Barber and Gallagher
[2012] FMCAfam 593
•19 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARBER & GALLAGHER | [2012] FMCAfam 593 |
| FAMILY LAW – Parenting arrangements – two children 11 and 8 – competing live with applications – 8 year old has Aspergers – no current therapy – poor parenting approach by Mother and her Husband – orders for no change in parenting arrangements but with conditions – ICL appointment extended. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC |
| H v W (1995) FLC 92-598 R and R; Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MR BARBER |
| Respondent: | MS GALLAGHER |
| File Number: | PAC 6687 of 2007 |
| Judgment of: | Sexton FM |
| Hearing dates: | 5, 6, 7 and 20 March 2012 |
| Date of Last Submission: | 20 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms K. Reynolds |
| Solicitors for the Applicant: | Bankstown Legal |
| Counsel for the Respondent: | Mr J. Hamilton |
| Solicitors for the Respondent: | Penmans Solicitors |
| Independent Children’s Lawyer: | Legal Aid Commission NSW |
ORDERS
The appointment of the Independent Children’s Lawyer continue for a period of 12 months or until further Order of the Court, whichever is the earlier.
By 6 December 2012, the Mother provide to the Independent Children’s Lawyer and the Father independent verification of compliance with Orders (8)(9) and (10), such independent verification to include details of compliance with these Orders until a date no earlier than 23 November 2012.
The Independent Children’s Lawyer have liberty to re-list on 3 days notice by communication with my Associate, such re-listing to occur no later than 18 December 2012, in the event of the Mother’s non-compliance with Order (2) or if she considers it necessary to relist for any other reason.
The Mother and Father have equal shared parental responsibility for the Children X born (omitted) 2000 and Y born (omitted) 2003.
The Children live with the Mother conditional upon the Mother's compliance with Orders (8) (9) and (10).
The Children spend time with the Father as follows:
(a)During school terms, for 2 out of every 3 weekends (being the first and second weekend of each three week cycle) from 8.00pm Friday until 7.00pm Sunday, commencing on the first weekend after the making of these Orders;
(b)During school terms, on one afternoon in the week prior to the non-contact weekend (being each third week), precise day and times to be agreed between the parties prior to the start of each school term, but in default of agreement, on Thursday from after school until no later than 7.00p.m in the (omitted) area;
(c)During school terms, on one afternoon during any other week on condition that the time occurs in the (omitted) area, the Father returns the children after an evening meal by no later than 7.00p.m. and the Father makes the arrangements directly with the Mother by email or phone at least 7 days in advance of the contact day;
(d)For one half of each of the NSW school holiday periods by agreement, and failing agreement, for the first half in odd numbered years and for the second half in even numbered years; and
(e)At other times as agreed between the parties.
Unless otherwise provided in these Orders, or otherwise agreed between the parties, the Mother deliver the Children to the Father's home at the commencement of the Children's time with him and the Father return the Children to the Mother's home at the conclusion of that time.
The Mother immediately take all steps necessary to:
(a)Ensure that Y resumes counselling at the (omitted) Clinic and keep the Father advised as to all appointments; and
(b)Attend upon the (omitted) Clinic herself to obtain advice and assistance in relation to her approach to parenting, and in particular, to develop her understanding of, and capacity to meet, Y’s emotional and developmental needs.
For the purposes of Order (8), the Mother, within 7 days attend upon her General Practitioner and obtain Mental Health Care Plans for herself and Y, together with referrals to the (omitted) Clinic (if necessary).
The Mother take these steps:
(a)Ensure that Y attends counselling at the (omitted) Clinic at such frequency as recommended by the therapist;
(b)Ensure that Y continues to attend counselling at the (omitted) Clinic until the therapist recommends that such counselling cease;
(c)Attend upon the (omitted) Clinic herself as requested by Y’s therapist and/or her own therapist;
(d)Comply with recommendations made by Y’s therapist and/or her own therapist in relation to Y’s treatment and her parenting in general; and
(e)Use her best endeavours to encourage Mr Gallagher to attend counselling together with her at the (omitted) Clinic for the purposes of obtaining advice and assistance in relation to his approach to parenting, and in particular, developing his understanding of, and capacity to meet, Y’s emotional and developmental needs.
The Independent Children's Lawyer have leave to provide a sealed copy of these Orders and these Reasons for Judgment to the Mother’s General Practitioner and the (omitted) Clinic.
Until each child completes Year 6, in the event that the Mother is not available to supervise the children before and/or after school, the Mother arrange for the Children to attend before and/or after school care, or organise their supervision before and after school by another responsible adult.
The Children spend time with each of the parties on Christmas Day as follows:
(a)In even numbered years, with the Mother commencing at 6.00p.m. on Christmas Eve until 3.00p.m. on Christmas Day and with the Father from 3.00p.m. on Christmas Day until 6.00p.m. on 26 December; and
(b)In odd numbered years, with the Father commencing at 6.00p.m. on Christmas Eve until 3.00p.m. on Christmas Day and with the Mother from 3.00p.m. on Christmas Day until 6.00p.m. on 26 December.
Each party keep the other informed of the telephone number at which the Children can be contacted by the other party, and the Children be at liberty to telephone the other party at any time.
Neither party change either Child’s school enrolment without the consent of the other.
The Mother and Father be restrained from making any negative comment about the other to the Children or making a negative comment about the partners of the other parent to the Children and both parties take all steps necessary to ensure that no other person makes negative comments about the parents or their partners to the Children.
The Mother and Father be restrained from discussing with the Children where the Children want to live.
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.
IT IS NOTED that in the event this matter is relisted in accordance with Order (3) as a result of the Mother’s failure to comply with any of Orders (8)-(10), the Father will be at liberty to make an application to vary these Orders, and any such application will be made returnable before me.
IT IS NOTED that publication of this judgment under the pseudonym Barber & Gallagher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 6687 of 2007
| MR BARBER |
Applicant
And
| MS GALLAGHER |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the parties’ two children, X aged 11 years and Y aged 8 years. Having separated in August 2006, the parties made their own parenting arrangements until the Father commenced these proceedings in April 2011. The children have lived primarily with the Mother and spent regular time with the Father since separation. In July 2009, the Mother relocated with the children from the former matrimonial home in Property S, a suburb of Sydney, to (omitted) on the Central Coast, to live with her present husband. At the time of her move, X was 8 years, and Y was 5 years of age. The change in the Mother’s location required the children to move schools, and the parties now live one and a half hours apart. The Father has concerns about the welfare of the children in the Mother’s household, and seeks orders providing for the children to live with him and the Mother’s mother in Property S.
Background facts
The parties are of (omitted) background. They married on (omitted) 1997, separated in August 2006 and divorced on 22 February 2008. At the time of separation, X was 5 years old (born (omitted) 2000) and Y was 2 years and 10 months (born (omitted) 2003). The parties remained living under the one roof until October 2007.
The Father is aged 43 years. He works full time as a (occupation omitted) from approximately 7.00a.m. until 3.30p.m. on weekdays and some Saturdays, but says he has flexibility in his hours of work. He has worked for the same employer for more than 10 years. As a result of the parties’ property settlement, the Father lives in the former matrimonial home in Property S. The Mother’s mother lives in a granny flat at the same premises. The Father has not re-partnered.
The Mother is aged 40 years. Since August 2011, the Mother has been employed full time as a (occupation omitted) in (omitted). She usually works from Tuesday to Saturday but can vary those arrangements to Monday to Friday if she chooses to. She travels to and from work by train. The Mother is presently leaving home at 6.55 a.m. each morning and arriving home each evening at approximately 6.45 p.m. She says she is looking for work in the (omitted) area so she can reduce her hours away from the children, so far without success.
In early 2009, the Mother commenced a relationship with Mr Gallagher. She relocated to (omitted) with the children on 17 July 2009 to commence cohabitation with Mr Gallagher in his home there. X started at (omitted) Public School in Year 3 and Y in Kindergarten. The children remain at that school. The children share a room, but the Mother anticipates the children having their own rooms from June 2012.
The Mother married Mr Gallagher in (omitted) 2011. Mr Gallagher, a (occupation omitted), has two sons, A aged 15 years and B aged 13 years who share their time equally between Mr Gallagher and their mother. Mr Gallagher has worked in the Sydney CBD since September 2011. Until a few weeks ago, he left home earlier than the Mother in the mornings and returned home at approximately the same time. Since the children have been attending after school care, he returns home at 5.30 p.m. to collect the children.
Ms S, psychologist, prepared a report for the Court in February 2012[1]. At interview, she raised concerns with the Mother and Mr Gallagher about the children being unsupervised before and after school. Her concerns prompted the Mother to enrol the children in before and after school care two weeks before hearing. The Mother now delivers the children to before school care at 7.00a.m. and Mr Gallagher collects the children from after school care at approximately 5.30p.m.
[1] Exhibit 1
Y was diagnosed with Asperger’s Disorder in June 2010. The diagnosing paediatrician made certain recommendations to the Mother in relation to professional treatment and support for Y, but she did not implement those recommendations.
Previous arrangements
In August 2009, after the Mother’s move to (omitted), the Children commenced spending time with the Father by agreement between the parties all day each Sunday. In late August 2009, the children’s time with the Father increased to one overnight every weekend. In November 2009, the time increased again so that the children were spending time with the Father from Friday evening until Sunday evening every weekend.
Current arrangements
Interim Orders were made by the Court by consent on 11 July 2011 providing for the Children to live with the Mother and to spend three out of every four weekends with the Father, from Friday at 8.00 pm until Sunday at 8.00 pm when the Mother delivers the Children to Property S on Friday evenings and the Father returns the Children to the Mother’s home on Sunday evenings. These arrangements were in place at the time of hearing.
The Mother says that on the Friday evenings the children spend with the Father, she returns home from work at (omitted) by train, then travels with the children by train to (omitted) Station arriving at approximately 8.00p.m. The Father usually meets them at the Station. Sometimes she goes to the Father’s home with them, but sometimes she returns directly on the train to (omitted). Only occasionally does she take the children by car. She says she finds driving extremely tiring but will drive “if dark and wintry”.
Issues
The issue for determination is whether the children should primarily live in Property S with the Father and the maternal grandmother, or in (omitted) with the Mother and Mr Gallagher. The parties agree that the children should spend the majority of weekends with the non-resident parent.
Expert’s recommendations
Ms S recommends that the children live with the Mother “but that the concerns about supervision and care in the Gallagher household be addressed to ensure the children’s safety and well-being.”[2] She recommends that the children spend time with the Father on 2 out of 3 weekends, or 3 out of 4 weekends, with perhaps an evening during the week for a meal if the Father is prepared to undertake the travel. Ms S says that if the Mother is not prepared to change her approach to the children’s care, consideration should be given to the children living with the Father and spending as much time as practicable with the Mother. However, in her view, a move to the Father would be a big change for the children, who are used to the Mother being their main carer. She says that such a change would impact, in particular, on X who is very happy living on the Central Coast, and looking forward to high school in her local area. Ms S finds Y more unsettled than X in his present circumstances. Ms S has concerns about the high level of independence expected of the children by the Mother and Mr Gallagher. She recommends that the Mother and Mr Gallagher seek input from a child and family professional “regarding their parenting approaches and routines and decision-making.”[3] Under cross-examination, Ms S did not change her recommendations. She said it was best to address the concerns in the Mother’s household than to move the children to the Father’s home, which she believes is “emotionally risky”.
[2] Recommendation 1 at page 17 of Exhibit 1
[3] Recommendation 4 at page 18 of Exhibit 1
Orders sought by each party
Each party and the Independent Children’s Lawyer seek an Order for the parties to have equal shared parental responsibility (the Mother also seeks an order for sole parental responsibility in relation to the children’s secondary schooling) and for the children to spend half school holiday periods with each party.
The Father seeks orders providing for the children to live with him and to spend time with the Mother from after school Friday until 7.00p.m. Sunday on 3 out of every 4 weekends.[4] He proposes that the children return to the (omitted) primary school they attended in Property S and that X attend the local (omitted) High School in 2013. The Father says he will offer X dancing classes after school, piano lessons and other extra curricular activities which she is not given the opportunity to enjoy while living with the Mother. He will enrol Y in soccer and engage him in physical activities. The Father will change his working hours to start earlier and finish at 2.30p.m. so he can collect the children from school. The maternal grandmother says she will prepare breakfast and walk with the children to school in the mornings and be available to care for them when the Father is working or otherwise unavailable. When the maternal grandmother is overseas for 3 months from June 2012, the Father’s brother will live in her granny flat to care for the children in her place.
[4] Exhibit 3
The Mother seeks orders providing for the children to remain living with her and to spend time with the Father on 2 out every 3 weekends from 8.00p.m. Friday until 8.00p.m. Sunday.
The Independent Children’s Lawyer seeks Orders providing for the children to live with the Mother and spend time with the Father on 3 out of every 4 weekends, on condition that the Mother:
a)Ensures Y resumes counselling at the (omitted) clinic;
b)Attends upon the (omitted) clinic herself to obtain advice and assistance in relation to her approach to parenting;
c)Develops her understanding of and capacity to meet Y’s emotional and developmental needs;
d)Does all she can to encourage Mr Gallagher to attend counselling with her at the (omitted) clinic for the same purpose; and
e)Ensures the children are supervised by a responsible adult before and after school until each child completes Year 6.
Each party was represented by counsel at hearing, and the Independent Children’s Lawyer was represented by a solicitor advocate.
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).
Y’s behaviour and diagnosis
In mid 2010, Y was diagnosed with Asperger’s Disorder. Each party’s, and Mr Gallagher’s, attitude to this diagnosis and their approach to managing Y’s consequent difficult behaviours is a significant issue in this case.
The Mother recalls Y displaying challenging behaviours from an early age. As an infant, she reports his obsession with rubbish, rubbish bins and rubbish trucks to the exclusion of toys. His pre-school teachers reported his temper outbursts, swearing, inability to control his reactions, aggression towards other children and an inability to integrate with other children. The Mother observed him talking to himself and being a fussy eater. In his first year of school, he was reported for tantrums and bullying, and his teacher recommended the Mother consult a psychologist. The Mother claims that the Father refused to allow her to follow this up, asserting that “there is nothing wrong with him.”
The parties agree that Y was not toilet trained until he was 7 years of age. The Mother reports the Father shaming Y for not controlling his toileting, on one occasion talking at Y for an hour while Y sat on the toilet, unable to defecate. She says that the Father “adamantly refused to allow me to obtain professional assistance” claiming “it is a discipline issue.” [5]
[5] At paragraph 44 of Mother’s Affidavit affirmed on 20 February 2012
The Mother says that Y’s difficult behaviour continued when he commenced school at (omitted) Public School in the second half of 2009. That school also reported him bullying, hitting other children and swearing. She says Y was behaving badly at home, punching and hitting family members and refusing to eat. At the school’s suggestion, the Mother consulted her General Practitioner who referred Y to Mr S, a psychologist at the (omitted) clinic in (omitted). Y had a number of meetings with the psychologist with the Mother, on occasions also with Mr Gallagher, and in later sessions with the Father.
In his notes of 25 February 2010[6], Mr S reports that Y presented with symptoms indicative of autistic spectrum disorder, encopresis, and adjustment disorder. In his view, the tension between his parents was exacerbating Y’s emotional distress. The psychologist notes that the Father believes that Y has no autistic traits. He reports the parents have had difficulty working collaboratively to change Y’s behaviour, though the Mother has had more success in implementing programs for his encopresis than has the Father.[7]
[6] Exhibit 4
[7] Exhibit 4
The Mother was referred to a paediatrician, Dr D. Dr D assessed Y at 6 years and 8 months of age. By letter dated 24 June 2010[8], Dr D states that Y has Asperger’s Disorder. He recommended that Y have continued counselling with a psychologist at the (omitted) Clinic and for the Mother to seek advice from the Autism Advisor as to available intervention services. Dr D believed Y would qualify for a support teacher at school and could access 20 therapy sessions with a combination of psychologists, occupational therapists or speech pathologists with funding support. He recommended Y undergo an assessment with an occupational therapist to check his fine motor skills and sensory processing skills.
[8] At Annexure B of Mother’s affidavit sworn 20 February 2012
Following receipt of this report, the Mother arranged only one further appointment with Mr S. It is common ground that the Mother did not otherwise take steps to implement the recommendations of Dr D. Instead the Mother says she accepted the advice of Mr Gallagher that Y did not have Asperger’s Disorder, but simply needed help with socialisation. The Mother claims that Mr Gallagher has given her significant help in managing Y’s behaviour, which has resulted in major improvement. She says that Y’s school marks have improved and that he is now more socially competent. He has developed a friendship with a boy in his class, (omitted), with whom he regularly plays after school. He has received an award for good behaviour, achieved top marks in a science assignment and second place in a speech competition with Mr Gallagher’s help.
Between May 2010 and October 2011, the (omitted) school reports[9] disclose Y’s aggressive behaviours from time to time. However, his school report in June 2011 is also positive about his social development and commitment to learning. Y’s overall achievement at that stage is “sound” in the majority of subjects with “high” for mathematics. In December 2011, his achievement is “high” in English and Mathematics, “sound” in other subjects, and his rating for “self control” “consideration to others” “works independently” and “completes set tasks” a grade lower. The school comments in that report[10]:
Y is a likeable student with a wonderful sense of humour. Y does have times when his behaviour is inappropriate and sometimes hurtful towards others. He has displayed regret for those actions when the consequences are explained…Y likes order and nearly always presents work that is neat and tidy… he does require constant monitoring.
[9] Exhibit 6
[10] Exhibit 6
In the Mother’s care, the Mother acknowledges Y has not been treated or professionally assisted as recommended by the (omitted) Clinic, or by Dr D. The Mother has been unsure as to whether or not to accept the diagnosis of Asperger’s Disorder as Mr Gallagher has significant doubts as to whether Asperger’s is a “real condition” and the Mother says “I did not want hurt Mr Gallagher’s feelings”.
Mr Gallagher believes the diagnosis is wrong and that Y “is a normal kid”, emotionally young, who needs to be socialised. However, at hearing, Mr Gallagher says he is now willing to obtain another opinion.
In his affidavit evidence[11], the Father does not accept that Y has Asperger’s Disorder, though in cross-examination he changed his position, claiming to accept the diagnosis. The Father says he has been long aware that Y “has problems” and needs professional treatment. He claims, strongly disputed by the Mother, to have suggested that the parties seek professional help when Y was unable to toilet himself at the age of 4, but “nothing happened.” He says he agreed to Y attending the (omitted) clinic, and attended his last appointment with him. He read a booklet the Mother gave him on Asperger’s. However, there is no dispute that the Father has not, himself, initiated any therapeutic interventions for Y, and when made aware that Y had been referred to a paediatrician, the Father made no inquiries of the Mother as to the outcome.
[11] At paragraph 34 of Father’s affidavit affirmed on 4 July 2011
The Father says he is rarely troubled by Y’s behaviour when in his care, and though aware Y had been swearing at school, was unaware of the school reports of his aggressive behaviour towards other students. The Father says he accepts that Y needs professional assistance and if living with him, he will consult his General Practitioner for a referral to a specialist. The Father believes that Y would benefit from physical exercise, playing soccer in a team which he would organise if the children lived with him. He says Y has been gaining weight and “spends way too much time on his bottom” playing on the computer.
On the basis of the clinical assessment of the psychologist Mr S of late 2009/early 2010, and of the formal diagnosis of the paediatrician Dr D in June 2010, I am satisfied that Y has Asperger’s Disorder.
I find that the Mother has long been concerned about Y’s behaviours, and believes the diagnosis, though has been more concerned to please her husband, and going along with his ideas of “fixing” the problem, than to implement the strategies recommended to assist Y by the professionals she has consulted. While she contends that she has “been thinking counselling might help him [Y]” given he is unhappy with his teacher, has recently regressed in his behaviours, and has been saying he is going to kill himself, she has still not taken steps to help him. I find the Mother’s passive attitude alarming.
I find that the Father has lacked the insight or initiative to investigate Y’s difficulties himself, taking the view that this has always been the Mother’s responsibility. Since the Mother’s relocation to (omitted), I find that the Father has convinced himself that all Y’s behavioural problems are caused by Mr Gallagher and has therefore been focussed on achieving a change of residence for Y away from Mr Gallagher, rather than on other possible causes.
I find that Mr Gallagher has strong opinions about the management of Y’s problems and has been largely satisfied with Y’s progress under his guidance. I find that Mr Gallagher has a high opinion of his own parental capacity, and has therefore been unwilling to accommodate the opinions of either Mr S or Dr D.
I give these findings considerable weight.
Relationship between the Mother and her husband, Mr Gallagher
The Mother commenced cohabitation with Mr Gallagher when she moved from Property S to (omitted) to live with him in July 2009. She believes Mr Gallagher is a gifted parent and defers to him for decision-making in relation to Y and X. A question arises as to Mr Gallagher’s parental capacity and as to the Mother’s willingness and/or capacity to prioritise the children’s needs over her wish or perceived need to approve Mr Gallagher’s parenting approach. As discussed in detail later in this judgment, the Mother has chosen not to intervene even when she has not agreed with Mr Gallagher’s decisions concerning the children.
Ms S was concerned about Mr Gallagher’s parenting approach as being “misguided.” She said[12]:
More concerning was the impression that his approaches tended to dominate despite Ms Gallagher sometimes holding different views that seem more attuned to the children’s developmental needs. The couple may benefit from some professional input to discuss their combined parenting approaches.
[12] At paragraph 54 of Exhibit 1
Ms S found Mr Gallagher sometimes attempted to answer questions posed to the Mother during the Family Report interviews “until he was asked to desist”.[13] Ms S found the expectations of Mr Gallagher and the Mother on the children too onerous for children of their age, and that both children are likely to be adversely affected by the level of responsibility expected of them.
[13] `At paragraph 25 of Exhibit 1
As already noted, Mr Gallagher has two sons of his own who spend half the week every week living with him, the Mother and the children. An issue arises as to whether Mr Gallagher treats X and Y as well as he treats his own sons given their routines are usually separate. The Mother and Mr Gallagher eat together infrequently and only monthly does the whole family, including Mr Gallagher’s children, eat together. The Mother eats with X and Y and Mr Gallagher and his sons eat fruit. Mr Gallagher owns the only family car which does not accommodate Y and X when he has the care of his own children. The Mother says Mr Gallagher does not help her get the children to Property S on a Friday evening (requiring her to leave work in (omitted) travel by train and then return by train with the children to (omitted)), because it would be too difficult with his other two children. Ms S gives her opinion:[14]
There was no suggestion that Mr Gallagher feels antipathy towards X or Y. However, he did give the impression that the family routines are based around meeting the needs of the adults and the arrangements with his two sons, rather than those of the younger children.
[14] At paragraph 55 of Exhibit 1
Ms S had concerns about the lack of attendance to routines and basic care for the children. She says[15]:
There is a sense that the short waking hours the children spend with their mother and Mr Gallagher are somewhat chaotic and that there are few family routines.
[15] At paragraph 53 of Exhibit 1
I find that the Mother is anxious to please Mr Gallagher. Her choice to meet hers and Mr Gallagher’s needs ahead of those of the children has placed the children’s safety, both physical and emotional, at some risk. I accept Ms S’s recommendation, supported by the Independent Children’s Lawyer, that the Mother and Mr Gallagher need professional help with their relationship and with their parenting approach.
PRIMARY CONSIDERATIONS
The benefit to the children of having a meaningful relationship with both of the children’s parents
Ms S assesses X and Y as having close and loving relationships with both parents and neither party disputes the importance of the other parent to each of the children. On each party’s proposal before the Court, the children will spend as much time with each party as practicable given the significant practical difficulties created by the one and half hours travelling time between the parties’ homes. I agree with Ms S that the children would benefit from more significant time with the non-resident parent than is possible while the Mother remains living in (omitted) and the Father in Property S. I find it regrettable for the children that neither party is presently willing to relocate closer to the other.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
“Abuse” was, at the relevant time, narrowly defined in section 4 of the Family Law Act as sexual abuse or an assault of a child which is an offence under the law. This is not an issue in this case.
A question arises as to whether the Children have been psychologically harmed by exposure to family violence or from neglect.
“Family violence” was defined at section 4 of the Act, at the relevant time, as conduct, whether actual or threatened that causes the person to reasonably fear for, or to be apprehensive about, his or her personal wellbeing or safety. While the Mother alleges the Father was verbally abusive towards her at times during the marriage, and describes two incidences of alleged violence against her by the Father, one in 2006 and one in 2007, when the parties were living under the same roof with the Children, she does not contend that the Children are exposed to any risk in the care of the Father, nor that the Court should have regard to the two alleged incidents when making final parenting orders.
Having considered the evidence in relation to the Father’s conduct during the marriage, and on these two occasions, which I now briefly outline, I agree with the Mother’s contention.
It is common ground that in August 2005 and again in October 2005, the Mother took an overdose of drugs. She says she was unhappy, felt trapped in her home environment and was desperate to escape. The Mother acknowledges that she did not complain to the hospital or any authority about the Father’s behaviour towards her because, at times, he was also understanding and supportive of her. The Father denies verbally abusing the Mother.
In August 2006, the parties separated but remained living in the matrimonial home in Property S with the Children and the Mother’s mother. It was in this context that the first incident occurred. The Mother alleges that after an argument one evening she ran out of the house, when the Father chased her across a park, threw her to the ground and put his hands around her neck. The Father denies any form of aggression. He says he followed the Mother to the park and held her on the ground momentarily because he was extremely worried for her safety.
The Mother described the second incident in September 2007 as more serious. She says the Father grabbed her in the bathroom of the home while she was carrying Y, then aged 3 years, and hauled her to the lounge room with both arms. She claims he pulled her behind the couch terrifying Y. The Father acknowledges being annoyed with the Mother for keeping the children out late shopping for toys they could not afford. He says they argued. He lifted the Mother from the bathroom floor and took her to lounge room. He denies assaulting the Mother, but says he told police he pushed her in front of him which resulted in his plea of guilty to an assault.
The Father moved out of the home in October 2007. On 1 November 2007, an Apprehended Violence Order was made against the Father for a period of 12 months, for the protection of the Mother and children.
I am satisfied there was considerable emotional tension between the parties during the period before and after separation when the parties remained living in the Property S home, but that since separation, the parties have for the most part, been able to communicate in a more business like manner for the sake of the children. I find it noteworthy that there have been no incidents since the two described by the Mother, and she has made no further complaint about the Father’s conduct.
I am not therefore satisfied that my findings under this factor are relevant to the question of the Children’s future parenting arrangements as I am not satisfied the children are presently at risk of physical or psychological harm from being exposed to abuse, neglect or family violence.
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.
The Full Court in H v W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said that the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
…including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.
The Children both told Ms S that they enjoy living on the Central Coast, playing outdoors and going to the beach. X said that the house is dirty and sandy but “it is really cheery” and she likes living there.[16] X told Ms S that she likes the present arrangements because they have an equal amount of time with each parent, though X says they hardly see the Mother during the week. Y says it is not fair as they do not spend as much time with the Father as with the Mother.[17]
[16] At paragraph 37 of Exhibit 1
[17] At paragraph 38 of Exhibit 1
The Father says that Y frequently tells him that that he does not want to live in (omitted), hides when he has to return after weekends, and screams at the Father not to make him get out of the car when they arrive at (omitted) on a Sunday evening. I accept his evidence. The Father claims to make positive comments to Y about seeing his Mother and his dogs (Y loves the dogs) but says that Y struggles to leave him “on many many Sundays”. As later noted, I am not satisfied that the Father manages these handovers well. The Father believes, and I accept, that Y overheard Mr Gallagher say that married people live longer and therefore believes that the Father is going to die. But the Father also says that Y was upset in February 2012 because he believed that if he lived with the Father, he would never see his Mother again.
I accept that Ms S found X careful not to favour one parent over the other, but formed the view that X would prefer to stay on the Central Coast, enjoying close friendships and her role as a leader in Year 6. X made it clear to Ms S that she is looking forward to starting secondary school on the Central Coast. I also accept that Ms S found Y more ambivalent, given his very close relationship with the Father, but agree that Y does not have the maturity to understand what living away from the Mother would mean.
I have regard to these findings in reaching my decision.
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)
As already noted, Ms S assesses strong loving relationships between the children and each party and each party acknowledges the strength of those relationships. The Mother says that Y, in particular, found the separation difficult and badly missed the Father. I am satisfied that the children enjoy strong, healthy and loving relationships with each parent.
The children lived with the maternal grandmother until the parties’ separation and since then, they have lived with her whenever they are in the Property S home with the Father, and she has accompanied them on holidays with the Father. I find that the maternal grandmother has been, and continues to be, actively involved in the children’s care and the children are her “pride and joy”. The maternal grandmother supports the Father’s application to have the children live primarily with him. I find that the children enjoy a loving relationship with the maternal grandmother.
It seems likely that the Father’s brother, Mr Barber, has a close relationship with the children. The children see him regularly on weekends when they are with the Father and they have had a number of family holidays together. He tells the Court he would happily care for the children in the maternal grandmother’s absence for 3 months overseas, given their close relationship.
The children told Ms S that they enjoy playing with Mr Gallagher and his two sons, and Ms S observed that they appear to have enjoyable times together. I accept this evidence.
I have regard to these findings.
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
The Father has been actively involved in the children’s care since separation, encouraged by the Mother. The Father says that after he left the home in October 2007, he used to see the children on most days after work, and the Mother placed no restriction on his time with the children. After her relocation to (omitted), the Mother arranged for the children to spend extra time with the Father because they were missing him, and she has been happy to gradually increase the children’s time with the Father since then. She acknowledges that Y in particular “loves his father very much”. The Father says the parties have been able to communicate about the children and generally to make arrangements amicably.
The parties both give instances of each party being flexible in arrangements for the benefit of the children. These include the Father assisting the Mother’s sister’s transport on the Mother’s wedding day, and inviting the Mother and Mr Gallagher to the children’s (omitted) dancing classes on Mother’s Day in 2011. Both parties have, on occasions, swapped weekends and been flexible to accommodate the children’s wish to attend a special event. Recently, the Father looked after the children on swimming carnival day, when they were not participating and the Mother was working. The Father has facilitated X having a sleepover on the Central Coast, and had a friend to his home to stay with her one weekend.
I find the instances of each party’s failure to communicate or cooperate from time to time, largely relate to the Father’s distrust of Mr Gallagher’s involvement with the children, and to the Mother’s protection of Mr Gallagher’s involvement with the children. The Father believes that Mr Gallagher has mistreated the children, particularly Y, and that Y is frightened of Mr Gallagher. The Father believes that the Mother is much too influenced by Mr Gallagher and has therefore put the children’s safety at risk, especially by leaving them inadequately supervised and by permitting his inappropriate disciplinary methods.
The Mother complains that on occasions the Father has removed the children from school without her permission. The Father excuses his decision to remove the children from school in April 2011 claiming they had influenza, needed medical attention and should not have been sent to school by the Mother. He contends that the Mother telephoned him when at the medical clinic and agreed to him looking after them. The Mother denies the Father consulted her, says the children were well enough to go to school, and that the Father removed the children without her knowledge or consent. The Father complains that the Mother did not involve him in her decision to consult the (omitted) Clinic with Y, and failed to provide him with reports from the psychologist or the paediatrician. I accept each party’s evidence on these breakdowns in communication.
Ms S observed the parents enjoying a cooperative child focussed approach to managing the parenting arrangements, despite the areas of disagreement between them.[18] While there are examples of the parties’ failing to communicate about issues of significance, I find the evidence generally supports Ms S’s observation.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her 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
[18] At paragraph 48 of Exhibit 1
The Mother describes the children as progressing well at (omitted) Public School and observes each child to enjoy their relationships with Mr Gallagher and his boys, and their special friendships at school and locally. If the children remain in the Mother’s care during the week and the Father’s care on the majority of weekends, as proposed by the Mother, there will be no change to current arrangements. Next year X will attend (omitted) High School, a few doors from the Mother’s home, and if her application is successful, join the performing arts class at that school. She was due to audition at the time of hearing. The parties describe X as a genuinely happy child, gregarious, affectionate and loving performance. X was the Student Council Representative for her class in 2010, hosted the speech finals in 2011, has represented the school in dancing this year and been appointed a School Leader. For Y, remaining with the Mother allows him to continue his special friendship with (omitted) who lives a few doors away, his relationships with Mr Gallagher’s two boys, and allows him to consolidate his improved performance at (omitted) Public School and to access the (omitted) Clinic for his special needs.
However, if the children were to live with the Father, they would not be required to attend before and after school care as they do now (and about which they have complained in the past) because either the Father or the maternal grandmother would be available to care for them before and after school, would prepare their breakfast and lunches and accompany them to and from school until they were old enough to travel alone. The Father would be available in the afternoons to facilitate the children’s involvement in extra curricular activities, and would facilitate X’s attendance at (omitted) dancing on Tuesday evenings, an activity she enjoys. The children would spend time with the Mother, Mr Gallagher and his two children on the majority of weekends and during school holidays, when the Mother would be more available to spend time with them. This would, however, involve a change of schools, a difficult adjustment, a need to establish new friendships and the loss of the presence and support of the Mother day to day during the school week, which they have always been used to.
Ms S says the children’s time with the Mother during the week is important, even though they see very little of her on weekdays. Ms S believes a move to the Father’s would be a major change for the children and require significant adjustment. I accept Ms S’s opinion on this issue and give these findings significant weight.
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
On either party’s proposal, it will be necessary for the children to travel on weekends to spend time with the other parent, as they have done since the Mother relocated to (omitted) in July 2009. As already noted, to facilitate the children’s time with the Father on 3 weekends out of 4, the Mother takes the train from (omitted) to (omitted) at the end of her working Friday, and then travels with the children from (omitted) to (omitted) by train. The Father returns the children to (omitted) on Sunday evenings by car. If the children lived primarily with the Father, it is likely the children would continue to travel by public transport one way on the weekends they spent with the Mother, and by car the other way. There would therefore be no change of significance to their onerous travel arrangements whatever their primary place of residence.
The capacity of each of the children’s parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs
This is a significant factor, particularly in relation to the Mother who has delegated so much of her parental responsibility for the children to Mr Gallagher. I share Ms S’s opinion that the parenting approach taken by Mr Gallagher has been misguided, and the Father’s concerns, at times, about the safety of the children in the Mother’s household, justified. I find that the consequences of Mr Gallagher’s poor judgment have been exacerbated by his failure to appreciate that Y has special needs which require a particular approach. Examples include expecting Y to understand that swearing in front of some is acceptable and in front of others unacceptable; telling Y in front of the police that his Father and uncle are violent; and giving Y lengthy verbal lectures about his poor behaviour.
As already noted, in the Mother’s primary care, despite his ongoing behavioural difficulties at school, (including attempting to strangle another child), Y has not been offered the professional support recommended by his diagnosing paediatrician. The Mother has instead chosen to follow Mr Gallagher’s advice as to how to manage Y’s behaviour, despite her own apparent misgivings about that advice. I find the Mother immature, with limited insight into the impact on the children of her delegation of parental responsibility to Mr Gallagher. By way of example:
a)The Mother has passively adopted Mr Gallagher’s view that Y does not have Asperger’s, but simply needs to be “socialised”, despite the opinion of two professional experts and reports from the school. She has sacrificed Y’s needs to please Mr Gallagher.
b)Despite Y’s special needs, the Mother has accepted without question Mr Gallagher’s disciplinary approach towards Y, including his decision to twice take Y to the police station to be given dire warnings as to the likely consequences of his behaviour, despite being aware that Y “was terrified”. The Mother has accepted Mr Gallagher’s decision to smash Y’s truck with a hammer in an attempt to teach Y the consequences of aggressive behaviour, and after the event be more concerned about Mr Gallagher’s feelings of guilt than any trauma to Y. The Mother says “I’m not great at discipline”, so “some aspects I leave to Mr Gallagher”. “I trust Mr Gallagher to discipline Y”.
c)The Mother permits Mr Gallagher to communicate with the children’s school on his own initiative without prior consultation with either her or the Father about the relevant issue. The Mother hands the phone to Mr Gallagher when the Father calls to discuss issues related to the children. She says “Mr Gallagher is very protective of me.” The Mother approves of Mr Gallagher’s decision to call the police for a welfare check, when the Father removed the children from school to consult a doctor about their health. The Mother was untroubled by being unaware of all Mr Gallagher’s communications with the school concerning the children.
d)The Mother accepted Mr Gallagher’s advice that it was “good for the children to be independent” when she left the children alone at 5 and 8 years of age to get themselves to and from school, organise their own lunches and breakfasts, despite her apparent misgivings and Y’s special needs. The Mother was aware that Y was frightened of walking to from school alone. She said “Mr Gallagher’s way was to bribe them with a phone” and “my way was to walk with them to show them the route.” On 11 February 2010,[19] when Y was reportedly soiling his pants during the day, Y’s teacher wrote in the communication book that Y was scared of being kidnapped but this had no effect on the Mother. The Mother told the Court that she had not considered how she would feel if something happened to the children while unsupervised, until it was pointed out to her by Ms S. She then claims to have realised (for the first time) that the children might be unsafe without adult supervision before and after school, so enrolled them in before and after school. I find this evidence particularly troubling as to the Mother’s parenting capacity.
e)After she commenced cohabitation with Mr Gallagher, the Mother left X for many months sleeping in the same room as one of Mr Gallagher’s sons, and Y in the same room as his other son, despite being aware that the children were uncomfortable and unsettled by these sleeping arrangements.
f)In May 2010, the (omitted) Clinic notes disclose that Y “continues to be stressed by Mr Gallagher”. The Mother ignored this advice and showed no appreciation of what Y could handle by way of pressure to perform.
g)After acknowledging the many hours Mr Gallagher spent with Y to prepare for a speech competition, the Mother failed to recognise the significance of Y’s genuine distress when fearful of Mr Gallagher’s reaction (possible return to the police station) after coming second (not first) in the competition. The Mother was more concerned about Y not appreciating the considerable efforts Mr Gallagher had made on his behalf.
[19] Exhibit 6
I find the Mother has failed to prioritise the needs of the children when choosing to leave the children for long hours without supervision, while travelling a considerable distance to and from work, “because it’s a good work environment”, particularly in light of Y’s special needs. The Mother is out of the home from early morning until the evening on 4 weekdays each week, as well as one day of almost every weekend. X tells Ms S that she hardly sees the Mother during the week.
I find the Mother’s stated reasons for failing to follow through on the medical recommendation to have Y continue in counselling, naïve and inadequate when she says “I thought it was embarrassing for Y”.
The Mother was depressed and suicidal in 2005 requiring in-patient care. The hospital notes[20] refer to her “excessive smiling” and a diagnosis of “decompensating cluster B personality disorder histrionic” and “depressive disorder”. While there is no other medical evidence to suggest the Mother has ongoing mental health issues, I found the Mother’s unusual presentation in the witness box raises potential concerns. The Mother smiled excessively, laughed inappropriately, and seemed almost child-like in her response to questions about serious issues, particularly involving Mr Gallagher. I agree with the opinions of Ms S and the Independent Children’s Lawyer as to the Mother’s, and Mr Gallagher’s, need for professional parenting assistance. It remains an open question as to whether the Mother can implement an improved approach.
[20] Exhibit 9
While the Father raises concerns about the children’s nutrition and hygiene in the care of the Mother, allegations denied by the Mother, I am unable to make findings on these allegations on such limited evidence. The Father does not deny that the children enjoy a diverse range of activities with the Mother, including card games, reading, bushwalking, fishing, visiting galleries and museums, excursions and holidays, and I am satisfied this is the case.
The Mother makes no serious complaint about the children’s welfare in the Father’s care, or about the Father’s capacity to parent, except when she tells Ms S that “he tries to draw the children’s sympathy” which she believes is emotionally demanding on them.[21] In particular, the Mother complains that Y can be hard to settle after transitions because the Father spends “15 minutes cuddling him” outside her home before drop off. I accept the Mother’s evidence that quick and cheerful handovers would be easier for Y.
[21] At paragraph 35 of Exhibit 1
I accept the Father’s evidence of the diverse range of activities the children enjoy with him: (omitted) dancing on Saturday afternoons, bowling, the cinema, pony rides at the organic market, picnics with friends, ice-skating. I find the Father wants what is best for the children. He wants to give X and Y the chance to pursue extra curricular activities during the school week. He believes Y would benefit from being part of a team and engaging in physical exercise. I was impressed by the Father’s ingenuity on the weekend before hearing when Y wanted to stay on the computer despite the Father’s suggestion he take him and X ice-skating. Y refused, choosing to remain on the computer. The Father offered bowling as a second option. Y refused again. The Father said “Ok, I’ll choose.” He said “I choose going to the park to meditate.” Y rapidly capitulated and they went ice-skating.
It is common ground that the Father will step in to care for the children when they are unwell, when they are on holidays, or the Mother is unavailable, and will assist the Mother with transport when necessary. I am satisfied the Father is strongly committed to the children’s welfare and until the children commenced before and after school care, was genuinely and justifiably concerned for their safety when left unsupervised.
I give substantial weight 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
I have nothing to add under this factor.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents
The Mother raises a number of concerns about the Father’s conduct which has undermined hers and Mr Gallagher’s parenting role and caused distress to the children. She deposes to conversations in 2010, when the Father used to say to Y: “what problems is Mr Gallagher causing?” and “don’t worry about this terrible (omitted) place”. [22] The Mother also deposes to the Father telling Y that the Father would die if Y did not live with him, causing Y disrupted sleep and considerable anxiety. Mr Gallagher deposes to the whole family playing games happily on the floor and a call to Y from the Father causing Y to say “I hate living in (omitted). I want to live in Property S”[23] and to spitting on Mr Gallagher and saying “I hate you” to him. I accept the Mother’s evidence.
[22] At paragraph 58 of Mother’s affidavit affirmed on 20 February 2012
[23] At paragraph 19 of affidavit of Mr Gallagher affirmed 20 February 2012
Before the July 2011 orders were made, the Mother says that the Father has retained the children at times, disturbing their routine and causing one or other child to miss school days. She claims that the Father would link the children’s time with him to his child support obligations and refuse the children extra time with her for special events. In particular, the Mother refers to examples of the Father taking the children from school, alleging they were ill when, in her opinion, they were well enough to attend school.
I find that the Father has had genuine concerns about the Mother’s attitude to sending the children to school when they have been unwell, though I am also satisfied that the Father has not always consulted the Mother appropriately about these concerns before taking his own action. Given the Father has more flexibility in his employment than the Mother, it would help the children if the parties would cooperate constructively on how to manage these “sick days”.
I have already addressed Ms S’s concerns, which I share, about the Mother giving the children too much independence and responsibility for their young ages. I am strongly critical of the Mother’s decision to work long hours far from her home, while leaving the children to their own devices, though I note that as a result of Ms S’s intervention, the Mother has now made arrangements for the children to attend before and after school care. I find the children’s school days long days for them. I find that it would be much better for the children if the Mother could find work closer to home.
One of the key problems in this case is the lack of trust between the Father and Mr Gallagher, which I find has arisen largely as a result of the Mother delegating her parenting role to Mr Gallagher, in order to please him and receive his approval. I am not satisfied this problem is likely to improve until the Mother develops the confidence to make her own decisions about the children, whatever Mr Gallagher might think, and until Mr Gallagher and the Mother receive professional help as to their parenting style, particularly in relation to managing Y’s special needs.
However, I am also satisfied that the Father needs to accept that Mr Gallagher has a role in the children’s lives and must communicate with him in a civilised, business like manner. I find it is not in the children’s best interests for the Mother to be unable to take Mr Gallagher to visit the maternal grandmother fearing an altercation between Mr Gallagher and the Father, or Mr Gallagher and the Father’s brother, as I am satisfied occurred previously. For his part, Mr Gallagher must accept that he too has been negative and sarcastic towards the Father at times, which has been unhelpful, and that he needs to improve his attitude to the Father for the sake of the children. I urge both men to examine their past behaviour towards each other, and focus on the needs of the children, rather than on their own feelings of anger and resentment.
I take these findings into account.
Any family violence involving the children or a member of the children's family
I have addressed these issues earlier in these Reasons.
Any family violence order that applies to the children or a member of the child’s family, if the order is a final order or, the making of the order was contested by a person
As already noted, on 1 November 2007, a final Apprehended Violence Order was made against the Father for 12 months for the protection of the Mother and the children. No family violence orders have been made since then. This factor therefore does not apply.
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
The parties resolved their own parenting arrangements from the time of separation in 2006 until the Father commenced these proceedings in April 2011. I find that those arrangements were child focussed, providing for the children to spend significant time with each parent and permitting some flexibility. The Father accepted that the children should live primarily with the Mother and spend weekend and holiday time with him. These proceedings were started only because the Father believed the children were unsafe in the Mother’s care and that Y, in particular, was not coping with Mr Gallagher’s parenting approach.
I find it unlikely that if the Mother complies with these Orders, further proceedings will be instituted by either party.
Any other fact or circumstance that the court thinks is relevant
I have nothing to add under this factor.
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 making 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.
I have nothing to add under this factor.
Parental Responsibility
Each party seeks an order for equal shared parental responsibility, supported by the Independent Children’s Lawyer, though the Mother seeks a sole parental responsibility order in relation to the selection of each child’s high school. The Independent Children’s Lawyer supports an equal shared parental responsibility order and I am satisfied it is in the children’s best interests for the order sought to be made without the condition sought by the Mother. Despite the issues between them from time to time, particularly in relation to Mr Gallagher’s treatment of Y, I find that the parties have generally cooperated in relation to issues concerning the children, each recognising the importance of the relationship between each child and the other parent. While the parties’ communication has at times been poor, I am satisfied that the parties have the capacity and motivation to continue to cooperate in the future in matters relating to the children. I find no evidence to support the Mother’s application for a sole parental responsibility order in relation to the choice of each child’s secondary school. I have therefore made an order for the parties to have equal shared parental responsibility.
When an order is made for equal shared parental responsibility, section 65DAA(1) requires the Court to consider whether making orders that the children should spend equal time, or if not equal time, substantial and significant time with each parent would be in the best interests of the children and whether such an arrangement is reasonably practicable[24], having regard to the factors set out in section 65DAA(5). These factors include the distance between the parties’ homes, the parties’ capacity to implement such an arrangement, the parties’ capacity to communicate and resolve any differences between them, the impact such an arrangement would have on the children, and any other matter the Court considers relevant.
[24] Section 65DAA Family Law Act 1975. See also MRR v GR [2010] HCA 4
The requirement of reasonable practicality “requires a practical assessment of whether equal time parenting [or substantial and significant time parenting] is feasible”.[25] In this case, I find an equal time, or substantial and significant time arrangement, would be in the best interests of X and Y, but only if the parties lived in much closer proximity to one another. I find that the present travelling time of 1.5 hours between the parties’ homes imposes practical limits on the time the children can spend with the non-resident parent on school days.
[25] MRR v GR [2010] HCA 4
Determination
I agree with the solicitor-advocate for the Independent Children’s Lawyer that this is a finely balanced case. I also agree with Ms S’s view that if the parties lived in close enough proximity, the children could benefit from an equal time arrangement. However, given the distance between them presently, the children need to live in one home during the school week.
I find the Mother has demonstrated limited parental capacity. She spends very little time with the children during the school week. She was surprised to hear from Ms S that her decision to leave the children unsupervised before and after school was inappropriate and put them at potential risk of harm. I find she lacks the confidence necessary for effective parenting and has repeatedly failed to put the children’s needs ahead of her own wishes and needs. I find her heavy reliance on the advice of Mr Gallagher, misplaced. I find her inability and/or unwillingness to do what she thinks is right for the children, despite Mr Gallagher’s views, troubling. I remain concerned that, despite the evidence at hearing, the Mother may still fail to appreciate the significance of her poor decision making on the children.
I find Mr Gallagher has strongly held views about parenting X and Y, and does not defer to the Mother when his views differ from hers. I find that Mr Gallagher takes advantage of the Mother’s inability to stand up for the children against him. I find it likely that X and Y are aware that Mr Gallagher’s own children take priority, and that it is likely that the children are aware that Mr Gallagher’s views prevail. I find Mr Gallagher’s attitude to the children’s safety in leaving them unsupervised morning and afternoon, troubling. I find his expectations of the children inappropriate for their stage of development. I find Mr Gallagher’s treatment of Y in particular, shows a serious lack of insight into Y’s special emotional needs. While Mr Gallagher tells the Court he is willing to seek professional help with the Mother in relation to parenting skills, I find that Mr Gallagher has a high opinion of his parenting skills, given his perception of the success of his two sons, and I am therefore not confident that he will follow through with therapy when these proceedings have been finalised.
On the other hand, I find the Father is a loving, caring parent who empathises with his children and is genuinely concerned for their welfare in the Mother’s household. He believes the children would be happier, better cared for, and live a more stable life if they lived with him, and their maternal grandmother, who would look after them when the Father was at work. He believes the children would have greater social and educational opportunities if they lived with him. He is extremely worried about Y in particular, who he believes is anxious in the care of Mr Gallagher, and not well treated by him. I find that the Father had no intention of applying to the Court to have the children live primarily with him, until concerns were raised about their safety in Mr Gallagher’s home. I am satisfied the Father appreciates the substantial adjustment the children would have to make, if moved to his primary care and that he would take steps to assist the children to make that adjustment. However, I find it noteworthy that the Father had done little to prepare for his proposal that the children live with him. He had not made direct inquiries of the school X would attend, and could not recall its name; he had not investigated professional services to help Y. The Father recognises the importance of the children’s relationships with the Mother and tells the Court he would want the children to spend 3 out of 4 weekends with the Mother, possibly even every weekend from after the conclusion of the Mother’s work on the weekend until Sunday evening, if the children were to live with him during the week.
As submitted by the solicitor-advocate for the Independent Children’s Lawyer, the Father is untested as a primary parent. He has not been a full time primary carer with all the responsibilities that go with it. He has not experienced Y’s challenging behaviour, and has not established that he could manage this.
Given my findings, I have given serious consideration to changing the children’s place of residence to the Father in Sydney. I accept the Father’s counsel’s submission that the children would see more of the Mother if they lived with her on weekends and would have more quality time with her on weekends. I accept counsel’s submission that the maternal grandmother is available (with the exception of the 3 month period she will be overseas) to care for the children day to day and that Y could return to his old school.
However, given the children have always lived primarily with the Mother, Ms S’s concerns about the emotional impact on the children of such a change, and the disruption a move would mean to their schooling, particularly X who is a school leader in her final year of primary school, and who is looking forward to high school, I have decided to follow the recommendation of Ms S, supported by the Independent Children’s Lawyer, and leave the children with the Mother, on certain conditions. I accept Ms S’s opinion that the best outcome would involve the Mother changing her work routines so she could better support the children’s daily routines and the Mother and Mr Gallagher obtaining professional assistance for Y and for their parenting approach.
I have imposed specific conditions on the Mother with which she must comply if the children are to remain in her primary care long term. The Mother must seek input from a child and family professional regarding the parenting approaches, routines and decision-making used in her household, and use her best endeavours to engage Mr Gallagher in this process. She must engage Y in appropriate therapy. If the Mother fails to comply with the orders I have made, and continues to passively accept Mr Gallagher’s parenting approach, there remains a real possibility that, despite the disruption such a move would cause them, the children will be moved to the Father’s primary care.
The children will spend frequent time with the Father so he can monitor the children’s welfare and progress in the Mother’s home. Ms S recommended 2 out of 3 weekends or 3 out of 4 weekends. The Independent Children’s Lawyer recommended 3 out of 4 weekends. I have decided that the children will spend 2 out of 3 weekends with the Father to enable them to develop their local friendships which I am satisfied will become increasingly important to them as they get older. The children will also spend one afternoon/evening meal a week after school with the Father, and half school holidays.
In December 2012, the Mother will be required to provide the Father and the Independent Children’s Lawyer with independent evidence of her compliance with the orders concerning the children’s supervision, Y’s therapy, her own therapy and the extent of Mr Gallagher’s participation. If the Mother fails to do so, the Independent Children’s Lawyer will be required to relist the matter. The Father will, in these circumstances, be given liberty to make an application to vary these orders, such that the children change their place of residence. However, if the Mother does provide satisfactory independent evidence of her compliance with these Orders in December 2012, and there is evidence that she has markedly improved her parenting approach, and actively encouraged Mr Gallagher’s participation in the process, as ordered, these orders will not require review.
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 one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Sexton FM
Date: 19 June 2012
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