Beard & McCarthy

FAMILY COURT OF AUSTRALIA

BEARD & MCCARTHY

[2009] FamCA 737

FAMILY LAW – CHILDREN – Parenting orders – Parents unable to communicate about children – equal shared parental responsibility not in the best interests of children – Appropriate division of time between parents and children where one child holds mature views and a younger child does not – Determination of issue based on attitude to parenting and parenting responsibility – Permission to change primary school where child not happy – Injunctions in relation to involvement of child in religious issues

Family Law Act 1975 (Cth)

APPLICANT:

Mr Beard

RESPONDENT:

Ms McCarthy

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

5934

2007

DATE DELIVERED:

14 August 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

6 & 7 May 2009; 23 June 2009; 7 August 2009

REPRESENTATION

THE APPLICANT:

IN PERSON

COUNSEL FOR THE RESPONDENT:

MS AGRESTA

SOLICITOR FOR THE RESPONDENT:

PEARSONS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MR COMBES

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

AGRICOLA WUNDERLICH & ASSOCIATES

Orders

That for the purposes of these orders, the children referred to are L, a daughter born … October 1995 and J, a son born … January 1999.
That all existing parenting orders relating to the children are forthwith discharged.
That the wife forthwith be at liberty to enrol J at S Primary School in 2010 and that she:
(a)have liberty to provide to the Principal of the school a copy of these orders; and
(b)does not need the permission of the husband for such enrolment.
That the wife have sole responsibility for making long term decisions concerning:
(a)the enrolment of J at S Primary School in 2010; and
(b)the physical, emotional and psychological health of the children and for that purpose, the wife be solely responsible for the appointment of a general medical practitioner and dental practitioner for the children.
Any proposed decision by the wife concerning medical, dental or psychological treatment for the children, other than in the event of an emergency, shall be conveyed in advance to the husband by email, letter or through the communication book.
The conveyance of any proposed decision referred to in paragraph 5 shall include:
(a)the details of which professional or other person so referred to child;
(b)the name and address of the intended treating professionals; and
(c) the date of the appointments.
That the wife shall authorise all schools and health professionals to provide to the husband any necessary information that would normally be provided to a parent along with an authorization to confirm that the husband might attend at his own expense upon such health and education professionals at a time different to that of the wife unless she otherwise agrees save that in the event of a hospitalisation, the husband be at liberty to attend with the wife subject to any view to the contrary held by the hospital management.
That for the purposes of J’s enrolment in a secondary school, the parties shall consult one another and if there is no agreement by the end of term 1 in 2010, they attend upon RELATIONSHIPS AUSTRALIA at their joint expense to undertake mediation of the issue and failing agreement, the wife shall make the final decision.
That the husband be at liberty to attend all school events and functions at which a parent would normally be entitled to attend unless the Principal determines otherwise after consultation with the wife.
That each parent advise the other by telephone immediately that the parent becomes aware of any significant injury or illness of the children.
That save as set out above, the husband and wife have equal shared parental responsibility.
That the husband be and is hereby restrained from involving J in the religious practice of the Jehovah’s Witness Faith known as “witnessing” until he attains the age of 14 years unless the husband is directly present at all times with the child.
That the husband be and is hereby restrained from involving J in any study groups or similar sessions of the Jehovah’s Witness Faith (but not Sunday services and Worship) without first attending upon Ms Q and following her advice as to what religious and worldly concepts are appropriate for J at his developmental level.
That a copy of these orders and the reasons for judgment be provided by the wife to Ms Q with a request that any advice given to the husband arising out of paragraph 13 of these orders also be made available to the wife.
That the children live with the wife.
That the children spend time with and communicate with the husband as follows:
(a)during school terms on each of 3 consecutive weekends in a 4 week cycle from the conclusion of school on the Friday until the commencement of school on the following Monday commencing on 21 August 2009;
(b)for one half of all school term holidays by agreement and if agreement is not reached by 14 days before the last day of term, then the first half commencing from the moment school concludes for the term until the middle Saturday in the holiday period;
(c)for one half of the long summer holidays at times to be agreed and if agreement is not reached by 14 days before the last day of term, then on a week-about basis commencing from the moment that the school concludes for the year save that the children shall spend:
(i)from midday on 19 December until midday on Boxing Day with the wife in each year unless otherwise agreed; and
(ii)for the period of 48 hours prior to the first day of the school year of each child with the wife;
(d)On Father’s Day in each year from 5 pm on the Saturday until 5 pm on the Sunday of that weekend;
(e)By telephone on each Wednesday between 7 pm and 7.30 pm to the wife’s landline for which purpose, the husband will call the wife and the wife will facilitate such calls ensuring the availability of the children.
That the husband be at liberty to provide to each child a mobile telephone at his expense for the purposes of the children calling him when they so wish.
The provisions of paragraph 16(a) of these orders shall be suspended during all school holidays and resume upon the school terms resuming as if the paragraph had not been suspended.
The provisions of paragraph 16(a) of these orders shall be suspended on Mother’s Day from 5 pm on the Saturday until 5 pm on the Sunday of that weekend.
If the children are not to be delivered or collected at school, they shall be delivered by the wife to the outside of the husband’s residence at the commencement of the relevant period and returned by the husband to the outside of the wife’s residence at the conclusion of the relevant period.
That the parties maintain and continue to communicate with one another about the welfare of the children through a communications book.
That each party is hereby restrained from denigrating, abusing or harassing the other to or in the presence of the children or from permitting any other person to do such things to or in the presence of the children.
That all extant applications are otherwise dismissed.
That all proceedings be removed from the list of cases awaiting a hearing.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Beard & McCarthy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5934 of 2007

MR BEARD

Applicant

And

MS MCCARTHY

Respondent

REASONS FOR JUDGMENT

This is a dispute principally about where the two children of the parties’ marriage will live.
The children are L, a daughter born in October 1995 and J, a son born in January 1999. L is 13 and J 10. Both children currently live predominantly with their mother.
Mr Beard is 50 years of age and is a self-employed contractor.
Ms McCarthy is 47 years of age and is an office administrator.
For the purposes of my reasons and my convenience, I shall refer to the parties as the husband and the wife.
The husband and the wife were married in January 1993, separated on 17 May 2007 and divorced on 22 July 2008.
The separation was an unhappy one but as the husband had, in his own words, “spent five months on the couch”, it is probably fair to conclude that the break-up was inevitable.
The wife is still critical about the husband’s behaviour towards her and the husband says that the wife is not the woman he married.
The separation occurred when the wife took the children from the home and would not disclose their whereabouts for some days. Since then, there has been an absence of trust and communication.
In her evidence, the wife said that the relationship suffered as a result of the constant pressure applied by the husband regarding his religious beliefs. She said he spent little time with the family and committed most of his time to his faith. She said he was extremely possessive and paranoid about her, often accusing her of being with other men. On 17 May 2007 there was an argument in which the wife indicated that she was unhappy about the religious issues and also living in S where she had no job, no money and a limited social network of family. She said she told him that she wanted to leave and needed some time away from him.
The wife said that on the following morning, she did not feel safe because the husband had become “aggressive” the night before and as a consequence, she booked into a motel, collected the children at the end of the school day and left the area.
Unilateral action by a parent to remove children and exclude them from the life of the other parent in most circumstances is to be criticised. Apart from raising concerns about parental responsibility, it is an issue of a court’s focus when working out what is in a child’s best interest. That is the focus in s 60CC(4) of the Family Law Act 1975 (Cth) (“the Act”). Obviously, protection of the children is a priority for any parent but in this case, the dilemma was the relationship between the husband and the wife. It was hard to understand what the wife’s position was because the husband led little evidence about it although it was clearly his position that the wife was endeavouring to exclude him from the lives of the children.
The wife tendered the husband’s diary notes from around the time of separation. It was not for the purposes of showing how the children coped at that time but it does show there was a good and ongoing relationship between the husband and the children. They missed him and when father and children were able to communicate, it was indicative of a close and loving relationship.
Ultimately, the wife was required by the Court to return to the area from which the separation had occurred and the children returned to their old school. As I will find, whilst the wife may have had a reason to end the marriage because of her unhappiness, her attitude to the responsibility of parenting left a lot to be desired at that time. That is not to say that the husband should not be criticised for his response thereafter but that is a subject I shall return to.
These proceedings have highlighted the unhappiness and mistrust between the parties but also that there is little obvious prospect of that changing. The children are caught in the middle.
The husband was the applicant in these proceedings. He relied upon an affidavit to which he added evidence about an incident in April 2009. He also relied upon an affidavit by his brother about a conversation with J in October 2008.
The wife was the respondent in the proceedings and relied upon her affidavit filed 13 March 2009. That had a variety of schedules of material from the internet which was unhelpful and not relied upon. The proceedings had to be adjourned part-heard in May 2009. On resuming, three months later, the wife was given permission to lead further evidence of what had occurred in the interim. It was evidence that was troubling and had an impact on the outcome.
The Independent Children’s Lawyer called the family consultant to give evidence. The family consultant sat in on the evidence given by the wife on the last day. He did not alter his views or recommendations.
The husband represented himself. He told me he had had a lawyer look over his trial affidavit. At the commencement of the proceedings, I endeavoured to explain to him the process I would follow.
The wife was represented by counsel throughout.
The husband’s case was that the children should live with him. He sought the following orders:
1.        All previous parenting Orders are discharged.
2.The husband and the wife have equal shared parental responsibility for the two children of the marriage namely:
·          [L] born […] October 1995
·          [J] born […] January 1999
(“the children”)
3.        The children live with the husband.
4.The children spend time with and communicate with the wife as follows:
(a)During school terms. In each alternate weekend from Friday after school until the commencement of school on Monday morning.
(b)For one half of each school term holidays being the second half of all such holiday periods.
(c)In the long summer holidays one half of such period on a week to week about basis for each party, with the children to be in the care of the wife for the last week of those holidays. Children to be returned to Husband at 6pm on the Sunday evening prior to the commencement of the school week.
(d)Commencing in 2009 on Xmas Eve from 4 pm to Xmas Day 4 pm then in alternate years following at the same times.
(e)Commencing in 2010 on New Year’s from 4 pm to New Year’s Day then in alternate years at the same times.
(f)On each of the children’s birthdays at times to be agreed by the parties.
(g)On each of the parties birthdays at times to be agreed by the parties.
(h)On Mother’s Day and on Father’s Day at times to be agreed by the parties.
5.The spend time with and communicate times with the children while scheduled to be in the care of the wife pursuant to paragraph (4) (a) of these Orders, are suspended during the school term holidays and the long summer holidays.
6.(a)      In the event the children are scheduled to be in the care of the wife on the day for yearly Memorial Observance at [H Church] for Jehovah’s Witness then on that day the children are to be permitted to attend the yearly Memorial Observance.
(b)Each party shall take all necessary steps to ensure the children so attend on the day of such yearly Memorial Observance.
(c)The husband shall notify the wife in writing of the date of the yearly Memorial Observance one month in advance of such day.
7.Except for the changeovers of the children at their schools all other changeovers to occur at the front of the residence of each party, the party with then care of the children to deliver them to the other party.
8.When the children are in the care of the wife on Sundays or Tuesday evenings, the wife is required to take all necessary steps to facilitate the children’s attendance at the scheduled meetings of the Jehovah’s Witness at the [H Church].
9.The wife and her servants or agents are restrained and prevented from interfering with the children’s religious practices and shall take all necessary steps to enable the children to freely express their religious beliefs and participate in religious activities as they each may chose to do.
10.(a)      Both parties take all necessary steps and sign all required documents to cause the children to remain students at their current schools namely [S] College for [L] and [G] Primary School for [J].
(b)Each party is restrained from taking any steps to remove or attempt to remove either child from her or his current school without the consent in writing of the other party or further Order of the Court.
(c)The wife is restrained from enrolling or attempting to enrol either child in a school other than the current school each child now attends.
11.When the children are in the care of the husband on Sundays the wife is permitted and encouraged to telephone the children between 7 pm and 7.30 pm on that day.
12.(a)      Each child is at liberty to initiate calls by telephone (landline or mobile), SMS, e-mail or Internet (messenger) to either party at reasonable times.
(b)Each party is required to do all reasonable things to enable the children to make such calls referred to in this Order.
13.For the purpose of all telephone or like communications each parent do all things necessary to ensure the children are able to speak with the other parent freely and without interruptions.
14.Each of the parents, their servants and agents are restrained from denigrating, abusing or belittling the other parent to or in the presence of the children or either of them or from allowing any other person from doing so.
15 The husband authorise the children’s schools to provide to the wife (at her expense if any) with copies of all reports or material and information ordinarily provided to parents.
16.Section 62 (B) and Section 65 DA(2) Family Law Act Provision.
17.That on occasions where a baby sitter is required that the other party has first choice of looking after the children before alternate babysitter is arranged.
18.That [the mother] sign “Request to Delete a Partner” form in respect to my [Z Company] Distributorship which was overlooked at the property settlement.
Three observations need to be made about the husband’s proposed orders. First, he conceded Order 18 was a property order. I explained the finality of the jurisdiction and whilst it may have been overlooked by the parties, there was no consensus between them. I was not able to determine whether the husband was endeavouring to alter a substantive or machinery provision of the earlier orders. He said he would take up the issue with the wife. The second observation is that the husband in his final submissions, altered the position proposed concerning each parties’ time with the children so that he, during a fortnightly cycle would spend with them:
(a) in Week 1, from Thursday night through to Monday morning; and
(b) in Week 2, from Thursday night through to Saturday morning.
The significance of these changes was that they amounted to a sharing arrangement as distinct from the husband’s preferred position at the commencement of the hearing which was that the children live with him. The third observation is that the husband said that if I disagreed with any of his proposals as set out above, then he would adopt the position of the Independent Children’s Lawyer rather than that of the wife.
The wife wanted the children to live with her and sought the following orders:
1.That the children live with the Mother
2.That she have sole parental responsibility of the children in particular concerning the children’s medical health and treatment.
3.(a) That the children spend time with the Father for three weekends per month from Friday the conclusion of school to Sunday
(b)On special occasions and school holiday time as per the current arrangements;
4.Any other Order that the Court deems appropriate.
The husband is an intelligent and articulate man. He was well-prepared for the case with his materials tagged and marked. It was noticeable that he called upon the assistance of his brother who was a witness for him in the proceedings. It was obvious that they had worked together on a series of questions for cross-examination and the brother noticeably suggested a line of questioning be abandoned.

The husband understood the importance of cross-examination because on a number of occasions he said he was going to be “interested” to see how the wife and the family consultant would answer his questions.
The major focus of the husband’s cross-examination was on the family consultant but he was permitted some latitude as a result of the wife introducing new evidence on the final day in August. He said he had not cross-examined about some issues earlier in the hearing but ultimately, he went back to the issues that had no relevance to my determination.
It must be noted that during the adjourned period, the husband and the wife’s friend Mr G had become protagonists in a proceeding the Magistrates Court for intervention orders. Those matters are still pending. Of concern was the fact that the husband had sought to include the children as aggrieved family members on the orders. He did not seek to lead further evidence about why that was necessary. He did not seek to explain why it was that the wife could not provide the protection he thought he needed for the children from a court. The husband led no evidence about Mr G notwithstanding he mentioned him regularly. I have concluded his obsession with Mr G had something to do with the fact that there is or was a relationship between Mr G and the wife. What the problem with that was, in relation to this parenting case, remains a mystery.
On a negative note, the husband was unable to move beyond his criticism of the wife. He could not find it in himself to compliment or be positive about the wife. When he did refer to her as a good mother, he lacked sincerity. His obsession about the wife’s behaviour and her current state of mind was concerning. In final address, counsel for the wife was critical of the husband saying he had no respect for the wife and that he saw no value in her for the children. Counsel described the husband’s views as “negative, rude and offensive”. It would be tempting to agree with those observations because that is exactly how he did behave towards the wife and portrayed her during his evidence. However in very recent days, there is an indication of the parties being able to talk to one another under strained circumstances about things affecting their children. In contrast to that, the husband is pursing the intervention order against Mr G involving the children not only as aggrieved family members but apparently also as witnesses. All of that behaviour and his low opinion of the wife as a parent makes me conclude he still sees little value in her as a parent of his children.
In his evidence, the husband impressed as trying to be honest. It was this honesty that ultimately made him concede that he had not been entirely frank in his affidavit material. He is a man who takes things literally. Whilst I have no doubt about his devotion to his children and his love for them, his attitude to parenting was not as child-focussed as the wife. Quite to the contrary, this case was more about him and his needs rather than those of the children.
The wife was described by the husband’s brother as “not very intelligent”. The evidence and in particular the cross-examination, did not support that view.
The brother said that she was a good mother and they had previously got on well together. I do not know how he made the assessment about the wife’s level of intelligence but I reject that assessment based upon what I saw.
The wife was child-focussed and devoted. She was able to tell me about the individual characteristics of the children and her particular relationships with each of them. That was particularly important in relation to the difficulties of discipline that she has encountered with J and how she was endeavouring to overcome them.
L told the family consultant in both of her discussions with him, of her concerns about the way the wife spoke of the husband. However, the recent evidence indicates a close relationship between mother and daughter. When L clashed with the husband over her attendances at religious observances and her use of computer facilities, it was to her mother that she turned. The content and tone of the text messages indicates that the relationship between mother and daughter is very strong and L relies upon her mother for emotional support. It must be also said that I found the wife responsive and responsible in her dialogue with L.
The wife made concessions that the husband had a good relationship with the children. She said they loved him. In any family law hearing where one party in person has to cross-examine the other, it is a difficult but revealing dynamic. Here, the wife was not only responsive but volunteered information which was positive about the relationship between the husband and the children. She spoke courteously and sincerely to her response to the husband’s questions.
The wife impressed me as being dedicated to the education of the children. Among the few compliments the husband gave her was that her domestic chores and care of the children were fine. I heard her concerns expressed about clean uniforms and bedtime routines. If the husband’s view was intended to convey, as I suspect it was, that she fulfilled her role in a perfunctory way, I disagree. The wife’s capacity to worry about routine and uniforms gave me the impression of a very child-focussed parent. I found the wife honest and have no reason to doubt her truthfulness.
Thus the main contentious issues between the parties were:
·what time the children spend with each parent;
·what weight I should give to the views of the children;
·who was the parent best able to undertake parenting responsibilities beyond what the husband described as a perfunctory level;
·whether the husband’s behaviour immediately after separation which I will find and describe as stalking, was simply an aberration and whether anything has changed;
·whether there is any significance in the husband’s concern about the wife’s relationship with a Mr G;
·whether the children’s religious activities arising out of their faith as Jehovah’s Witnesses should be restricted or curtailed having regard to the wife’s absence of belief, if not criticism of, that faith;
·whether the husband or the wife provided the better stable home life for the children;
·whether the tumultuous relationship between the wife and J was attributable to anything for which either parent was responsible and whether it ought to be a factor in influencing how much time that child spends with each parent each week;
·what each parent espoused about how they would promote the other in the eyes of the children and whether I accepted that that espoused view was genuine and would make a difference for the children;
·whether the wife had adopted a position of endeavouring to exclude the husband from the lives of the children; and
·what orders would best meet the emotional as well as physical needs of the children and in particular, orders about decision making as parents.
The husband’s evidence was that prior to separation, the children were well settled in their home and actively involved in school and recreational activities in the S area.
The husband said that his business activities enabled him to have flexible work hours so that at the moment, he works four days one week and three in the other. He said that also enabled him to have a major role in the daily care of the children as they grew up and he was able to tell me about piano lessons and J’s attendance at the local BMX track.
The husband said that up until separation, he was the person responsible for getting the children ready for breakfast and school including preparing their lunches and cooking their dinner. He said he enjoyed family activities such as making jams and breads. He said that he dropped off the children and picked them up from school as and when required. The separation therefore came as a shock to him when the wife and children vanished.
The husband portrayed the wife as a liar and as a consequence, embarked at separation upon a course of endeavouring to video her to gather evidence. His affidavit material asserted that he had not videoed the wife. What he did not concede until cornered was that he was gathering evidence and that the wife did not physically appear in any of his videoing attempts. The logic behind the videoing was confusing. On the one hand, the husband was maintaining that he was doing it only for the purposes of establishing that there was some risk to the children because of his wife’s association with a Mr G. On the other hand, he conceded that he needed evidence of adultery for the purposes of the Jehovah’s Witnesses congregation because he would otherwise not be able to move on in his life and remarry.
The husband maintained that he was pursuing the issue because of the inappropriateness of Mr G and his association with the children. The husband said that Mr G was regularly mentioned by the children as being in the wife’s home. He pointed to the fact that Mr G was mentioned in the family report. He said that he did not know what role Mr G might play in the wife’s household and that he was waiting with interest to see what an affidavit from Mr G might say. The family report to which the husband was referring was the issues assessment report because in April 2009, the family consultant provided a comprehensive family report in which J told him that Mr G was not coming to the home anymore. The wife’s position was set out in her affidavit. She said that she approached Mr G to have him do an affidavit but he said he did not want to be involved. She said she met him through the band in which she played but that he had little contact with the children as he rarely visited. She said that Mr G had become distant and did not want to become involved in the family conflict. There is no evidence to the contrary.
I remain mystified about what the issue was with Mr G. The husband was certainly obsessed about him. I do not have any evidence about Mr G’s background or his appropriateness around children. Having regard to what I heard from the wife about her parenting skills, it is hard to see what the problem was. The husband certainly made clear he was upset about Mr G becoming some sort of father replacement but the evidence is overwhelming that the children have a strong relationship with their father. The husband wanted to show even by having questions prepared for cross-examination of the wife that she was trying to substitute Mr G for him as a parent and that it was still an issue. He seemed relieved that Mr G was not coming to the home any longer. He interpreted that as meaning that there is no relationship between the wife and Mr G any longer but I see no evidence as to what the problem was anyway.
The videoing by the husband would not have come to light were it not for the fact that the children collected a variety of films from the house and took them home to their mother. It was while the children were watching these videos that they found that the husband had attempted to video the address at which the wife was with Mr G. I was asked to watch the video and did so in the courtroom. It was hard to tell what it was about except that the microphone was recording the husband’s voice. His voice was audibly heard to say that he had proved the wife had committed adultery. In addition, there was a long dark period which I have presumed was an endeavour to film at night because the screen noted digital times both before and after midnight.
The husband was cross-examined about all of these incidents and maintained that he had never followed the wife around and at all times, the filming was on public land. When it was put to him that this was some form of controlling behaviour, he justified it by saying that he should be able to do so if it had anything to do with his children. Ultimately however, the husband conceded that he was not “himself” at that particular time and went further and said that he did not know who he was. He said it was not something that he was proud of and that he was under a lot of stress at the time. It was most unfortunate that he did not make the concession much earlier than he did.
In a very telling answer to a question about whether this sort of behaviour would explain J’s struggle with concepts such as his mother breaking the law and her having “gone off with another man”, the husband said that he “guessed” it came from him because it was J who had discussed the subject with him. There can be no doubt he did inappropriately discuss it with the child. He added that it helped explain why Mr G was in J’s life when he was not.
Sadly, the husband had one of the Jehovah’s Witness congregation elders also present when this behaviour occurred on one occasion. I am also satisfied that the children were in the car on one such occasion as well. The husband maintained that the children were not involved in the evidence-gathering exercise but he did concede that they “may have been” in the car when he drove past Mr G’s house.
It was put to the husband that he was being vindictive but he said that the wife had put him in a position where unless he could show adultery, he had to remain faithful to her as a result of the tenets of his faith. When asked whether or not that was a significant invasion of the wife’s privacy, he said it would have been “cleaner” if she had simply admitted what was going on. I find he had and still has little insight into the effect of his behaviour on the wife.
I have no doubt that this was stalking in any sense of the word.
On the final day of the hearing, the husband said that the children were not involved in what I find was stalking. In perhaps a bizarre turn in the case, the wife tendered on the last day, what purports to be a diary of the husband from 2007. The husband did not challenge the wife about it. Although somewhat confusing, it seems to have come into the wife’s possession very recently. It seems it was in the hands of Mr G and Mr G’s wife at some stage. Having regard to the stance adopted by the husband about not having stalked the wife and not having involved the children, I think it is important to note what is recorded and that which the husband did not deny.
The husband recorded that on 29 May 2007, he bought some security lights for the home. He had noted that this was a period of time after which proceedings had been issued. He spoke to his neighbour who was a federal policeman who did a “background check on [Mr G]” but found that there were no charges or arrests in the last six years. He found however about car registration details.
The husband noted that on 4 June, he went to his accountant to restructure the company if the wife did not transfer the shares. He then observed that he could wind-up the company and start another one so that the wife would be left with the “debits”.
On Saturday 9 June 2007, the husband went to a pathologist. During this period of time, L had been given a mobile telephone and there were regular text messages between father and daughter which convinced me that L wanted to have time with her father. However, and somewhat disturbing, he told L that he was at the doctors and when she asked why, he said he was “making sure I didn’t have any diseases”. That was a very strange statement to make to a child aged 11 and inconsistent with responsible parenting. On the same day, the husband drove past the home of Mr G and “noticed” his car in the driveway. He then recorded:
It hasn’t been for the last two days. I am sure they are seeing each other especially now that she has a place of her own.
On Tuesday 19 June 2007, the husband recorded that he had decided to “swing by boyfriends house” and he saw his car in Mr G’s driveway. The wife was in the car and she drove off and he followed her but lost her.
On 21 June 2007, the husband recorded the following:
[J] told me in bath that wife told him that she would have to stay at boyfriend’s house until she found a place for them all to stay. She said Boyfriend has a “spare bed” for her to sleep in so that would be okay. He told me wife left marriage because I became a dedicated Jehovah’s Witness. I asked [J] if he thought that was a good enough reason to leave the marriage and he didn’t think so.
This is the husband recording his own conversations with his son. I had not heard any evidence about this and presumably that was because the husband did not volunteer it. What is very disconcerting is that he was involving J in adult concepts. That was inappropriate.
On the same day, the husband recorded that he went over to Mr G’s house at 11.20 and watched Mr G move his car to the nature strip and move the wife’s car into the driveway. He then said that it seemed that they (presumably Mr G and the wife) had settled in for the evening so he went home. He then recorded that he would go back at first light to get some video of the car in the driveway as it was quite dark. At first blush, the 11.20 could be seen as the morning but sequentially, it follows a conversation that could have only taken place in the evening. Accordingly, I have concluded that the husband was stalking the wife that night.
On Saturday 23 June 2007, the husband went past the house of Mr G at 2.20am. Leaving aside the question of the stalking, the entry shows that the husband had the children that night. He said in the entry that they were in bed a little late because he had suggested that they watch a video. He must have left them at 11.15pm which he has recorded and then went back again at 2.20am. J at this stage was 7 or 8 years of age. The obsession of the husband with the wife and Mr G was clearly overriding his parental responsibility.
On the following day, 24 June 2007, the husband went back again. In the night before, he had been past the house at 2.20am. He now recorded that he went past the house at 7.20am, that is, five hours later. He recorded that he videoed the wife’s car in the driveway and his conclusion that the wife and Mr G spent the night together. Where the children were at this hour of the morning, is not recorded. He then noted that at 9.45am he went past the house and then went to the supermarket to get some things for L’s dessert project. There were not enough things to complete the project so the husband and at least L went back to the supermarket to get some more. On the way, they went past Mr G’s home and he noted that the car was in the driveway. He said he took a photo on his phone camera and then went home. I found this disconcerting having regard to his adamant view that there were no children in the car when he was undertaking these activities. His own diary entry would suggest to the contrary. The same day shows the husband taking the children out for a pizza at 7.00pm and on the way, driving past Mr G’s home.
On Wednesday 4 July 2009 the diary entry suggests that the husband had the children with him and they had had a day at Luna Park and then to the home of some relatives where they had dinner. He then went home at 8.30pm and J went straight to bed. At about 9.30pm, he said he recorded that he telephoned the wife’s home and there was no answer. He then recorded:
Had a report of […] (the wife’s car) in street at 11.00pm, all lights in house were out. Then a later recording wife leaving boyfriends house @ 12.45 am. Thursday morning.
There is no indication that the husband was the recorder of this information but it is perplexing.
The family consultant had been asked his view about the stalking if I found it to be true. He said he would be concerned. It must be remembered that the husband maintained that he had not stalked the wife not only in his evidence but also had taken the view that his behaviour was appropriate for the protection of his children. He said his behaviour did not meet the stalking test under state law. This evidence of the husband is two years old. However, because of the fact that he gave evidence in May 2009, it is clear that he has not backed away from his behaviour. My concern is that rather than him being a changed person as he would have me accept, I suspect he would behave the same way again given an opportunity to do so.

I say that also because as late as April 2009, there was an incident at which the husband was present when J returned from a scout camp. The wife was surprised to see him there and was quite upset. The husband’s justification for being there was that the scout master had encouraged him to be involved but I must say I have some doubts.
A sad, bizarre and graphic example of the husband’s obsession was that he took one of his wife’s sanitary pads around separation and later told her that he had proof that she had committed adultery. As late as giving evidence under cross-examination, he said that he had obtained a kit from a chemist and tested and proved that she was having sexual relations with another man. It was apparent from his prepared cross-examination that the adultery issue was important to him. I ruled he could not cross-examine on the point. He has not seen the damage he is doing to the other parent of his children.
Other evidence of the husband’s behaviour can be seen. In August 2007, when the husband arranged mobile telephone calls received by the wife to be diverted to his telephone and as a consequence, she was not receiving any calls. That was clearly an attempt at evidence-gathering but also a serious invasion of her privacy. Reading his diary, it is clear that the husband viewed the telephone as his expense and therefore he was able to do as he pleased.
The incidents to which I have just referred may very well be explained as having been caused by the distress of the husband of the breakdown of the marriage. They certainly occurred not long after separation. However on 29 November 2008, the wife said she received a telephone call from L’s piano teacher. The husband had caused a scene and was abusive over the payment of money for the lessons. Ms C, the piano teacher had requested that the husband not be involved in future payment arrangements and said she would only deal with the wife. The husband’s explanation was that it was a misunderstanding. I do not accept that.
The husband confirmed that on 10 August 2007, he and the wife attended at the Magistrates’ Court because the wife had made an application for an intervention order. The parties resolved that issue giving each other undertakings in relation to their behaviour.
Two days later, after the children expressed their frustration in not being able to telephone the husband, he said “They showed me letters they had written to the ICL”. He annexed those letters to the affidavit. This subject falls into one of the categories about which I have some concerns. The impression created by the husband’s affidavit was that out of nowhere, the children presented him with these letters. I do not accept that to be the case. The children complained to the husband about difficulties of contact by telephone and it was he who suggested that they write to the Independent Children’s Lawyer even providing the children with her address.
The husband’s evidence was that in November 2007, he and the wife had a telephone discussion about J changing schools and the children attending religious meetings. He said that he told the wife that it was unacceptable for her to instruct J who was then aged 8 years old to lie to him about the model, make and registration number of her new car. A debate ensued and he then said that it was L who told him the make and registration number of the car.
Whilst this evidence was largely unchallenged, the husband used it to highlight the wife’s attitude to him and his perception that she wanted to exclude him from the lives of the children. The evidence had the opposite effect. The wife said she did not yell at the husband. I watched the wife’s calm demeanour in court and accept that she is not easily goaded into aggression. The greater concern however was that the husband told the wife it was L who had given him the number. This was in November 2007 and during the period in which I accept that the husband’s obsession with proving adultery by the wife was occurring. I accept the wife’s version of what occurred at that time.
In a subsequent telephone discussion, again relating to schooling, the wife complained that children were teasing J at school because “his father is a strange person” but also because J’s uncle is a public figure. The husband said that the wife told him the children did not want to have any contact him. The conversation ended when the husband indicated that both parents should attend at a family relationship centre to work out a parenting plan.
The husband’s view was that as at the end of 2007, the wife was refusing to go to the family relationship centre. The wife denied such an approach had been made. The husband said in evidence that he had now compromised enough and there was no longer anything to negotiate about. He maintained that if he did not proceed with this application, then in the future, he would not get to see his children. It is hard for me to see how any form of compromise was ever going to work because the husband adopts a unilateral and dogmatic view about what is good for the children.
Earlier in these reasons, I set out what the husband sought in the document he filed as his proposed final orders. That changed in his final address. During the hearing, when asked about his position, he said he wanted the children to be in his care on a full-time basis but the least he would accept was “fifty-fifty” because that was “fair”. This lack of insight into the needs of the children based on what he thought was fair, permeated his case.
When I turn to the evidence of the family consultant it will be seen that L has strong views which do not coincide with what the husband wants. L is almost 14 years old but the husband did not explain how he would deal with his daughter particularly now that she is articulating her views very strongly. On the last day of the hearing, the husband’s focus was more on J and spending time with him rather than L.
The husband’s evidence was also that since September 2008, the wife had ceased all telephone contact with the children on Sunday and that that was contrary to orders of the court. I found this hard to understand. The husband telephoned the children at the allotted time under the orders and spoke to them for the full allotted period. His complaint however was that the children never rang him. The orders of the court were that the children could ring the husband. The husband placed the responsibility for that upon the wife.
The wife’s view was that the children had no desire to call the husband and were busy doing their own things. I could not help noticing the element of frustration in the wife’s demeanour that the husband uses every minute of time available under the existing orders.
I do not find that the absence of these calls is indicative of some attitude of the wife not wanting the husband to be able to communicate with the children. L had access to a mobile telephone. The husband’s diary notes showed L was sending him text messages once she received the telephone. In the recent evidence, L was sending her mother text messages when upset about something the husband was doing. It is hard to conclude other than that the wife was right about at least L doing her own things and not telephoning the husband. I have kept in mind that J is now nine and was seven when this separation occurred. I accept the wife’s view that a seven to nine year old boy would be so distracted.
The husband referred to an incident in January 2009 which took place at the police station when the children were exchanged. He said that he remained inside his vehicle to try and avoid a confrontation but the wife approached his car. He said the wife expressed her views aggressively wanting to change the days. He said that he reminded the wife that as the children were present and outside the local police station, it was neither the time or place to be having the discussion.
The husband asked me to accept that his position was that it was inappropriate to discuss contentious issues in front of the children. He pointed to the January incident as an indication of the wife’s incapacity to understand the concept. However, he seemed to distinguish that from his behaviour of having a child in the car with him when he was stalking the wife to prove her adultery and it was he who suggested the children write a letter to the Independent Children’s Lawyer. He also conceded that when the children asked him about what was happening in their mother’s life after separation, he told them.
One such example was that J believed his mother was a liar. That was because he had somehow obtained the wife’s position that she was not having sex with Mr G. However, J had heard the wife and Mr G apparently in the wife’s bedroom talking about sex or having sex. The husband focussed on this. What he seemed to miss was that it was he who told J that there was something inappropriate about his mother having sex with Mr G. Involving a nine year old boy (or younger) even where he had had sex education, in such a concept, was highly inappropriate. The reference to which I have already referred about the discussion between the husband and J in the bath concerning the break-up of the marriage is another example. It reflects poorly on the husband but also indicates that the husband failed to see how his behaviour was destabilising the relationship between the wife and the children.
The husband referred to an incident in February 2009 relating to J joining the local Cubs group. The husband’s evidence was that J called him prior to the time allocated under the orders and indicated that he could not telephone at that designated time any longer because the local Cubs meeting was between 7.00pm and 8.00pm and his mother had enrolled him. He said that he told J that they would simply pick another day for the call to occur. He said he heard the wife say in the background that he would need to put his request in writing to her before she would consider it. He used this as an example of the wife breaching existing parenting orders when it suited her.
On this incident, the husband focussed his attention in cross-examination. He put to the wife that this was an example of her using J to negotiate arrangements that suited her. He persisted that the wife was acting inappropriately. I could not find that to be the case. Quite the opposite, J wanted to join the Cubs. This Wednesday night was the Introduction night and it clashed with the husband’s telephone time. According to both parties, J was very excited about going so the wife arranged for him to telephone the husband earlier than the ordered time. The conversation according to the wife between the husband and J was about the fact that he was going to Cubs and they would have to organise another time for future calls. That is consistent with what the husband said. The wife followed this up with a detailed message in the communication book. The husband’s criticism was unreasonable and certainly not focussed on the needs of J. I find the wife’s action and attitude responsible.
In her additional evidence on the last day of the hearing, the wife said she had discussed J’s schooling with the husband. I shall turn to the changes to schooling below. This discussion was about the wife wishing to change J to a new school because of the problems he was having. The husband told the wife that he would agree to the wife changing schools for J providing the wife withdrew J from scouts on Tuesdays to enable him to attend a religious meeting. The wife disagreed but left the issue to be discussed between father and son and J unsurprisingly, said that he wanted to leave scouts and go to the religious meeting instead. The husband did not challenge any of this evidence. I am troubled about the fact that the husband was prepared to trade on issues as significant as these. I have no doubt the religious meetings are important to the husband and attractive to J but so is his relationship with his peers in scouts and the value he receives in learning things there. To trade an important schooling issue where it had always otherwise been important, was very odd and reflects poorly on the husband.
The husband opposed the wife’s request to move J from his present primary school because there was no good reason to do so.
On the first Friday in May 2009, the Vice Principal of J’s school approached the wife indicating that J had had a terrible day. He confirmed that J had been teased and had his jumper put into a rubbish bin which upset J. J then took matters into his own hands culminating in the Vice Principal giving him “time out”. In the classroom where J was having “time out”, he threw chairs and tables around in anger. That in turn led to detention.
Subsequent to May 2009, things have not improved for J. The wife’s evidence was that on 24 July 2009, J got into trouble at school and was given a detention notice. This was a serious notice because it seems the alternative was suspension from attending school at all. The unchallenged evidence of the wife is that a child upset J who in turn swore at his peers including calling some girls “sluts”. J was put into a separate room as a consequence. He told his mother he no longer “dobs” on his peers. The school viewed the matter seriously. It is a sufficient basis in my view to permit the wife to change the school for J’s sake.
However, two issues arose out of all of this which show the problem of communication between the parents. The communication creates a problem if not an impossible barrier at the moment for the parties to decide future parenting issues together. First, the wife’s view was that these behavioural problems occurred after J spends time with his father and goes to school tired. The husband’s view was that J was acting out because he could not have more time with his father. There is no evidence upon which I could find either view is right save that I find that any reduction in the disruption of J’s life might be important and in his interest. Secondly, the notice of suspension was addressed by the school to both parents and it would appear that it was not sent to the husband. The wife “dealt with” the problem and did not contact the husband. She certainly wrote details in the communication book but the husband would not have received that for some days. Rather than indicate a presumption that the school would contact the husband, the wife’s attitude was that she had dealt with the problem because it had occurred during her time with J. The wife should be criticised for not contacting the husband regardless of the timing having regard to the serious nature of the conduct at school. On the other hand, the husband’s optimism that a “reconciliation” as he called it was occurring, indicates that there is a long way to go before the parties are in a position to negotiate the future needs of their children.
I accept that J is having difficulty at school. I find that the wife is very conscious and concerned about the problem but the husband seems to have ignored it or, as I have pointed out, views it as not a very important problem.
Schooling is a decision for parents rather than a court. Parents have equal shared parental responsibility until otherwise ordered and that responsibility brings with it all of the decisions required of parents. The emphasis on Part VII of the Act is on parents working out these decisions in a consultative way because they know best their children’s needs and how to best promote their development. A court should be reluctant to intervene unless the parents or either of them, lose sight of the focus on those developmental needs. A parent in that case might be more concerned with their own needs including a desire to continue the battle. I find here that the wife is very conscious of the needs of the children and in particular, J. The husband was of the view that the problem will occur wherever J attends school but the wife sensibly desires to give him a fresh start. I think the circumstances warrant a new start.
There is also a clash of ideologies between the parents which permeates much of this case. The husband is a member of the congregation of Jehovah’s Witness. The wife was brought up as a Catholic but now professes no spiritual ties. To the husband, the Jehovah’s Witness faith is a very significant part of his life. He was quick to point out that this was the children’s faith and their choice. The wife expressed concerns about the constant adult concepts that the children had to grapple with including Armageddon, Paradise and abortion. She said that was totally inappropriate for J at his age and when I asked her about L, she said it was not a subject that was raised.
From the evidence given on the final day, it is apparent that L is beginning to form her own views about religious observance. The wife said that L sent her a text message on a recent Sunday. The message was to the effect that she was feigning illness to avoid going to the meeting. She claimed that her father was insisting she could vomit if necessary and stay in the car. The husband did not challenge the wife about this evidence or put any other perspective so I have presumed that L was doing exactly what her mother thought was happening. L is beginning to assert her desire to be independent. J is a different proposition.
According to the wife, J did not understand the adult concepts and he was troubled about them. She pointed to his counsellor’s expressed concerns about the issues and to the fact that J had “witnessed” a child at school. That is a reference to discussion by one Jehovah’s Witness with another non-member of that faith for the purposes of encouraging a new person to join the faith. In the eyes of the wife, this behaviour by J was inappropriate and creating problems with his peers. In addition, J discussed concepts like the creationist view of the world versus the evolutionist theories in a “show and tell” type environment at school. The husband did not seem at all troubled about that. The wife’s view was that this sort of thing confused J and made him the target of bullying.
J’s counsellor is Ms Q who is a psychologist in private practice. She has been seeing J on a referral from the family’s doctor. She has now had almost two years of involvement and is planning more. I must therefore conclude there is an adjustment difficulty for J and that it is serious. According to the family consultant, Ms Q is available to see the husband. I do not know what efforts he is making to see Ms Q.
According to the family consultant, Ms Q was examining J’s problems at school but there was also an issue that J was “burdened” by thoughts about the ending of the world and in particular, the concept of Armageddon.
Similar conceptual problems concerned the wife including J’s concerns about abortion. The husband did not express similar concerns. His view is that J is an intelligent and inquisitive child. The wife’s concern is that this quest for knowledge is coming from what happens in the Jehovah’s Witness meetings. The husband put to the wife that she did not know what was occurring in the meetings but she responded by pointing to the fact that she had lived with the husband during a long period of time.
I find the wife’s concerns were genuine and although she does not accept the views of the husband’s faith, that was not what was driving her objection. Her view was that J was a child who should not be exposed to confusing and troubling concepts. I agree with the wife.
That is not to say that there is anything wrong with the husband or J being involved in the Jehovah’s Witness faith. Quite the opposite, if J benefits from having a spiritual grounding so that he can join his father in that faith, it must be to his benefit. However, he must not be disturbed by its tenets and the husband must be conscious of the fact that the wife’s views are different. Differing spiritual views are but a part of a rich tapestry of parenting and if the parents can jointly accept the views of the other, J must benefit. Here the only concern is that J is a troubled boy according to his counsellor. Regardless of his own faith, the husband must accept that he cannot expose J to concepts which disturb him. If the husband cannot communicate and negotiate with the wife about how to deal with that, he must speak to Ms Q and ascertain how to help avoid the problem arising. Even if he says it is not happening in his household, the husband must remember that J is also living in another environment where concepts such as abortion and Armageddon are concepts that the wife believes disturb J who is still a vulnerable child.

In discussions with the husband, he queried how long any restriction should or could be imposed on J (by which he meant himself) from actively participating in his religion. I have no intention of restricting J at all. My task is to restrict the activities of parents if they are not in a child’s best interest. Here I propose only to restrict J from “witnessing” without the husband’s supervision. I would hope the husband would understand that he needs to listen to others about the impact on J and L of the strong faith he has. If he fails to do so, he will see the reaction already apparent from L. If he fails to heed these words and there is evidence of further disturbing behaviour in J attributable by someone such as Ms Q to his pursuit of knowledge as the husband sees it, he may face a specific future application which will restrict his involvement of J in his faith.
The wife too has to accept, as the family consultant said in his initial assessment, the Jehovah’s Witness faith is very much a part of her children and she needs to respect it, encourage it and certainly not destabilise it.
The husband also referred to a concern expressed by the wife about L when she was about 12 years of age being in the company of a 14 year old girl “witnessing” in a door to door environment in what I find was lacking in supervision by any adult. The husband said it was a matter raised by the wife and he stopped it. He said that if L wanted to continue to do it he would ensure she was supervised. There was a spirited discussion about whether orders could be made to stop that sort of activity for L and if so until when. I am concerned that the significance of the wife’s point about the physical risk for the children particularly a child as young as L was, was lost on the husband. It was not the pursuit of the tenets of the faith that were of concern but putting the child at risk in an unsupervised environment. I find that attitude lacked parental responsibility.
The husband was very concerned that the wife had alleged that he had been violent. In his evidence, he said that the wife continued to allege that he was a violent man and that she was in fear of him. He said that he had not assaulted or threatened to assault the wife at all and that her allegations were false.
In her evidence in chief, the wife did not lead any evidence about past violence. In the hearing in May, the subject was not raised. However in the final day, the husband said he wanted to cross-examine the wife about the fact that she alleged in her practitioner’s outline of case that he was violent. I permitted his cross-examination.
The husband asked the wife about violence. He put to her that rather than him being a violent man, he was a calm person. The wife responded by denying that and saying that he had been violent. She said he attempted to break her leg, had put his head through a bathroom wall, had stalked her each time she left him and had searched and pulled out a packet of condoms during some period of difficulty in the relationship. The husband objected to the wife giving this evidence saying that his question had only been about the period of the marriage by which inference, I understood him to be saying that the wife was referring to some things outside of that period of time.
I do not accept that the husband has been physically violent to the wife in terms of family violence as defined in the Act. Family violence is defined to mean:
…conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
On 10 August 2007, the parties agreed to mutual undertakings in the Magistrates Court. Those undertakings were given on the basis of the wife withdrawing her intervention order application.
The intervention order proceedings arose out of the wife learning of the husband stalking her. In her affidavit, the wife relied upon a copy of an intervention order made but the document annexed as corroboration was a copy of an application rather than an order. In fact, the document was the application made by the husband against the wife. The annexure also contains a statement made by the wife to the police but it was dated in February 2008 and had nothing to do with the August 2007 proceedings.
The wife annexing the husband’s complaint was similarly odd (and I presume an error) because it was the husband who said (in January 2008) that he was in fear of the wife who was threatening him. He told the Magistrates Court that she was “mentally unstable” and there were incidents where the wife had put her hands around his neck to choke him. He also alleged that the wife’s “boyfriend” would harm him.
On 17 January 2008, the parties signed mutual undertakings at the Magistrates Court not to harass or intimidate one another.
The exact picture of who was generally the aggressor is unclear. What is clear is that the husband’s behaviour in stalking the wife did happen. Before June 2007, the wife said that the children referred to her being “taped” by the husband. It was not until after the wife saw the husband’s video that the husband had accidentally provided to her that she became aware of the details of the stalking.
I do not find the wife was apprehensive about her personal wellbeing or safety up until June 2007. She did have concerns for her own wellbeing thereafter. Wellbeing includes worrying about being watched, followed or more seriously, stalked.
In this case, the wife was entitled to her privacy particularly as the relationship had ended. I have already referred to the husband’s evidence about sleeping on the couch. However, his diary notes make clear that he was suspicious of his wife during the period before separation when he doubted her fidelity. The wife did not seem (according to the husband’s diary) to be distressed by the husband’s advances and her rejection of him. She gave no direct evidence of it: it came from the diary.
The husband’s diary and the subsequent evidence about his stalking are sufficient to enable me to find that the wife has a basis to say that she fears the husband.
Having regard to the state of the evidence about the husband’s complaint to the Magistrates Court about his fear, I do not find that the husband has a similar fear of the wife.
The wife’s evidence was that she had “concerns” about the husband exposing “the children” to inappropriate sexual behaviour. If she had those concerns, I do not accept that they were worrying her to any great degree. I do not accept that there was a basis for the wife to express concern about both children. The following incident highlights the inability of the parties to talk to one another about the expressions of their children which if unexplained, caused the children anxiety. J told the wife that he had witnessed through a crack in his father’s bedroom door his father “humping” a doll. J said that he had been kicked by his father as a result of being caught watching.
The husband agreed that he did have such a doll but it was under his bed. He said that J had found the doll. He agreed that it was inappropriate for children to witness that type of adult activity. He maintained that at the time of the incident to which the wife referred, he was asleep and that the doll was still under the bed. I make no inappropriate finding as I do not think the husband would do anything deliberate to expose his children to inappropriate sexual conduct. The dilemma for the wife was in knowing what to say to J when she could not discuss it with the husband.
As time has past and L has matured, she has begun to assert herself. The evidence given by the wife is relevant to the question of what views L is expressing but also how a shared care arrangement as suggested by the husband would impact upon her.
The wife said that L did not want to go to the home of her father during the week because it disturbed her weekly routine. According to the wife, L complained she had to use an alarm to get herself up in the morning and organise J to go to school because the husband was still in bed. The wife said that L got very anxious if they were going to be late for school and in the wife’s mind, L was taking on responsibility for J’s care. The wife expressed concerns about L not washing her uniform and clothing and that the disrupted week meant that L was not changing her clothing appropriately. The husband did not cross-examine the wife about any of those issues at all and I accept her evidence. It is evident that the parents cannot discuss these issues.
In relation to J, the wife said that she assisted him with homework and described in detail his activities outside of school hours. As with L, the wife’s concern was about the disrupted week.
A recent example of the disruption was given by the wife on the last day of the hearing. She said that J should have done a project during the time he was with the husband but had not. That placed pressure on J and the wife to get the task done in a very short space of time. It is to be remembered that both parents are engaged in paid employment. The husband cross-examined the wife about the project suggesting he had had only a few days but he missed the point that he had put both J and the wife in a difficult position. Rather than argue about how much notice each had or did not have, they should have cooperated to get J’s task done. The inability to communicate exacerbated the dilemma. Although the husband said that those project-type tasks normally fell to him, it was the wife who was more attuned to J’s needs and got the task done. This is an example of where conflict between parents and lack of cooperation makes shared care and disrupted school weeks unworkable.
The wife also pointed out that there had been times when L had forgotten her uniform or a book and was not able to rely upon the husband to organise those sorts of things. She said that L had access to the computer at home and all of her routine things were there.
The wife was critical of the husband’s domestic activities and responsibilities including such simple things as cooking. Again, none of this was challenged by the husband nor did he set out in his affidavit any detail about how he would manage the children.
Having regard to the nature of the relationship between the husband and the wife, their complete lack of trust in one another, their complete inability to communicate and the tentative fear that the wife has of the husband, it would be very hard to see how any cooperation could occur that would make a shared care arrangement work if I acceded to the husband’s fall-back position of 50/50 time.
A children and parents issues assessment was completed in this matter on 18 December 2008. That confined and defined the issues in dispute between the parties but also made some recommendations for the parties to contemplate. As a consequence of that report, when the matter came on for hearing before me in January 2009, I ordered a comprehensive family report be prepared.
The family report was prepared by Mr E and is dated 3 April 2009. Mr E attached to his report his curriculum vitae as a family consultant. No-one questioned his expertise.
Mr E has been a family consultant to this Court since 2005.
The family consultant saw both parties, both children and spoke to a number of people.
The family consultant described the husband as a calm and articulate person who clearly believed he was more able to provide a positive care experience for the children than the wife was able to achieve. The husband told him that he remained wary about coming into direct contact with the wife and having any direct communication with her about the children. He said he was sceptical and distrustful of her motives and continued to believe that the wife would use opportunities against him as he said she had done in the past.
The family consultant found the husband to be in a position of being able to provide appropriate levels of care for the children on either a full-time or shared care basis. He said the husband had a comprehensive knowledge of the children and their levels of functioning and was able to acknowledge areas of parenting that were problematic. He said that the husband recognised that the parental conflict had affected the children detrimentally and that certain aspects of the children’s behaviour were a product of the tension and confusion they had experienced.
The family consultant observed about the wife that she too presented as a calm person who was clearly able to outline her views and had become more relaxed subsequent to the earlier issues assessment report.
The wife told the family consultant that it was important for the children to be in her care during school days and that they not be required to move from one parent to another. She set out her proposal. She told the family consultant that her inability to communicate directly with the husband exacerbated the difficulties in the areas to which I have just referred. Like the husband, the wife was able to identify problems in the parental relationship. She described herself as being scared of the husband and unsure as to how he would respond by her attempts to discuss issues associated with the children. She did not believe they were able to directly communicate with each other.
The family consultant made the same observations about the wife as he did of the husband in relation to their understanding of things.
The family consultant said that both continued to be highly distrustful of each other and each continued to believe that the other actively undermined the other’s relationship with the children. The family consultant said he had minimal confidence in the ability of the parents to form any positive or constructive parental relationship with each other in the foreseeable future and certainly not without professional intervention. I have already mentioned the view of the family consultant about his concern should the stalking allegation be substantiated because it would raise significant concerns in the mind of the family consultant about the husband’s functioning and his ability to provide the children with a positive parenting experience.
The family consultant was of the view that there were significant challenges to the parents being able to implement an equal or even substantially shared parental responsibility arrangement. He said that whilst the children were not of an age where they required high levels of mutual parental information sharing and decision-making, they were nevertheless still at a developmental stage where they needed their parents to make decisions about them. He made the comment that this was particularly important for J given his age and level of emotional vulnerability. It was the family consultant’s view that if the parents found themselves in a situation where they were experiencing difficulty in making joint parental decisions, they had to access services to facilitate that decision-making process.
It is abundantly clear therefore that the family consultant could not see any shared care arrangement working because of the conflict and inability of the parties to communicate.
The family consultant spoke to L and found her quiet and reserved and guarded about her comments. He said L did not want to engage in discussion however she identified her father as allowing her to do most things with few restrictions whilst her mother tended to place limitations on her activities. L acknowledged there were times when there was tension between she and her mother however she also recognised the positive level of care that her mother provided for her. Having regard to the evidence that I heard on the last day, it would seem that L is moving closer to her mother rather than her father.
L indicated a lack of interest in the parental conflict but did acknowledge that her mother made comments about her father that she did not like. Whilst somewhat evasive, she apparently also told the family consultant that her father sometimes makes comments about her mother.
In terms of what L saw for her own future, the family consultant said she was clear she wanted to live with her mother during the week and see her father on three weekends in a row from Friday until Monday. She knew that this was somewhat different from that proposed by her mother. She was confident that the arrangement she thought was appropriate was workable. As for her father’s view, she did not want either a 50/50 basis or full custody as she described them.
The family consultant opined that L appeared to have developed a strategy of disengaging herself from the parental dispute and was guarded about her comments and generally non-responsive. The family consultant was concerned that there was a danger in continuing to disengage herself because that may result in her experiencing a range of internal emotional and psychological tensions. He said that L’s views about her living arrangements were clear and that she was of an age and developmental stage where her views needed to be given weight.
The family consultant also spent some time with J. He found him a talkative and expressive child who was prepared to engage with him and explore issues and make comments. He was an impressionable child according to the family consultant who was developmentally immature in certain areas.
The family consultant said that J identified some positive aspects of his current school but continued to claim he had been the victim of bullying from certain children. That position has been re-enforced by the recent evidence which I heard on the last day of the trial.
J told the family consultant that he was unsure why his father wanted him to remain at the current school and he believed that his mother’s reasons for change were the same as his. Those reasons are that he is bullied about his issues such as his appearance and how he behaved rather than any expression of religious beliefs.
In talking about his relationship with his mother, J said that his mother needed to look on the bright side because she mostly looked at things from a bad perspective. He described to the family consultant about his mother talking about court “stuff” and that there were times when his problems became too big and he felt that he had to run away. J said to the family consultant that he was keen to continue in his faith because he learned “stuff” and he believed that a 50/50 living arrangement with his parents would be fair to them both. He did however observe that he knew that neither parent wanted that.
The family consultant said that J told him that there was not sufficient time with his father to do things that he wanted to do and that he was concerned about not seeing his father. He expressed concern about his mother yelling at him if he tried to ring his father.
The family consultant opined that J presented as an impressionable and developmentally immature child. He said his social interpersonal and problem solving skills were improving but he struggled to manage many of the life challenges he faced both at home and at school. He found it difficult to understand certain issues in his life and in particular what was occurring in the parental relationship.
The family consultant was of the view that in relation to schooling, a change may resolve some of the difficulties in the short term but J still needed to manage peer conflict in the longer term. The family consultant said that he thought J remaining in the current school supported by school staff and counsellor was the appropriate outcome. However, having regard to what I heard in the recent evidence, that now seems problematic and in this case, it is worth attempting to change the environment for J’s sake.

J’s view about the future and in particular what orders should be made should not be given weight according to the family consultant. He said he was not of an age or level of developmental maturity whereby his views should be given any significant weight. His views were an attempt to be fair to his parents to help them resolve what was a significant dilemma and burden in his own life. The family consultant said that it was apparent that he saw his time with his father as being very important to him and something that he did not want to have decreased. That must be seen however in the context of the problems that the parents have in dealing with one another and the disruption that the changeovers are currently creating.
The family consultant spoke to J’s psychologist Ms Q. She said that J’s difficulties in school had been identified as had the issues relating to his ongoing living arrangements. Most of the concerns expressed by Ms Q related to schooling issue and some inter-sibling rivalry with L. J told Ms Q that he was bullied and on occasions had not felt safe at school and that he had consistently stated that he wanted to change his school. His level of happiness with the school had tended to fluctuate.
Ms Q said that J felt torn by the current parental dispute and under some pressure about having to decide what his living arrangements should be and that he had to balance his responses in order to remain neutral. Ms Q said that J wanted a 50/50 living arrangement with his parents because he felt that was fair and he did not want to upset either parent.
Ms Q also delved into the area of the issues raised by the wife as concerns about his involvement in his faith. She said that J felt that the world will end and has commented on Armageddon and she believed that he experienced difficulty with this eventuality because he felt burdened by such thoughts.
The family consultant took the view that based on what he saw and heard, the children should live predominantly with their mother and spend time with their father. In respect of time with the husband, the family consultant felt that the status quo should remain or for three consecutive weekends from Friday until Monday. He made recommendations for the continuation of counselling with Ms Q and that the wife access that to assist in parenting J.
In relation to parental responsibility, the family consultant said that that responsibility should be shared if the Court could determine that the parties were able to appropriate communicate with, consult and jointly negotiate major long term issues relating to their children.
The evidence of the family consultant was helpful. He provided some options for the parties to accept the solutions. Unfortunately, the parties could not agree. The family consultant’s view was that L should be heard and her views given weight. It is not surprising having regard to the fact that she is changing constantly. The wife’s evidence was that she was a knowledgeable teenager. That was consistent with the evidence of the family consultant. In between April 2009 and now, it seems that L has altered her position. Her expressed views about the regimen of church and the use of computers and similar technology may simply be a young woman flexing her intellectual muscle and pushing the boundaries of her parents disciplining her. The husband did not dispute the wife’s evidence of the recent episode and therefore I have no reason to doubt it occurred. The family consultant saw L as a child distancing herself from childhood routines and activities and wishing to be treated as a young adult. I find it is appropriate in the circumstances to give weight to her views.
J is in a different category. He is not emotionally developed enough to have his own views given weight notwithstanding the general consensus that he is an intelligent and inquisitive boy. The reason for his outspoken views would appear to be his desire to be fair to his parents and to be able to find a solution for them which they could not arrange themselves. I fear the husband does not have the insight to realise that that is what J is doing.
The husband sees J as having strong views which should be followed. He sees J as being distressed by a reduction in time. The expert’s evidence is that J should not be involved in those actions. He should be left to be what he is, a child. It is important however that J does spend considerable time with his father to enable him to do many of the things his father does well. However, the evidence is that the wife fulfils the daily activities quite well which J also needs. It is troubling that J has challenged his mother and adopted the view that his mother is not truthful. The husband points to the fact that J said he overheard Mr G and the wife talking about sex. It was not so much troubling that he had heard that as that he had discussed it with his father who I find engendered in the child’s mind that the wife was doing something contrary to what she should have been doing.
I find it also troubling that the ongoing dispute between the husband and Mr G still rages. However it is the fact that the husband choses to involve the children apparently to the extent of seeking orders for their protection against Mr G that worries me. That sends a message to the children that their mother cannot adequately protect them.
In the early part of the proceedings in May 2009, the husband expressed relief that Mr G was no longer involved with his children. I am not at all convinced that the husband has moved on from the issue of the breakdown of the marriage.
Part VII of the Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child.
Parental responsibility about decisions for the future of a child means all the duties, powers and authority which by law parents have in relation to a child.
Section 61C(3) says that joint parental responsibility is subject to any order of the Court and Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 64B(2) sets out that a parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if two or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i)a child to whom the order relates; or
(ii)the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Section 64B(3) provides:
a parenting order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
Major long-term issues are defined to be issues about the care, welfare and development of the child of a long-term nature and include (but are not limited to) issues about:
(a)      the child's education (both current and future); and
(b)      the child's religious and cultural upbringing; and
(c)      the child's health; and
(d)      the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
The objects and principles in Part VII of the Act are to be applied when determining a parenting dispute. These are the aims to be met if possible in every parenting case with the best interests principle always contemplated. Section 60B provides:
(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).
Fundamental to my decision in this case is section 60CA which says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in the child’s best interests:
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(iii)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
I turn to each of those concepts as they are relevant in this case.
Whilst all of the considerations in s 60CC must be considered, there is a distinction created by the legislature between the primary considerations and the additional considerations.
The evidence is clear that both J and L have a close and loving relationship with their father. Each child wants to spend time with the husband and enjoys doing this with him. Similarly with the wife, J benefits from his mother organising his scout activities and managing his daily life. In respect of J’s problems at school, it is the wife to whom J seems to open up and confide. I conclude that because the husband did not seem to see it as a problem. Both children therefore benefit from the relationship they have with their parents. I do not think that the amount of time each spends with the children will make any difference to the benefits that the children are currently receiving. The strength of the respective relationships is clear. The quality of time is far more significant here than the quantum of time. I find that the time I propose will not affect the benefits the children receive from the relationships they have and that those relationships are already meaningful with both parents.
Although I have found that the husband has not moved on with his life, I do not find there is any need to be concerned about the children being exposed now to abuse or family violence. The orders I propose will further reduce the opportunity for the parties to come into face to face contact with one another where their children are present.
I accept the evidence of the family consultant about the maturity of the children and their difference levels of understanding as to what time they should be spending with their parents. L has disengaged herself from the parental dispute but recent evidence would suggest she is siding with and looking for guidance from, her mother more so than her father. According to the family consultant, L has maturely considered her own future and wants to spend weekends with her father. L is confident that the lack of communication which creates difficulties where children leave things or forget responsibilities can be overcome. That view seems to have been held notwithstanding her views that her father is not good at organising getting J to school. In evidence, the wife conceded that there is no indication that L has been late for school of recent times. In my view, having regard to the changing times and the evidence of the family consultant, I should give significant weight to the views of L.
J wants more time with his father but I am satisfied that a disjointed week creates problems such as the example about the project. It is also possible although I could not make a positive finding as such, that the mid-week time is destabilising J at school which could be contributing to his behavioural problems. However, the telling evidence is from the family consultant who says that J is not mature enough to understand the ramifications for his welfare of any orders. J’s views are borne out of a desire to be fair to both parents. If he is developmentally immature as suggested by the family consultant, it is important for his sake to end the uncertainty and make clear that he should not be involved in the decision making process of his parents.
The husband cross-examined the family consultant about how J would react to less time and the family consultant thought he would certainly notice and be aware of it. However, J needs to have the burden of endeavouring to sort out his parents’ problems lifted from him. He should not even contemplate sharing time as that is an adult problem. He just needs to be a little boy. If less time impacts upon his ability to participate in religious activities and knowledge about which he is inquisitive, it will only be a matter of time before he is mature enough like L to have a greater say in his own life. I do not see a few loss of religious activities as detrimental to his development. I find therefore that J’s views should not be given significant weight.
I have contemplated what impact the orders I propose will have on the nature of the relationship between each child and the parents. I find there will not be detrimental effect; these orders will enhance the time with the parents because there will no longer be any argument. The parents can say that this is a determination of the court according to law and each will abide by it.
I am satisfied that the wife has shown a willingness to facilitate the relationship between the husband and the children. The husband argued otherwise but apart from her initial conduct for which I have criticised her, there is no evidence that she is doing anything negative about the close relationship between the husband and the children.
I have concerns about how J will react to a change of regime which amounts to a reduction of his time with his father. That reaction is probable but the stability of the routine and lifestyle for J is more important than his concerns about less time with his father. Because of the approach J has taken in endeavouring to achieve fairness for his parents, he will settle once he knows that burden has been removed from his shoulders.
The parties live close to one another so there are no geographic problems in getting the children from and to school. Thus, there is no practical difficulty with the orders I propose.
I have considered the capacity of each parent to provide for the various needs of the children. I am satisfied that notwithstanding the husband’s criticism and pessimistic view of the wife, she is better able to handle the emotional as well as practical problems of a day to day nature for the children. Her capacity as I have found, convinces me that she should have a greater time with the children and that any sharing of time otherwise would be detrimental to the development of both children and not in their interest.
I have criticised both parents in respect of their attitudes to the responsibility of parenthood. Subsequent to being ordered to return to the area in which she now lives, the wife has acted responsibly in all aspects of parenting. I cannot say the same about the husband. His lack of respect for the wife and his destabilising of her relationship with the children means I have more confidence in the wife than the husband for the purposes of providing a stable environment for the children.

In respect of family violence issues, I have expressed my concern about the husband’s behaviour but no concerns in respect of the wife. Whilst those matters now have settled down, I find the husband has not moved on with his obsession about the wife’s behaviour and conduct. Apart from distracting his attention from getting on with doing parenting things with the children, it also means that the children are aware that he has little respect for their mother. I have found the wife’s conduct is more stable in that she does not endeavour to be openly critical of the husband. I say that notwithstanding the views expressed by the family consultant about what L told him. The wife therefore is more likely to provide a stable future for the children than is the husband.
The family violence orders dissipated into undertakings. Those were necessary in relation to the husband and I am not entirely sure why in respect of the wife. In any event, there are no current orders. What is of concern however is the husband’s pursuit of Mr G to an extent that it involves the children. I could only conclude that the husband has some ulterior purpose in doing that as he led no evidence of concern about Mr G being around his children.
This is a case that has dragged on and final orders are necessary to give the children some respite. J needs to know the case has ended and that he no longer has to worry about fairness and trying to find solutions for his parents’ problems. L needs to know she can focus on her schooling and her future without being dragged into the conflict between her parents. Final orders are therefore designed to end all further proceedings.
I have dealt with the behaviour of the parents for the purposes of s 60CC(4) and (4A) and need say no more about them.
As I do intend to make parenting orders, section 61DA requires that I apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This exercise needs to be undertaken before the determination of what parenting order should be otherwise made.
Section 61DA provides:
Presumption of equal shared parental responsibility when making parenting orders
(1)      When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)      The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
…
(4)      The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
I find having regard to all of the matters to which I have referred, this is not a case where it would be in the best interests of the children for the parents to have equal shared parental responsibility in relation to all matters. I distinguish between various decisions because there are some in which the parties can work out solutions and usually about which there is no major urgency. However I have concerns about medical matters.
The husband made it clear to the family consultant that notwithstanding his religious views, he did not have an objection to his children having blood transfusions. That was disingenuous because what the husband really meant was that the children would be in the care of the wife and she could make decisions about those issues. When really pushed however, the husband made it clear that he would not agree to a blood transfusion if the decision fell to him. I accept that that is a tenet of his faith and that he strongly believes it. What is of concern is his attempt to mislead the Court about just how he would handle just a situation. I do not know what view he would take of his own children if a blood transfusion did take place whether he liked it or not. Whilst it might hopefully be remote, it again points to the fact that the husband’s priorities lie with his own views about what is right or wrong even to the extent that that overrides the best interests of his own children.
In addition, because of the orders that I propose, it seems most likely that day to day issues of a medical and counselling nature will fall to the wife. As there is no ability of the parties to communicate about any issue other than through a communication book, I propose to make an order that the wife have the sole responsibility for the medical issues providing she gives the appropriate advice and notice to the husband.
A second dispute as to decision-making relates to schooling. I am not at all clear on what the husband’s view is about the importance of J being settled at school. The wife’s evidence which I accept is clear. She wants J to have a fresh start regardless of the problems to which family consultant referred. Having regard to how the husband endeavoured to trade away that for something which is important to him, it seems to me appropriate that the wife who is focussed on the child’s welfare, should have the responsibility for making that decision but otherwise, all future decisions in relation to education should be determined according to a shared arrangement.
Another issue of the decision-making variety related to religion. It was proposed by the wife that she have that responsibility. Apart from restricting the husband from permitting J to participate in “witnessing” except in his direct company, I see no reason why the parents should not continue to have the opportunity to involve the children in their respective faiths.
Accordingly, I propose to make the orders set out at the start of these reasons.

I certify that the preceding One Hundred and Eight Eight (188) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 14 August 2009

[2009] FamCA 737

14 August 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Natural Justice

Procedural Fairness

Injunction