Barker & Hudson
[2022] FedCFamC1F 864
Federal Circuit and Family Court of Australia
(DIVISION 1)
Barker & Hudson [2022] FedCFamC1F 864
File number: BRC 14246 of 2019 Judgment of: GILL J Date of judgment: 9 November 2022 Catchwords: FAMILY LAW – CHILDREN – Where both parents agree for equal shared parental responsibility and for the children to live with the mother – Where the remaining issues in dispute were significantly narrowed to the frequency and duration of time spent with the father and ancillary orders – Previous history of child refusal – Recent improvement – Where the best interest of the children is the continuation of current arrangements. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA Cases cited: Jollie & Dysart [2014] FamCAFC 149
Marsden & Winch (No 3) [2007] FamCA 1364
Mazorski v Albright (2007) 37 Fam LR 518
Phillips & Hansford(No 2) (2019) 60 Fam LR 160
Division: Division 1 First Instance Number of paragraphs: 176 Date of hearing: 1–3 November 2022 Place: Canberra Counsel for the Applicant: Mr Nehmy Solicitor for the Applicant: Stuart Family Lawyers Counsel for the Respondent: Mr Drysdale, KC Solicitor for the Respondent: Hopgood Ganim Lawyers ORDERS
BRC 14246 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BARKER
Applicant
AND: MS HUDSON
Respondent
order made by:
GILL J
DATE OF ORDER:
9 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The parties shall have equal shared parental responsibility for the children of the marriage, X, born 2008 (“X”) and Y, born 2010 (“Y”) (“the children”).
2.The children shall live with Ms Hudson, (“the respondent mother”).
3.During school term the children shall spend time with Mr Barker, (“the applicant father”) each alternate week from the conclusion of school (or 3.30 pm Friday) (in Week One) until the commencement of school (or 8.00 am Monday) (in Week Two).
4.The children’s time with the applicant father pursuant to Order 3 herein shall:
(a)Be extended to the commencement of school/8.00 am on Tuesday (in Week Two) in the event the Monday is a non-school day;
(b)Commence from the conclusion of school or 3.30 pm on Thursday (in Week One) in the event Friday is a non-school day.
5.For the purposes of Order 3 herein, the first week of each school term shall be Week One.
6.The children shall spend time with each parent during school holidays for one half of each school holiday period as agreed between the parties in writing, and failing agreement as follows:
(a)During the first half with the applicant father in even numbered years and with the respondent mother in odd numbered years;
(b)During the second half with the respondent mother in even numbered years and with the applicant father in odd numbered years;
(c)With each school holiday period to be defined as from midday on the day after the last day of school term until midday on the day two days before the start of the next school term, with half of the school holiday period to be determined as follows:
(i)In the event the school holiday period is for an even number of weeks, then the middle day of the school holiday period is midday on the Saturday falling closest to the mid point of the holiday period; and
(ii)In the event the school holiday period is for an odd number of weeks, then the middle day of the school holiday period is midday on the Wednesday falling closest to the mid point of the holiday period.
7.The children shall spend time with each parent on special days as follows:
(a)With the applicant father on Fathers’ Day weekend from the conclusion of school or 3.30 pm on Friday until 8.00 am or the commencement of school on Monday; and
(b)With the respondent mother on Mothers’ Day weekend from the conclusion of school or 3.30 pm on Friday until 8.00 am or the commencement of school on Monday.
8.Changeover shall occur at school as appropriate or otherwise the applicant father shall deliver the children to the respondent mother’s home at the conclusion of his time and the respondent mother shall deliver the children to the applicant father’s home in Brisbane at the conclusion of her time, or changeover shall occur at such other location as agreed between the parties.
9.The children shall spend such further and other time with each parent as agreed between the parties in writing.
Schooling
10.The parties shall each be at liberty to attend any event at the children’s school at which parents are welcome to attend or invited to be involved.
11.The parties shall each be at liberty to obtain from any school the children attend all reports, photographs, newsletters and notices that a parent would ordinarily be entitled to receive.
12.Where reasonably practicable, each parent shall notify the other of all scheduled appointments they have with any teacher or staff at the children’s school at least 48 hours prior to the appointment.
13.For the purposes of the immediately preceding order, in the event the other parent does not attend the appointment in person or via telephone, Zoom or other electronic means, within 48 hours of the appointment the attending parent shall provide the other parent with details of what was discussed during the appointment in writing.
14.Prior to enrolling the children to participate in any extra-curricular activity which falls during their time with the other parent, the enrolling parent shall first consult with the other parent.
Medical
15.Save in the event of an emergency, the applicant father and respondent mother shall each obtain the other parent’s written consent prior to the children’s attendance upon any specialist medical, specialist dental or any mental health professional.
16.Where reasonably practical, save in the event of an emergency, the parents shall notify each other of all scheduled medical, orthodontic and mental health appointments at least 48 hours prior to the appointment, including the full name and contact details of the relevant professional.
17.For the purposes of the immediately preceding order, in the event either parent does not attend the appointment in person or via telephone, Zoom or other electronic means, the parent who accompanied the children to the appointment shall provide to the other parent details of the advice received during the appointment within 48 hours in writing.
18.The parties shall as soon as practical inform the other of any serious illness or injury sustained by the children or either of them while in their care (including mental illness) and further provide any particulars of any treatment received by the children together with the name and address of the treatment provider and/or location at which they are a patient.
19.The parties shall each be at liberty to liaise with any medical or other professionals involved with the children and obtain all information and documents ordinarily made available to parents.
20.Prior to either child attending upon any medical, dental or mental health professional, the parent taking the children to the appointment shall provide the relevant professional with the other parent’s mobile phone number and email address, and request that the other parent be listed as a person entitled to information about the children’s health and copied into all correspondence.
Communication
21.The children may communicate with the mother and father at such times as they may reasonably request, with the parent who the children are with to reasonably facilitate such by telephone or other electronic means.
22.In addition to the above order, for a period of six months from the date of these orders, the children communicate with the parent that they are not with via WhatsApp Video call each Tuesday, Thursday and Sunday at 7.00 pm (in the timezone where the children are located), and for the purpose of such communication:
(a)The parent wishing to speak with the children shall initiate the call to the other parent’s mobile phone;
(b)The parent caring for the children shall ensure the call does not coincide with meal time and that devices the children have access to, including but not limited to iPads, computers and televisions that are not required for the call, are switched off prior to and during the video call;
(c)The parents shall afford the children privacy for the duration of their call with the other parent.
23.Within 21 days of the date of Final Orders, the parties shall do all such acts and things necessary to attend upon Ms M, Parenting Coordinator with respect to the implementation of the Final Orders, and prior to the first session the parties shall provide to the Parenting Coordinator a copy of the two Family Reports and a sealed copy of the Final Parenting orders.
24.For the purposes of Order 23 herein, the cost of the joint sessions shall be met by the parties equally and individual sessions shall be met by the party having the session.
25.Each party, their servants and agents be and are hereby restrained from denigrating, insulting, rebuking or otherwise speaking negatively about the other party or members of the other party’s family to or in the presence or hearing of the child or members of the other party’s family, or, so far as is reasonable, from allowing another person to do so.
26.Each party shall advise the other of changes to their residential address and/or mobile telephone numbers within 24 hours of any such change.
NOTATION
A.It is noted that final orders were made by consent in relation to international travel issues on 2 November 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barker & Hudson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
INTRODUCTION
The applicant father, Mr Barker, born 1972 and the respondent mother, Ms Hudson, born 1971, commenced their relationship in late 2003, married in mid-2008 and separated (but remained living under the one roof) in March 2019. In April 2019, the mother left the family home in Country C with the children, relocating to Brisbane.
Following the parties settling of their property dispute at the commencement of the trial, the dispute that remained was in relation to the parenting arrangements for the two children of the relationship, X (“X”), born 2008, and Y, (“Y”) born 2010.
The parenting dispute was limited, in that the parties agreed that the mother would retain the primary care of the children and agreed that parental responsibility should be equally shared. The parties also agreed on a significant number of ancillary orders. The dispute then centred upon the arrangements for X and Y to spend time with the father.
Orders sought
At the end of the trial, the parties indicated their agreement to a large number of orders sought. There remained some areas of disagreement. Principally, the disagreement was as to whether the children should spend time with the father each alternate weekend from after school Friday until the commencement of school the following Monday, or whether the children should spend time with the father three weekends per school term from after school Friday until Sunday evening. The parties were generally agreed on school holidays, and at variance about electronic communication. Minutes identifying the areas of agreement and disagreement are annexed to this judgment.
Documents relied upon
Applicant Father
The applicant father relied upon the following:
(1)Father’s Third Further Amended Initiating Application filed 4 October 2022;
(2)Father’s Affidavit of Evidence in Chief filed 7 October 2022;
(3)Father’s Affidavit in Reply filed 18 October 2022; and
(4)Affidavit of Mr B (Family Consultant) filed 6 September 2022.
Respondent Mother
The respondent mother relied upon the following:
(1)Mother’s Affidavit of Evidence in Chief affirmed and filed 4 October 2022;
(2)Mother’s Affidavit in Reply affirmed and filed 18 October 2022; and
(3)Further Amended Response of Ms Hudson filed 25 October 2022.
General background
During the relationship, the mother was the primary carer for the children, the father having work that saw him frequently away from the home. The father’s work also saw the family living and travelling overseas, as follows:
(a)late 2006 the parties relocated to City D, Country C;
(b)mid-2013 the parties and children relocated from City D to Country E;
(c)late 2014 the parties and children relocated from Country E to Country F; and
(d)mid-2017 the parties relocated from Country F to Country C.
Following the parties’ separation in 2019, they disagreed as to the arrangements for the children, but after a short period agreed by early 2019 that the mother would relocate with the children to Brisbane, the father remaining working in Country C.
Shortly thereafter, the father made arrangements to return to Australia, with his then primary place of residence being a home near City H that the parties had previously acquired. At that stage, his work still required significant amounts of overseas travel.
The arrangements for the children to spend time with him were at that stage heavily reliant on the children and father being able to travel. Unfortunately, it was at about this time that the COVID-19 pandemic resulted in significant travel restrictions, making overseas and interstate travel both difficult and unpredictable.
The arrangements to spend time with the children laboured under these difficulties and uncertainties. Importantly, difficulties also emerged in the parties’ inability to communicate or to cooperate, rendering the children’s time with the father an even more difficult prospect. It also appears that the children struggled to some degree with the various arrangements.
However, the mother accepted that the children’s time with the father, incorporating holiday and weekend time, prior to the orders of November 2021, generally went well.
In November 2021, a time when the restrictions and difficulties with travel were significantly easing, the parties entered into interim consent terms in relation to the children, in the context where the father had also retained work in, and partially relocated to Brisbane. The father is generally in Brisbane eight days per fortnight.
The consent orders provided for the children to spend alternate weekends during term time from Friday after school until Monday at school with the father, and to maintain arrangements for half school holiday time with each parent. Arrangements were also made for the children to spend time with the father without their sibling on alternate Thursday evenings, although such has only occurred once with Y and not at all with X, the parties abandoning it as impracticable.
Whilst it may have been anticipated, with the easing both of the need to travel and of the easing of travel restrictions, that the time for the children with the father would then be plain sailing, a number of difficulties emerged that have formed the focus of this trial, primarily related to reluctance or refusal on the part of the children to the arrangements to spend time with the father. Further, the mother says that on almost every occasion since then the children have messaged her saying that they want to come home early.
The focus during the trial was, reasonably, upon what has occurred since the entry into the November 2021 orders. It is that period that speaks to the current circumstances of X and Y, and also as to how future arrangements may bear upon them. That period likewise forms the focus of this judgment.
Principles
The paramount consideration in determining what parenting order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of X and Y. Those are to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act and, where an order for equally shared parental responsibility is made, following the reasoning process set out at s 65DAA of the Act.
The objects and principles contained at s 60B of the Act provide that:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) 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
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It may be readily recognised that, in any given case, the objects and principles will not all necessarily point in the same direction.
In the light of those Objects and Principles, to determine best interests, the Court is required to evaluate the s 60CC considerations to the extent that they are at “issue in the proceedings.”[1] The considerations are to be assessed to the extent that they are “relevant to the particular circumstances of the child.”[2] This calls for a focused examination of the considerations that arise in the individual case. The considerations that require closest attention can usually be identified from the matters that the parties ultimately placed emphasis upon in the trial.
[1] Phillips & Hansford(No 2) (2019) 60 Fam LR 160 at [43].
[2] Jollie & Dysart [2014] FamCAFC 149 at [45].
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
Prominent amongst the considerations are the two primary considerations, which in large part reflect the emphasis of the Objects. They focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations.
In Marsden & Winch (No 3),[3] Warnick and Thackray JJ observed the prominence of the primary considerations, such that a primary judge is:
78. …of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.
[3] [2007] FamCA 1364.
However, they also noted that the primary considerations are to be considered as part of the suite of considerations that includes the additional considerations:
77. …whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
The primary considerations, described as the “twin pillars” upon which the considerations rest by Brown J in Mazorski v Albright,[4] frequently subsume a number of the additional considerations. For example, the additional consideration at s 60CC(3)(j) that concerns family violence involving a child or member of the child’s family will often form a part of the primary consideration relating to the need to protect a child from family violence.
[4] 37 Fam LR 518.
Similarly, and noting Warnick and Thackray JJ’s analysis in Marsden & Winch (No. 3), that the Act places focus, not on a meaningful relationship as an end in itself, but rather in terms of the benefits to a particular child of a meaningful relationship with a particular parent, the nature of the child’s relationships (s 60CC(3)(b)) and parenting capacity (s 60CC(3)(f)) will often comprise a part of this consideration.
The key issues in this case relate to the benefits of meaningful relationship with the father and, allied to that, the nature of the relationship with the father, his capacity to provide care for the children, the children’s characteristics and the mother’s capacity and willingness to foster, or to undermine that relationship. Important in their own right, and also entwined with the above issues are the views of each of the children, particularly given their ages and stages of development.
Issues arising since entry into the consent orders of November 2021
The entry into the consent orders occurred shortly prior to the father commencing his work in the Brisbane area. The children spent significant time with the father over the Christmas break of 2021–2022, travelling away with him, prior to commencing the regular fortnightly time under the orders.
The first significant difficulties following the entry into the consent orders that was identified by the mother and father related to the time on the weekend of 11 February 2022. The mother described this as the point in time when the children commenced to spend time in accordance with the new regime. She says that the children were then anxious prior to each alternate weekend.
The mother asserts that Y was reluctant to go to school on the day of handover. She says that the father was not taking calls from the children in the lead-up to the time. The mother says that the children were saying to her, in the lead-up, that they wanted to return to her on the Sunday as the father did not know what needed to be done for school.
The next difficulties arose in relation to the weekend of 11 March 2022. The mother says that Y said that he was not going to go with the father on the weekend. She says that Y expressed frustration that the father was not taking his calls, complaining that his father was not listening to him. Prior to the weekend, Y video called the father to say that he wished to return to the mother on the Sunday night.
The mother arranged for an urgent session with Mr G (a psychologist engaged to assist the children) for the Thursday prior to handover. Mr G emailed the father and advised that Y was prepared to go with the father and stay until Sunday although he may ask to return in the Saturday night.
The mother produces at annexure MH 11 of her affidavit filed 4 October 2022, the correspondence between the parties (from 10–12 March 2022) in relation to the potential early return of Y, commencing with the mother’s email asking the father to confirm, in response to Mr G’s advice, that he would return Y on the Saturday night.
The father asked the mother to advise of what had been said between herself and Y regarding this issue. He advised the mother that there were activities planned, that Y had access to his phone to contact the mother and it was up to Y and the mother to decide on their plans as to when Y would be picked up. The mother responded, reiterating that the father should advise her of Y’s drop off back to her home on the Sunday.
The father responded, again requesting the content of the mother and Y’s conversations regarding this, and that he understood that it was Y’s decision as to when to return to the mother, and that he did not want to contradict what the mother had said to Y. Accordingly, he said that Y would call the mother for pickup when he wanted to return home. The mother responded that she was happy for the handover to be on the Sunday.
It may be observed that the communications between the parents were uncooperative, ineffective, and productive of uncertainty as to what the arrangements would be.
Subsequently, on the Sunday evening Y, following a call to the mother, asked the father to forward the mother his address, which the father did (the father and children were staying at an AirBnB). The father continued to play with the children and then waited with Y in the driveway for the mother. When he later checked his phone, he saw that the mother had messaged him for clarification. The mother did not collect Y that evening. The father said that the evening with Y was relaxed, and when the parties again communicated later that evening, he advised the mother that Y would be staying for the evening.
The mother says that Y’s school messaged her the next morning to say that Y was unwell and should be collected. She says that on collection, Y was crying and shaking, saying that nothing had changed and it did not matter who he talked to. The father says that the school advised him that Y had COVID-19 like symptoms. The mother does not identify any specific complaint by Y in relation to the weekend or to his interactions with the father.
In early 2022, the parents and Y had a session with Mr G. The father recounts that in this session the mother asserted both that Y had been left in the driveway and that he had cried all night. The father asserts that Y confirmed that neither of these had been the case.
The next weekend was that of 25 March 2022. The father agreed in advance for Y to return to the mother on the Sunday, as he was to attend school camp on the Monday. On the Friday of pickup, the mother messaged the father and told him that Y was reluctant to go to school and clearly preferred to remain with her for the weekend. At about 2.00 pm the mother attended at the school to collect X’s bag (he having returned from camp).
Following collecting the children from school, the father took the children to dinner. During the trip the mother called to speak to Y, the father says in an angry manner. He gave the phone to Y who got out of the car to take the call. Y then explained that the mother had gone to the school to collect him. Y cried. Although the mother agrees that she had attended at the school she denied having told Y that she was there to collect him.
The mother said that X called her saying both that Y was upset and was hitting the father when the father got close to him. She said that Y called her, crying, saying he wanted to be picked up. The mother asked for the father to be put onto the phone, but the father refused to take the phone, saying he would not talk to the mother and telling the mother not to do this in front of the children. She said that Y was telling the father to tell the mother to pick him up. The mother told Y that the father had to ask for her help. The father said that he would speak to her later.
The mother then attempted to call the father a number of times, but he did not answer. She says that Y kept calling her. The mother accepted that her repeated calling on that afternoon aggravated the situation with the children. The father agreed to return Y to the mother, and they went for dinner then watched a movie while awaiting the mother. As the mother had otherwise planned to travel interstate, she then took Y interstate for the weekend.
In early 2022, the mother delivered the children to the airport to travel to be with the father for the school holidays. She described that they were crying. They, however, travelled with the father for the holidays. No further difficulty was identified with the school holiday time by the mother.
In early 2022, Y was due to spend a Thursday evening with the father. When the father arrived at the school to collect Y, Y told him that the mother was waiting at the school to collect him. Y went to his mother and did not return.
The mother says that when Y came to her, he was upset, saying that the father had been recording him, and that the father makes him feel “so guilty”. He said that he had told the father that he was going home with the mother. It remained unclear what Y was referring to in saying that the father was recording him.
The mother left with Y. She did not tell the father that she had done so. She accepted that her actions were in breach of the court orders, and that her conduct was wrong.
The father then messaged the mother who told him that Y was at home. The father remained at the school, and told the mother that she was in breach of the orders.
In early 2022, X emailed the mother asking her to call the police and saying that he wanted the father dead or in gaol, as the father had punched him in the arm and head. The mother said that she did not read the email until about midnight then telephoned the father who did not answer. The mother said that when she saw X at school on the following Tuesday, he ran and hugged her showing her red marks and small scratches on his arm. He said that it was “pretty bad” but that he did not want to talk about it. The father explained that he confiscated X’s computer as he (repeatedly) was playing games when he was meant to be doing homework. He said that X became angry and tried to snatch the computer and to pinch the father. He said that he returned the computer when X said that he wanted to contact the mother. The father denied punching X.
The allegation made by X was not pursued at trial. It should be noted that no part of the mother’s case suggests that the children are at risk of harm from the father.
The mother took X to see Mr G.
X then said that he did not want to go to the father’s home in the lead-up to the 6 May 2022 weekend. Y also became reluctant. However, they both went.
On the 3 June 2022 weekend, X emailed the mother to say that he had the “worst weekend ever” and that he wanted to come home because he wanted to go to sleep.
It remains unclear what the issue might have been.
The 19 June 2022 weekend is particularly prominent. The father asserts that he returned the children to school following the weekend and that Y was happy and relaxed, and told the father that he was excited for the school holidays.
The mother, however, describes that she received a call from the children at about midday on 19 June 2022. She says that Y said that X and the father had been arguing and fighting and that they both wanted to come home. X said that he hated the father, and that he would run away. The mother said that in the background she could hear Y telling the father that they wanted to go to the mother.
The mother asked X to put the father onto the phone, to which the father replied that he was not going to talk to the mother. The mother asserts that X and the father were yelling at each other.
X then started a video call, videoing the father who continued to refuse to speak to the mother. The father left the room and closed the door. X pursued the father with the phone. Y then threatened to run with away with X to a place where the mother could collect them.
X again approached the father with the phone, the father telling him to get it away from him and hang up as he was not going to speak to the mother. The father denies that he placed his hand in front of his face to prevent the recording. The interaction continued in the same manner and X asked the mother to record it to show Dr G .
The father explained that he did not speak to the mother as he wished to de-escalate the situation. It did not appear to be an effective means of de-escalation. X then called the mother and reiterated that he and Y were going to run away. The mother did not appear to attempt to dissuade him from this, rather telling them to stick together.
The mother then messaged the father, indicating that she was there to support everyone (it was not clear what this meant) and that she was considering calling the police. The father responded that the boys had become upset when he turned off the Wi-Fi.
Y again contacted the mother and asked to be collected, to which the mother replied that the father had to ask for her help and that the boys should stick together. The mother’s responses when the children asked to come home early were that she needed the father to call her to ask for help. The incident appeared to resolve without an early pickup.
The term 2 school holidays started a week later on 25 June 2022. The mother took the boys to the airport, but Y refused to get on the aircraft, causing his luggage to have to be taken off the plane.
The exchanges between the father and mother that followed centred on the father telling the mother that she needed to get Y onto a plane to his school holiday time. The father told the mother that it was her problem.
The father was cross-examined as to his telephone interactions with Y around this incident. He said that he was on the phone with Y when he told him that he had not boarded the plane. The father said that he spoke with Y in a comforting manner. He also said that he had called Y after he did not get onto the plane but that Y would not speak to him.
The following day the mother asked the father to call Y. The father replied to the effect that there would be plenty of time to talk when Y arrived for the holiday period. It may be observed that the father’s response was unlikely to improve the situation. Despite his response to the mother, the father said that he unsuccessfully tried to talk to Y over the next few days when Y and X were interacting.
At trial, the father accepted that the mother cannot physically make the children board a plane. He accepts that on occasion Y has refused to board the plane. He did not accept that the mother had made her best efforts to cause Y to board, later ameliorating his position to say that he was unable to comment on whether the mother had made her best efforts or not.
The mother arranged an urgent appointment for Y with Mr G. Y did not meet the father for the holidays. The interviews for the Family Report then took place on 12 July 2022.
In mid-2022, Y was due to spend time with the father. He said he did not want to, and that he did not want to attend school. He went to school but was sent home. The mother messaged the father to collect Y from her home. He however insisted that she take him to the school for handover. The mother returned Y to school at end of the day for handover. On the following Monday, the school rang the mother to collect Y as he was unwell. He told the mother he was tired as he had a “big weekend.” Again, no particular complaint about the time with the father was evident.
Some days later in mid-2022, there was a dispute over whether the father would collect Y from the mother’s home as he felt unwell. Y refused to go unless the father collected him from the mother’s home. The father attended the school for handover and declined to attend the mother’s home. The mother says that she took Y to sport the next day to hand him over to the father. The mother pointed out where Y was to the father, the father having difficulty locating Y. She says that the father walked away from her. The father denies that she offered to hand over Y. The father agreed that he attended the sports match, but says that he knew that he was unable to see Y after the game as he was taking X to his game. This perhaps reflects the awkwardness between the parents as seen by X.
The mother then offered the father to collect Y at any time from her home and he replied that he would meet her at the school. At 12.00 pm, the mother sent a message offering the father to pick up Y whenever it suits. The father replied that he could get to school for handover.
Handover did not take place. X spent the weekend from Friday to Monday with the father without Y.
The father explained that, as he had a motorcycle for transport, it was not suitable to collect Y if Y was unwell. He explained that if the mother dropped Y at the school, he would use an Uber. It remained unclear why this solution was not apt for a collection at the mother’s home.
The father described that on occasion when he has tried to collect Y from the mother’s home, Y has been highly resistant, on one occasion requiring the father to be present for a number of hours to effect the changeover. The father says that the neutral venue of the school works much better. The mother accepts that Y, who has the greater difficulties with transitions, transfers much better at school when the mother is not present.
In retrospect, the father now says that he could have handled the situation differently, and that he should have gone to the mother’s home to collect Y.
The standoff was representative of the difficulties between the parents.
The children next spent time with the father on the weekend of 12 August 2022. Both X and Y stayed with the father from Friday until Monday.
The children then spent time with the father on the weekend of 26 August 2022. Both X and Y stayed with the father from Friday until Monday.
The children planned with the father when they would see him over the Father’s Day weekend (4 September 2022). The father was critical of the mother for allowing the children to determine what time they would spend with the father on that weekend, also asserting that they were not otherwise in the mother’s care that weekend. It is not established that the children were not in her care.
It should be observed that the orders made no requirement for either Father’s or Mother’s Days. The arrangements for the children to spend time with the father on that weekend were additional to what was required by the orders. It should also be noted that the father, who had the children for the Mother’s Day weekend, did not make provision for them to spend time with the mother that weekend.
The father’s criticism of the mother in this respect is ill-placed. It does not reflect some defect in the mother’s parenting, but rather reveals an unreasonably critical approach by the father toward the mother.
On the weekend of 11 September 2022, the father says that the children told him that they wanted to return to the mother on the Sunday evening. He contacted the mother to arrange this, but the mother was unavailable and the children stayed until the Monday.
Y was due to play sport on the Saturday morning whilst in the father’s care. He did not want to play. The father was unable to persuade him to play. He did not play. Whilst a minor example, this functions as an illustration that both parents experience the difficulty of attempting to cause Y to do something that he does not want to do.
The term 3 school holidays were to commence on 17 September 2022. Changeover took place at the airport on 18 September. Y refused to get out of the car. Neither the mother nor the father was able to persuade Y to get out of the car and to board the flight. Y did not spend holiday time with his father, the father and X leaving without him.
Again, this incident provides strong illustration of the difficulty that confronts either parent should Y dig his heels in.
Y later explained to the mother that the previous two weekends had been “really bad.” He asserted that the father had been mean to him, making him feel guilty about what he had said in the Family Report interview, and that he did not like refereeing the father and X.
The father asserted that Y’s anxieties are multifactorial. In his oral evidence he described that they related to travelling long distances, his desire to be close to Suburb N (the suburb his school is in), and as to the activities to be undertaken, Y preferring more indoor pursuits.
In some contrast, the father described to the Family Report writer that Y was over-reliant on the mother, a position that he says persists. He described sibling issues, conflict in rules and environment and difficulties in transitioning as productive of Y’s anxiety.
The children spent time with the father from the Friday to the Monday of the weekend of 7 October 2022. The time appears to have passed without difficulty and the father and children engaged in activities together.
The children spent time with the father from the Friday to the Monday of the weekend of 21 October 2022. This was the last weekend before the trial of the matter.
Again, the time passed without difficulty, although X was resistant to going to school on the Monday. As part of the efforts to get him to school the father involved his sister, Ms J, by telephone. The mother alleged that X was promised a gaming computer, X having told her so, and also that the father was distressed and crying and had his sister call X.[5] The father said that he did not hear the conversation between X and Ms J, although he accepted that X was promised an electric skateboard.
[5] Affidavit of the mother filed 4 October 2022, paragraph 132.
This last incident, as lacking in detail as it is, demonstrates that there are both significant school refusal issues for X, but allied to that, it is difficult to get X to do that which he has set his mind against. It, at least, required the involvement of the father’s wider family.
The father observed that one of the particular difficulties that emerged in the weekend time with X was the large amount of homework that he had accumulated that required completion on the weekend. Following speaking to the school, the children’s weekend homework requirements have been reduced, which the father described has, in turn, reduced the stress between himself and X on the weekends. He described that prior to this change X had up to six hours of homework on the weekends, he having fallen behind.
An issue arose of Y being injured on this weekend. The father had told Y that if he was not alright at school, he should contact the father and the father would take him to hospital to have his arm checked for a break. The father did so, but did not alert the mother until at the hospital. Y had informed the mother about the injury the night before.
Some criticism was also made of the father riding to the school on his motorbike while the children travelled in an Uber. The father explained that they took it in turns to speak to him via a helmet intercom. Whilst the arrangement is a little odd, I do not consider anything turns upon it.
The mother accepted that the children had a good time with the father on these last two weekends.
In summary, since the interviews with the Family Report writer, there has been a single instance of Y not attending in accordance with the weekend arrangements. Y has refused to board the plane to spend time with the father for the last two holidays. The weekends have each been from Friday through to Monday. The mother has said that this has involved significant effort. Whilst the mother described that there has been anxiety each Friday prior to time with the father, and whilst there has been stress or tiredness on the following Mondays, the mother said that the times with the father have been “basically incident free.” She further described this as “brilliant - job done.”
The mother explained that, in the face of the arrangements currently working, she pursues a reduction in the time based upon the Family Report writer’s recommendations, and out of her concern that she may face refusal on the part of the children and be unable to comply with continuing orders for alternate weekends from Friday to Monday.
The Family Reports
To assist in identifying the children’s best interests, a Family Report was prepared by Family Consultant and social worker Mr B on 29 July 2020, along with an updated report on 6 September 2022. As part of this process the Family Report writer conducted face to face interviews and observations of the children and the parents.
It may be observed that in the giving of oral evidence the Family Report writer exhibited ambivalence about the future arrangements for the children, noting potential advantages and disadvantages arising with each party’s proposals, depending in large part on how the children coped with the different arrangements.
The first report
At the time of the first report in July 2020, the father was living between City H and Country C, with the mother and children living in City K. The children were having electronic communication with the father and spending school holiday time and some weekend time with him. The arrangements were disrupted in part due to the COVID-19 pandemic and travel restrictions. The mother reported that the children enjoyed spending time with the father.
In terms of background it was reported that X had a diagnosis of ADHD and had been seeing a psychologist, Mr G. The mother reported being diagnosed with clinical depression and anxiety in 2011. She was prescribed and took medication for a number of years until 2018. The father reported that at about the time of separation he sought assistance for his mental health and was prescribed antidepressants. He took these for a short period of time.
The parents were communicating to each other by email and WhatsApp, rather than by direct verbal communication.
The observations took place under circumstances where due to the COVID-19 restrictions the father had not spent time with the children for about two months. The children were observed to be excited about spending time with their father. The interaction between the children and the father appeared familiar, relaxed and good humoured.
X described that he had been upset with the parents separating. Under circumstances where the father was often overseas he described “we’re not getting to spend time together. We are starting not to like dad because we can’t spend time with him.” He described the father positively and also observed that his father should not try so hard because “he is fun enough.” He also described his mother positively but hoped that she would have eased off restrictions on his use of a laptop.
Y described the thing that he liked most about his father was that his father gave him presents. In contrast, he described that he liked his mother because she did not yell like the father and did not lie. He said “I feel like dad’s lying, but I’m not sure.” He also described that his mother told him that it was important that he spend time with his dad and “she’s not that mad with dad.”
The Family Report writer noted that the children had struggled with some changeovers, and that it made sense for the changeovers to occur without both parents being present. He thought that both children had been exposed to the conflict by the parents but that they were “reasonably resilient and coping with the inevitable changes to their lives.”
The Family Report writer considered that appropriate arrangements for the children would involve predictability and certainty for the parents and children, frequent and regular time between the children and the father, and for the father to be able to exercise his responsibilities to the children from a distance. At that stage, he recommended that the children spend long weekends with the father along with a further eight weekends Friday to Sunday, along with the sharing of school holidays. He also recommended regular electronic time, two to three times each week.
The second report
Significant change had occurred by the time of the second report in September 2022. Living arrangements had changed such that the father was living between Victoria and Brisbane. The father was spending eight days per fortnight in Brisbane, occupying reasonably consistent Airbnb premises. This formed part of his arrangements following advice from the children psychologist in terms of increasing consistency. From the beginning of 2022, the children commenced spending alternate weekend time with the father during school terms from after school on Friday until before school on Monday. They continued to share school holidays between the parents. The execution of these arrangements has been described above.
However, inconsistencies had developed. For example, Y refused to go with the father for the mid-year school holidays and ceased spending weekend time with him and engaging in electronic communication with him for a period following those holidays. At the time of the interviews for the report, Y had not communicated with or spent time with the father for about a month.
The father identified to the Family Report writer that Y struggles with transitions, and also with lengthy travel. The mother further described that sometimes the children refused to go to school on a Friday, as they did not wish to go to their father.
X was engaging in school refusal, often complaining of feeling unwell, missing classes and failing to show up for tutoring. He has been struggling to attend school on a Monday morning.
The parents still communicated via email and WhatsApp. The father said that he would like to be able to speak to the mother, the mother asserted that the father did not want to speak with her, and also that the father’s communications were lengthy. The father described that he had sent pictures of the children to the mother, but that she took this as boasting, rather than our communication of what the children were doing.
The mother alleged that the father does “everything to manipulate, control and dominate the situation.”[6] She alleged that he is inflexible and threatens her with contravention applications.
[6] REFERENCE TO THE FAMILY REPORT
The children each brought notes with them to the session with the Family Report writer, and described to the Family Report writer that his role was to be their “words” in court.
X read notes to the Family Report writer. He described that there were things that he was happy with at present, such as spending each second weekend with, and school holidays with the father. At that stage the father’s application was for week about time and X described having misgivings about it. X said “I like spending time with Dad but I like spending most time with Mum.”[7] He also said maybe the current weekends could be shortened so that he goes home on a Sunday night.
[7] Family Report dated 6 September 2022, paragraph 102.
X also said that “you never know if Dad is going to be happy, angry or stressed or crying… you see him and think - what is he going to be?”[8]
[8] Family Report dated 6 September 2022, paragraph 95.
X described that he likes that his mother is calm, although he feels that she is not strict enough with Y.
In relation to the school holiday visit that occurred without Y, X described that he wanted to speak to the mother but at times the father refused which resulted in X calling her in secret. X was critical of the father not speaking to the mother. X described that he felt lonely when Y refused to go to the father’s place with him. He does not understand why Y is so resistant, describing that the father has worked out what it is that Y likes to do.
X has observed that the dynamics between his parents is “awkward”. In particular, he says it feels a bit awkward seeing his parents in close proximity and his mother seems unsettled when the father shows up to things unannounced. X also said it would make a difference to him if the parents were on better terms. His three wishes were that his parents are not weird around each other, they stop complaining about money, and that Y would like to visit the father.
As with X, Y had a piece of paper that he wished to read from the start of the interview. He said that he did not want to hurt his father’s feelings and that at times his father would be sad and upset and that Y would feel guilty. He described “firstly I’m happy being with Mum. I love the time with Mum. It’s awesome. I sometimes am happy being with [X]. Sometimes.”[9] He also described that alternate weekends were a struggle, saying “I have nearly no choice,” describing that if he does not want to go the father collects him from school in any event.
[9] Family Report dated 6 September 2022, paragraph 107.
Y described that he wanted more flexibility in the electronic communication with the father so that it did not have to happen at exactly the same time. He also wanted arrangements to change so that if he did not want to spend time with someone, he did not have to, without being made to feel guilty.
In relation to his reluctance to spend time with the father, Y reported that holiday time was good 90 per cent of the time, but if he wanted to return to the mother, the father would cry and make him feel guilty. He described that things are more relaxed with her mother and it is easier to have friends over. What Y likes most about the mother is the peace, and the mother tries to make everyone happy. He describes that she does “stuff” for the children and they do “stuff” for her.[10] What he likes most about the father he tries “Really hard to make us happy” but that he would like him to be more flexible.[11]
[10] Family Report dated 6 September 2022, paragraph 115.
[11] Family Report dated 6 September 2022, paragraph 116.
Like X, he wanted to change that the father would not talk to the mother. He described that no matter how much the mother tried, the father would not talk to her. He described an instance where recently he and X were upset when with the father and wanted to go back to the mother. The mother told him that he could return but the father needed to approve it. When they asked him to talk to the mother he said that she could email. He described amazement that the parents interacted with each other positively in front of the Family Report writer. He thought that things would be a lot better if the parents got on with each other and that it would make a lot of difference to him. He also explained that the father took all the money when they separated and that the mother had to keep asking the father for money. He also described that when the parents contradicted each other he did not know who to believe.
Y did not see anything good about a decision that he and his brother spend more time with the father. He described it as his “worst nightmare.”[12] Given his limited description of adverse features of staying with the father this appeared to be a disproportionately extreme statement.
[12] Family Report dated 6 September 2022, paragraph 118.
Y stated that “Dad cries and makes us feel guilty” and describes his father’s “non-stop guilt trips” as “annoying.” Instead, he wants the father to be “more peaceful and more flexible.”
The three wishes which Y seeks are for the mother not to be broke anymore, not to worry about money problems, and for there to be peace in both houses.
If the arrangement of alternate weekend and holiday time remained the same, he considered that at times he would feel happy and at times he would feel sad about it. He, however, considered it to be annoying. He was positive about the notion that he and his brother spend less weekend time with the father during school terms, even though he considered that weekend time with the father was fun. Y also expressed feeling fed up with the lack of certainty over the living arrangements.
Describing his refusal of holiday time with the father in the middle of the year he said that sometimes he did not want to go on a plane and that he would “chuck a tanty” and the mother could not make him go.[13]
[13] Family Report dated 6 September 2022, paragraph 120.
The children were observed to happily remain with the father while the Family Report writer interviewed a mother. Later Y described that he wanted to go to his mother and also said that he did not want to go to the father’s home for the weekend. When the father said that he had not seen him for a long time and wanted to see him Y asked “why don’t I get a choice?”[14]
[14] Family Report dated 6 September 2022, paragraph 86.
The children were also observed with the mother and positively interacted with her.
The Family Report writer observed that at the children’s ages they would become increasingly independent. He considered that as well as needing support they would also need space to try things out for themselves.
He considered that they have a strong sense of emotional connexion to the mother and an accompanying strong view of remaining primarily in her care. They felt insecure in their relationship with the father and did not want to spend more time with him. He observed that they consider him to be less calm predictable. The children are dissatisfied with the communication between the parents, and particularly the father’s refusal to engage more openly with the mother. Each wanted a greater say in the arrangements.
The Family Report writer considered that the parents were losing control of the structure of the arrangements for the children due to their conflict and failure to communicate. He considered that an arrangement that countered the strongly expressed views of the children who are becoming increasingly mature, held a risk that the children would simply refuse to spend time with their father or would return to the mother of their own volition. He recommended that the parents engage in counselling to address their co-parenting communication. He recommended liberal communication between the children in each parent and ongoing counselling support to the children.
In particular, in his written report, he recommended a structure of time between the children and the father that involved weekend time incorporating a return to the mother on Sunday evenings with such weekends occurring three weekends each school term, and the maintenance of half holiday time.
This position was, conditionally, ameliorated in his oral evidence. He considered that the children wanted certainty and that sustainability of the arrangements was important.
He observed that if the court considered that the children had become more settled, and were coping in the care of the father, then he would step back from his recommendation for a reduction in frequency. The weekend pattern leading up to the trial, that had seen both Y and X spending each alternate weekend with the father through term 2 and in the portion of term 3 leading up to the trial (save for one weekend where Y did not attend), gave the Family Report writer significant optimism that the current alternate Friday to Monday pattern could be maintained. He considered that this frequency also had greater potential (if sustainable) to normalise the children’s time with the father.
The Family Report writer still considered that a reduction in the term time may lead to a more sustainable arrangement on the basis that it was more consistent with the expressed wishes of the children. In particular, he thought that the return of the children on the Sundays may lead to a reduction in the pressure upon the children, reducing the pattern of resistance and leading to a more sustainable pattern. This is in the context that the children experience the mother as more peaceful and calm, the father as more unpredictable. However, he also conceded significant uncertainty as to whether this would be the case, observing that the reduction of time may or may not lead to sustainability.
The Family Report writer accepted that Y’s refusals were difficult to deal with. He observed that the mother cannot physically put Y onto the plane, and that Y knew this, and further that if he dug his heels in, he would not be forced to go. He considered that this was an attempt by Y to exercise control.
The best that he could identify to assist in this resistance was for both parents to forward plan the holidays and communicate such to Y. This requires a cohesive approach from the parents and the ongoing encouragement from the mother.
Discussion
There is now no contest between the parties in relation to parental responsibility. They agree to an order for equally shared parental responsibility. Such an order is appropriate for the best interests of each of these children, despite the difficulties that the parties will have in meeting their obligations pursuant to s 65DAC of the Act. The difficulties in communication will result in difficulties in their consultations with each other in relation to major decisions, and in their making of genuine efforts to come to a joint decision. However, they have generally successfully negotiated a series of major long-term decisions for the children since the end of their relationship. This has included decisions as to which country and which city the children might live in, which school they might attend, and major medical matters. It may be anticipated that there was some difficulty with these matters, although such was not canvassed in particular detail at the trial. However, their capacity to come to agreements about those matters and their joint commitment to an order for equally shared parental responsibility means that such an order is appropriate, as it benefits the children with the decision-making input of both of their parents into long-term decisions.
The effect of making such an order is that the pathway set out at s 65DAA of the Act becomes applicable. That pathway requires the consideration of an order for equal time. Appropriately, such an order was not pursued by either party, each accepting that such was not in the best interests of the children. It may be taken that their assessment of this matter is realistic, in particular, when the views of the children are taken into account. Rather, their joint position is that the mother should exercise primary care of the children. The contest remains then as to the structure of regular time between the children and the father. Consideration must then be given as to whether or not an order for substantial and significant time should be made in accordance with the definition at s 65DAA(3). That definition is as follows:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
It may be taken that each of the party’s positions incorporates involvement in the children’s daily routines and in occasions and events that are of particular significance to each child. The proposal of the father, it may be observed, allows a much greater involvement in the children’s daily routine, while the mother’s proposal is at the margins of “substantial and significant.”
The issue remains as to whether the proposal made by the father or that made by the mother, or some combination thereof, meets the best interests of the children. This question is to be answered on consideration as to how the views of the children, the nature of the relationships with each of the parents, the children’s personal characteristics and the capacity of each of the parents to provide care for the children interact to determine how their best interests may be fostered by a particular arrangement. This in particular involves consideration as to how those matters interact to point to orders that will provide for the benefits of meaningful relationship with the father and, in particular, how that will express itself in terms of frequency and duration of the children’s term time with the father.
A number of matters may be gleaned from the views expressed by the children. One is that it is X’s preference that the time that he spends with the father coordinate with the time that Y spends with the father. X, it appears, is content with the current frequency of alternate weekend time while Y’s view tends towards a reduction in that frequency. Each of the children has expressed a view that tends towards the reduction in the duration of the time to allow hand back to the mother on a Sunday evening.
However, Y’s views in relation to these matters were limited in the sense that he expressed that he would feel happy at times and sad at times if the current arrangement was maintained. Each of the children appear to consider that the time with the father is fun. It should be observed that the strongest expression of view was that of Y in his resistance to an increase in time with the father. It may be noted that an increase in time is not pursued or at issue in these proceedings.
The views of the children are particularly important as the evidence identifies that each has shown himself capable of refusing to comply with a parents’ directions. In X this has been seen in his resistance in respect of attendance at school and in Y in his refusal to travel to the father during school holiday periods. Although the Family Report writer considered that Y had reasonable maturity for his age, some concerns arise as to the maturity, particularly of Y, in his views noting his expression to the Family Report writer that he considered that he could “chuck a tanty” in order to secure his own way. This is characterised by the Family Report writer as Y’s efforts to maintain some form of control.
However, despite questions as to maturity, it must be recognised that weight should be accorded to the views of these children, respectively aged 14 and 12, in part due to their potential forcefulness in pursuing them, and in the potential for them voting with their feet should the orders be at wide variance with what it is that they wish for.
It should also be recognised that their views hinge in part on the differences in the households, the mother’s household being perceived as being peaceful while the father’s is perceived as being unpredictable. Under those circumstances, it could not be thought that the views are without rational basis.
Further impacting those views was the significance that the children gave to the conflict between the parents. Each expressed this as a prominent issue, and it might be thought that exposure to such conflict is contrary to what the children want.
The Family Report writer noted the significance in this context of the decision whether the children should return to the mother on a Sunday evening or return to school from the father on a Monday morning. He observed that acceding to the children’s currently expressed view may reduce the pressure upon the children making the arrangements more maintainable in the long-term. However, he also noted that returns on the Sunday night may be triggering in that the circumstances of the return (even where the parents would not come into contact with each other) operate as a stark reminder of the inability of the parents to communicate.
The children are acutely aware of the tension between the parents. This tension is alluded to by the references to the “awkwardness” and “weirdness” of the parent’s dynamic to the Family Report writer. The children both state that it would make a lot of difference to them if their parents were on friendly terms.
The Family Report writer also observed that, if maintainable, the preferential arrangement is to maintain what is in place currently. This carries with it a suite of advantages in that it has the capacity to more effectively normalise the time that the children spend with the father, allows for a less disrupted time with the father, and allows his involvement in a broader spectrum of their lives. It would enhance his participation in the children’s school lives and also in their preparation for their school lives, engaging in activities such as preparation of their lunches and making them ready for school. This arrangement more clearly represents an allocation of substantial and significant time with the father.
This seems of particular importance to develop the relationship between the father and children, which has been in the view of the Family Report writer, inconsistent, as the boys develop into adolescence, acquire independence but have an ongoing need for guidance.
Whatever decision is to be taken it should be acknowledged that it occurs in a dynamic and changing context. The changeable context is noted by the largely successful operation of the term time weekends since the family report interviews. Despite the contrary expression of views in those Family Report interviews by the children, it appears that the alternate weekend time involving Friday and Monday morning changeovers has worked effectively for them since that time. This points to a number of matters. One is that the circumstances concerning the children are changeable. The second is that the status quo is maintainable, at least in the short to medium term. The third is that even where the children have expressed contrary views they have accepted an arrangement in accordance with status quo.
While this is a matter that led to some optimism as to its effectiveness in the future on the part of the Family Report writer some caution needs to be sounded given the experience of Y in respect of holidays. It should be remembered that Y has refused to travel to the father for the last two sets of holidays. Perhaps there is a glimmer of hope for the holiday arrangements being effective in the future, not least because the parents agree to a continuation in those arrangements. Further optimism may be gleaned from the father’s expression that he understands the pressures upon Y occasioned by significant travel and by engagement in activities that Y does not like, and has expressed a change in his approach to embrace activities that Y likes better. It may be that if the father exercises school holiday time in the short to medium future in or around Brisbane that Y will be more amenable to compliance and that such arrangements will normalise.
It must be acknowledged that there are benefits with each of the party’s proposals, as well as detriments. Accepting that the recent positive trend does not result in certainty as to success into the future, that positive trend coupled with the advantages of maintaining the status quo as identified by the Family Report writer are matters that will be accorded greater weight in this decision determining the best interest of the children. The prospect of those benefits, coupled with less exposure to the conflictual relationship of the parents and greater participation by the father in the minutiae of the children’s lives, combined with a greater capacity to normalise the interactions with the father outweighs the reluctance expressed in the views of the children and issues concerning questions as to capacity due to the father’s emotional unpredictability. These result in a conclusion that the current arrangement, as proposed by the father, should be maintained rather than the reduction proposed by the mother.
Particular orders
The parties agreed in relation to a significant number of their ancillary orders, as shown in the annexed outline of their orders sought. They remained apart on some matters.
The father seeks orders where the children’s time with a parent is to occur outside of Brisbane. This would require, for example, the mother to deliver, at the father’s election, the children to either the Brisbane or City L airport when he is not in Brisbane for time with the children. The proposed orders of the father also include a provision for the event that a child does not board a flight, that the parent with the care of the child at the time of delivery to the airport being responsible to rebook a flight at their own expense.
If the parents are able to agree on such a course of action, in the context of the circumstances at the time of handover, taking into account the children’s responses at that time, then delivery to the airport is useful. But this will be left as a matter for agreement with the default arrangement not being so. It may be observed that, at least as far as Y is concerned, airport handovers have failed spectacularly of late. Neither the father nor the mother have been able to secure Y’s cooperation for an airport handover, in a context where the father concedes that the prospect of long travel is anxiety provoking for Y. This failure must be highly stressful for all involved at the time, and should be avoided, at least as a default arrangement. Perhaps in time the parties will be able to jointly identify that such an arrangement will work in the children’s best interests. That time is not now. The orders for airport changeover as proposed by the father should not be made.
Further, the parents differed about the return date to the mother at the end of the school holiday period where the children had been with the father for the second half of the holidays. The mother sought the children’s return the Saturday prior to school returning, the father sought the day prior to school returning. It is appropriate to ensure that the children have the opportunity to settle back in with the mother prior to their return to school. The order will provide for the return to take place two days prior to school returning. This both caters for the possibility that the school does not return on the Monday, but importantly eases the children back into school in a manner less likely to trigger anxiety than arriving back to the mother the day before school.
While it may be noted that this brings slightly less time with the father in the second half of holidays, that detriment is outweighed by the potential reduction in anxiety for the children.
The parties were also at odds as to whether a parent attending a scheduled medical or school appointment that the other did not attend should be required to provide details as to the advice received, in writing, within 48 hours of the attendance. If a parent does not attend (including electronically), while onerous, this process of keeping the other parent so informed is useful both for the parties making long term decisions together, but also in ensuring that they have an ongoing common understanding of the medical situation for each child. Such an order should be made. It should be understood that the onus is not on the attending parent to ensure that the other parent attends electronically, although to the extent that a parent does so may improve the goodwill and communication between the parents.
It was uncontroversial that where the Monday following the father’s weekend is a non-school day/public holiday that the time with the father should be extended. The weekend should be extended where either the Friday or the Monday is a non-school day.
The father also sought orders requiring the parties to seek the written agreement of the other parent prior to enrolling the child in an extra-curricular activity that will fall during time with the other parent. To the extent that this implies that the consent of the other parent is necessary to so enrol, such a restriction should not be imposed. To the extent that it merely requires a consultation, then it is appropriate that the parties interact with each other on the issue prior to such enrolment.
The parties were at odds about electronic communication with the children. The mother seeks that electronic communication occur in accordance with the children’s wishes. The father however seeks that there be a fixed arrangement of three calls per week occurring at 6.30 pm, locked in for the period of one year and then the arrangement reverting to the children’s wishes. The mother sought that if there is a fixed time that it be at 7.00 pm.
The orders at present provide for telephone calls at 6.00 pm. The father appeared highly critical of the mother if she did not facilitate the call at precisely 6.00 pm. He described that he has difficulties with calls not in accordance with the 6.00 pm requirement, for example if he was boarding a plane, or moving in and out of mobile phone reception. He, however, accepted that at times he has failed to make the call at the designated 6.00 pm time.
A particular example of difficulty in telephone communication occurred in late 2021, when X was attending a medical appointment, which the father was dialled into. The appointment was at 5.00 pm and stretched into the father’s time to call the boys. Accordingly the father missed his call at 6.00 pm and complained of such to the mother. This was indicative of a lack of flexibility on the part of the father in dealing with the exigencies of parenting.
It was suggested to the father that a flexible arrangement would be better. He asserted that prior to there being a fixed time for the calls, the calls did not happen.
Y, in particular, sought that there be flexibility in the electronic communication, rather than having fixed times.
It may be recognised that as the children become older, a fixed time for calls is unlikely to work well for them. Both parties recognise this, given the short period during which the father says that a more fixed arrangement should be in place.
It is appropriate that there be a blended arrangement, that both allows for the children to communicate with the other parent in accordance with their wishes (the father’s evidence being that he does so already), but also that for a fixed period following the commencement of these orders that there be fixed times for a parent to contact the children, to ensure that they are both available and that regular electronic communication occurs. Given that this will more often have to be accommodated by the mother, and incorporated around the other activities being engaged in by the children, the time should be as requested by her, being 7.00 pm in the time zone in which the children are present. The introductory period should be for six rather than twelve months to reduce the prospect of it being the subject of resistance on the part of the children.
The parties each sought non-denigration orders. Insofar as the orders impose obligation in respect of the children being exposed to third parties engaging in denigration of the parties or their families, the obligation will require that the parent take reasonable steps to prevent such exposure.
Finally, the parties will be obliged to keep each other up to date in respect of residential address and mobile telephone numbers, as such information is necessary for proper cooperation between the parties in respect of the children.
The parties were otherwise in agreement about the significant number of ancillary orders that they considered were of benefit in this matter.
Conclusion
Orders will be made as indicated above, providing for the equal sharing of parental responsibility, for X and Y to live primarily with the mother while spending alternate weekends from Friday to Monday with the father, and sharing the school holidays with both parents.
I certify that the preceding one hundred and seventy-six (176) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.
Associate:
Dated: 9 November 2022
Annexure 1
APPLICANT’S PROPOSED MINUTE OF ORDER
PARENTING
Parental Responsibility
1.The parties shall have equal shared parental responsibility for the children of the marriage, X born 2008 (“X”) and Y born 2010 (“Y”) (“collectively the children”).
Time spent
2.The children shall live with the Respondent Mother.
3.The children shall spend time with the Applicant Father each alternate week from the conclusion of school (or 3.30pm Friday) (in Week One) until the commencement of school (or 8am Monday) (in Week Two).
4.The children’s time with the Applicant Father pursuant to Order 3 herein shall:
(a)Be extended to the commencement of school/8am on Tuesday (in Week Two) in the event the Monday is a non-school day;
(b)Commence from the conclusion of school or 3.30pm on Thursday (in Week One) in the event Friday is a non-school day.
5.For the purposes of Order 3 herein, the first week of each school term shall be Week One.
6.The children shall spend time with each parent during school holidays for one half of each school holiday period as agreed between the parties in writing, and failing agreement as follows:
(a)During the first half with the Applicant Father in even numbered years and with the Respondent Mother in odd numbered years;
(b)During the second half with the Respondent Mother in odd even numbered years and with the Applicant Father in even odd numbered years;
(c)With each school holiday period to be defined as from midday on the day after the last day of school term until midday on the day before the start of the next school term; and
(d)With changeover to occur at midday during the holiday period or otherwise as specified in Order 9(c) herein; and
(e)In the event there is an uneven number of nights during the holiday period, the children shall spend the extra night with the Applicant Father in even numbered years and with the Respondent Mother in odd numbered years;
The children shall spend time with each parent on special days as follows:
(a)With the Applicant Father on Fathers’ Day weekend from the conclusion of school or 3.30pm on Friday until 8am or the commencement of school on Monday; and
(b)With the Respondent Mother on Mothers’ Day weekend from the conclusion of school or 3.30pm on Friday until 8am or the commencement of school on Monday.
8.Subject to Order 9 herein, changeover shall occur at school as appropriate or otherwise the Applicant Father shall deliver the children to the Respondent Mother’s home at the conclusion of his time and the Respondent Mother shall deliver the children to the Applicant Father’s home at the conclusion of her time, or changeover shall occur at such other location as agreed between the parties.
9.For the purposes of changeover, if the children’s time with a parent is to occur outside the state of Queensland:
(a)At the commencement of time, the parent who has care of the children shall deliver them to Brisbane or City L airport (at the other parent’s election) or such other airport agreed upon by the parties and facilitate the children boarding their flights;
(b)At the conclusion of time, the parent who has care of the children shall deliver the children to the airport and facilitate the children boarding their flights, and the other parent shall collect the children from Brisbane or City L airport (at the travelling parent’s election) or such other airport agreed upon by the parties;
(c)The children’s departing flight for changeover during the school holidays shall be no later than 12 noon;
(d)The parent who has care of the children outside of Queensland shall book, pay and be responsible for the cost of flights for the children; and
(e)In the event the children or either of them do not board a booked flight, the parent who had care of the children immediately prior to the missed flight shall book the child/children to fly on the next available flight at their sole expense and shall do all acts and things necessary to facilitate the child/children boarding the next available flight.
10.The children shall spend such further and other time with each parent as agreed between the parties in writing.
Care of the children
11.In the event either parent is unable to care for the children overnight for at least 2 consecutive nights, during a period when the children are in their care, they shall advise the other parent at least 5 days prior and give the other parent the first option to care for the children during that period, except for in the case of an emergency.
Schooling
12.The parties shall each be at liberty to attend any event at the children’s school at which parents are welcome to attend or invited to be involved.
13.The parties shall each be at liberty to obtain from any school the children attend all reports, photographs, newsletters and notices that a parent would ordinarily be entitled to receive.
14.Where reasonably practicable, each parent shall notify the other of all scheduled appointments they have with any teacher or staff at the children's school at least 48 hours prior to the appointment and in the event the other parent is unable to attend in person they shall facilitate the other parent’s attendance at the appointment via telephone, Zoom or other electronic means.
15.For the purposes of Order 14 herein, in the event the other parent is unable to attend the appointment, within 48 hours of the appointment the attending parent shall provide to the other parent with details of what was discussed during the appointment in writing.
16.Prior to enrolling the children to participate in any extra-curricular activity which falls during their time with the other parent, the enrolling parent shall first seek the written agreement of the other parent.
17.That each party be and is hereby restrained from permitting either child to not attend school unless recommended/requested by the school, save for when:
(a)The child is sick/unwell and has a doctor’s certificate; or
(b)The child is required to attend a specialist medical appointment which cannot be scheduled outside of school hours; or
(c)In the event of an emergency; or
(d)There is written agreement between the parties for the child to not attend school.
Medical
18.Save in the event of an emergency, the Applicant Father and Respondent Mother shall each obtain the other parent’s written consent prior to the children’s attendance scheduling any appointment and taking the children to attend upon any specialist medical, specialist dental or any mental health professional.
19.Where reasonably practical, save in the event of an emergency, the parents shall notify each other of all scheduled medical, orthodontic and mental health appointments at least 48 hours prior to the appointment, including the full name and contact details of the relevant professional, and shall facilitate the other parent’s attendance at the appointment via telephone, Zoom or other electronic means if that parent is unable to attend the appointment in person.
20.For the purposes of Order 19 herein, in the event either parent is unable to attend the appointment in person or via telephone, Zoom or other electronic means facilitated by the parent attending the appointment, the parent who accompanied the children to the appointment shall provide to the other parent's details of the advice received during the appointment within 48 hours in writing.
21.The parties shall immediately as soon as practical inform the other of any serious illness or injury sustained by the children or either of them while in their care (including mental illness) and further provide any particulars of any treatment received by the children together with the name and address of the treatment provider and/or location at which they are a patient.
22.The parties shall each be at liberty to liaise with any medical or other professionals involved with the children and obtain all information and documents ordinarily made available to parents.
23.Prior to either child attending upon any medical, dental or mental health professional, the parent taking the children to the appointment shall provide the relevant professional with the other parent’s mobile phone number and email address, and request that the other parent be listed as a person entitled to information about the children’s health and copied into all correspondence.
Travel
24.The children’s passports shall be held for safekeeping by the last parent who required them for travel and shall be provided to the other parent for the purposes of international travel 21 days prior to such travel.
25.The parties shall each do all such acts and things and sign all documents necessary to ensure the children are able to travel overseas or interstate, including but not limited to:
(a)Ensuring the children receive all necessary vaccinations;
(b)Obtaining any letters, certificates or documentation confirming the children’s vaccination or health status;
(c)Obtaining any necessary visas required for travel; and
(d)Ensuring the children each have a valid passport on which they can travel.
26.Each parent shall be at liberty to travel interstate and overseas with the children during the children’s time with them.
27.The travelling parent shall provide the other parent with no less than 60 days written notice of their intention to travel overseas with the children.
28.For the purpose of any overseas travel, the travelling parent shall provide to the other parent the following information no less than 28 days prior to the intended date of departure for overseas travel:
(a)Airline tickets;
(b)The address of all accommodation where the children will be staying;
(c)An itinerary; and
(d)Contact telephone number on which the children can be contacted while they are away.
Communication
29.That the children communicate with the parents via WhatsApp Video call at all such times as they reasonably request and otherwise each Tuesday, Thursday and Sunday at 6.30pm (in the timezone where the children are located) for a period of 12 months from the date of these Orders and thereafter in accordance with the children’s wishes, and for the purpose of such communication:
(a)The parent wishing to speak with the children shall initiate the call to the other parent’s mobile phone;
(b)The parent caring for the children shall ensure the call does not coincide with meal time and that devices the children have access to, including but not limited to iPads, computers and televisions that are not required for the call, are switched off prior to and during the video call;
(c)The parents shall afford the children privacy for the duration of their call with the other parent.
30.Within 21 days of the date of Final Orders, the parties shall do all such acts and things necessary to attend upon Ms M, Parenting Coordinator with respect to the implementation of the Final Orders, and prior to the first session the parties shall provide to the Parenting Coordinator a copy of the two Family Reports and a sealed copy of the Final Parenting orders.
31.For the purposes of Order 30 herein, the cost of the joint sessions shall be met by the parties equally and individual sessions shall be met by the party having the session.
32.Each party, their servants and agents be and are hereby restrained from denigrating, insulting, rebuking or otherwise speaking negatively about the other party or members of the other party’s family to or in the presence or hearing of the child or members of the other party’s family, or allowing any other party to do so.
Annexure 2
PROPOSED MINUTE OF ORDER
ON BEHALF OF THE RESPONDENT MOTHER/WIFE
PARENTING
1.That all existing parenting orders be dismissed.
Parental responsibility
2.The parties shall have equal shared parental responsibility for the children of the marriage, X born 2008 (“X”) and Y born 2010 (“Y”) (“collectively the children”)
3.That the father and mother shall be responsible for the day-to-day decision making concerning the children’s care, welfare and development whilst the children are in the respective care of each of the Mother and Father.
Time with the Mother and Father
4.The children shall live with the Respondent Mother.
5.that the children spend time with the Father as follows:
(a)Three weekends per school term by agreement and failing agreement from before school Friday to 5pm Sunday as follows:
(1)the second weekend of the school term;
(2)the fifth weekend of the school term; and
(3)the eighth weekend of the school term.
(b)The children shall spend time with each parent during school holidays for one half of each school holiday period as agreed between the parties in writing, and failing agreement as follows:
(1)During the first half with the Applicant Father in even numbered years and with the Respondent Mother in odd numbered years;
(2)During the second half with the Respondent Mother in odd even numbered years and with the Applicant Father in even odd numbered years;
6.that for the purpose of these Orders, the school holiday time shall be deemed to commence at 12noon on the Saturday immediately following the last day of the school term and conclude at 12noon on the Saturday immediately prior to the commencement of the new school term, with half of the school holiday period to be determined as follow:
(a)In the event the school holiday period is for an even number of weeks, then the middle day of the school holiday period is 12noon Saturday; and
(b)In the event the school holiday period is for an odd number of weeks, then the middle day of the school holiday period is 12noon Wednesday.
Changeover
7.Subject to Order 9 herein, changeover shall occur at school as appropriate or otherwise the Applicant Father shall deliver the children to the Respondent Mother’s home at the conclusion of his time and the Respondent Mother shall deliver the children to the Applicant Father’s home in Brisbane at the conclusion of her time, or changeover shall occur at such other location as agreed between the parties, with the home the Father is staying at that time to be deemed the Father’s home.
Special Occasions
8.The children shall spend time with each parent on special days as follows:
(a)With the Applicant Father on Fathers’ Day weekend from the conclusion of school or 3.30pm on Friday until 8am or the commencement of school on Monday; and
(b)With the Respondent Mother on Mothers’ Day weekend from the conclusion of school or 3.30pm on Friday until 8am or the commencement of school on Monday.
9.That in the event the “Special Occasions” orders are inconsistent with the “Time with Mother and Father” Orders, the Special Occasions orders are to take priority.
10.The children shall spend such further and other time with each parent as agreed between the parties in writing.
Communications
11.That the children communicate with the Mother and Father in accordance with their wishes and views, with the parent who the children are living with to facilitate the phone call.
Specific issues
12.The parties shall each be at liberty to attend any event at the children’s school at which parents are welcome to attend or invited to be involved.
13.The parties shall each be at liberty to obtain from any school the children attend all reports, photographs, newsletters and notices that a parent would ordinarily be entitled to receive.
14.Where reasonably practicable, each parent shall notify the other of all scheduled appointments they have with any teacher or staff at the children's school at least 48 hours prior to the appointment.
15.Save in the event of an emergency, the Applicant Father and Respondent Mother shall each obtain the other parent’s written consent prior to the children’s attendance upon any specialist medical, specialist dental or any mental health professional.
16.Where reasonably practical, save in the event of an emergency, the parents shall notify each other of all scheduled medical, orthodontic and mental health appointments at least 48 hours prior to the appointment.
17.The parties shall as soon as practical inform the other of any serious illness or injury sustained by the children or either of them while in their care (including mental illness) and further provide any particulars of any treatment received by the children together with the name and address of the treatment provider and/or location at which they are a patient.
18.The parties shall each be at liberty to liaise with any medical or other professionals involved with the children and obtain all information and documents ordinarily made available to parents.
19.Prior to either child attending upon any medical, dental or mental health professional, the parent taking the children to the appointment shall provide the relevant professional with the other parent’s mobile phone number and email address, and request that the other parent be listed as a person entitled to information about the children’s health and copied into all correspondence.
20.Within 21 days of the date of Final Orders, the parties shall do all such acts and things necessary to attend upon Ms M, Parenting Coordinator with respect to the implementation of the Final Orders, and prior to the first session the parties shall provide to the Parenting Coordinator a copy of the two Family Reports and a sealed copy of the Final Parenting orders.
21.For the purposes of Order 20 herein, the cost of the joint sessions shall be met by the parties equally and individual sessions shall be met by the party having the session.
22.Each party, their servants and agents be and are hereby restrained from denigrating, insulting, rebuking or otherwise speaking negatively about the other party or members of the other party’s family to or in the presence or hearing of the child or members of the other party’s family.
23.That the parties use their best endeavours to ensure that no third party denigrate the other party or the other party’s family in the presence of or hearing of the children.
24.That each party shall advise the other of changes to their residential address and/or home telephone numbers and/or mobile telephone numbers within 24 hours of any such change.
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