous relationship.  They live in Sydney I am told, and while the mother criticised the father’s involvement with the sisters as somehow excluding her it appears to me that he has fostered appropriate relationships between the girls and their sisters from this prior relationship.  At the same time his evidence attests to him fostering relationships between the girls and their maternal cousins.  These are significant matters going towards the question of capacity. 

16. As against this the mother points to the fact that she is apparently available on a full-time basis to care for the girls at present because at present she is not working in paid employment.   It is unclear how long this position might remain and it is notable that this has not been a barrier in either household to week about care for the girls.  That is, the availability of the parents has not been perceived to be such as to prevent the week about arrangement.  In addition, the father attests to having adequate support through his mother and through his wider network.  He also attests to having significant flexibility in his work. 

17. The mother made some criticism of the father regarding his credibility.  Those are matters that I am not able to resolve in these interim proceedings and it is not necessary for me to do so.  The mother also criticised the father regarding an incident involving bird flu, that is one of the children was hospitalised with some form of influenza.  The father communicated this to the mother querying whether or not it would be appropriate for her to test her chickens.  She did so  and they were found to be clear and she is now critical of the father for the suggestion that the chickens may have been responsible.  I am unable to conclude any malice on the part of the father in respect of these communications.  In some ways they demonstrate his willingness to communicate health issues with the mother. 

18. The best interests of the children in this case fall to be determined on a very narrow basis of parental capacity.  That determination of parental capacity is a determination of preference based on who has demonstrated to some degree a superior ability in terms of that parenting capacity, that is in circumstances where it has to be said that both of the parents are capable parents and both of the parents are entirely able to look after both of these girls.  To the extent that a choice has now become necessary between them it does not mean that one of them is incapable of parenting and the other is capable.  They can both do it but it comes down to a choice of who, on the evidence, has demonstrated a superior capacity to do so and for the matters that I have identified previously I have determined that is the father.

19. In this instance it is appropriate that he have the decision-making capacity in relation to the girls’ schooling and because of the consequences of that, that he also be the person with whom the girls will live primarily.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 December 2017.

Associate:     

Date:  8 December 2017