BIDWELL & BIDWELL

FAMILY COURT OF AUSTRALIA

BIDWELL & BIDWELL

[2013] FamCA 984

FAMILY LAW – CHILDREN – With whom children spend time – Best interests of children.

Family Law Act 1975 (Cth)

Calverley v Green (1984) 155 CLR 242
Damberg v Damberg & Ors [2001] NSWCA 87
Dundas & Blake [2013] FamCAFC 133
Markoska & Markoska [2011] FamCA 572

APPLICANT:

Mr Bidwell

RESPONDENT:

Ms Bidwell

FILE NUMBER:

SYC

2140

2012

DATE DELIVERED:

17 December 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

10, 11, 12 and 13 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Boyle

SOLICITOR FOR THE APPLICANT:

MCW Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Willis & Bowring Solicitors

Orders

PARENTING

IT IS ORDERED

1.That the parents have equal shared parental responsibility for the children A, born … 2005 and M, born … 2010.
2.That the children live with the mother.
3.That the children spend time with the father during school terms as follows (the weekend time for both children to be on the same weekend):
3.1That commencing 13 September 2013, A spend time with the father from Friday after school until the commencement of school on Tuesday each alternate weekend.
3.2That until 1 September 2014, M spend time with the father each alternate weekend, from Friday after 4.30pm until Sunday evening at 5.00pm.
3.3That from 1 September 2014, M spend time with the father from 4.30 pm on Friday until the commencement of day care on Monday.
3.4That from the commencement of term 2 in 2015, M spend time with the father from after school on Friday until the commencement of school on Tuesday.
3.5That, provided he gives seven days’ notice in writing to the mother, the children spend time with the father on Monday, Tuesday, Thursday and Friday from after school until 5.30 pm, the father to collect M from school and A from the bus stop nearest her home unless otherwise agreed.
3.6That until M starts school, while he is in day care, the collection time for the purpose of order 3.5 is 4.30pm.
3.7That for the purpose of this order, the father shall collect the children at the commencement of time and the mother shall collect the children from the father at the end of the time, unless otherwise agreed.

4.That until the Christmas holiday period in 2014/2015, the children spend time with the father during school holiday time as follows, noting that the time M spends with the father will occur at times when A is with the father:
4.1That A shall spend time with the father for half of each of the holidays after terms 1, 2 and 3 as agreed, or failing agreement, for the first half in even numbered years and the second half in odd numbered years, the time to commence at 9.00am on the day immediately after the last day the children attend at school in the school term and to conclude at 5.00pm on the day which is the half point of the holiday.
4.2That until the Christmas holidays in 2014/2015, A spend time with the father during the Christmas holidays in one week blocks by agreement between the parties or, in the absence of agreement, for the first, third and fifth week in 2013/2014 and the second, fourth and sixth weeks in 2014/2015, the first week of the holiday to commence at 9.00am on the day immediately after the last day the children attend at school.
4.3That until 1 September 2014, in any week when A is with the father for holiday time, M shall spend time with the father from 9.00am on the day three days before the end of A’s time until 5.00pm on the last day.
4.4That until the commencement of term 2 in 2015, in any week A is with the father, M shall spend time with the father from 9.00am on the day four days before the end of A’s time until 5.00pm on the last day.
4.5That from the holidays at the end of term 2, M shall spend the same holiday time with the father as A.
4.6That from the commencement of the school holidays in 2015/2016, the children spend time with the father for a block period equivalent to one half of each school holiday period by agreement and failing agreement for the first half in 2016/2017 and the second half in 2017/2018 and alternating thereafter.
4.7That for the purpose of holiday time, the mother deliver the children to the father at the commencement of the time and the father return the children to the mother.

5.That the children spend Mothers’ Day with the mother and Fathers’ Day with the father from 9.00am until 5.00pm.
6.That the children spend time with the father from 5.00pm on Christmas Eve until 5.00pm on Christmas Day in 2013 and each alternate year thereafter.
7.That the children spend time with the mother from 5.00pm on Christmas Eve until 5.00pm on Christmas Day in 2014 and each alternate year thereafter.
8.That when the children are with the father pursuant to these orders, the father shall not conduct any market or fete stall.
9.That A attend X Junior School until she has completed Year Six.
10.That each party shall be free to communicate with the children by telephone at all reasonable times when the children are in the care of the other party and for this purpose each party shall provide to the other a mobile and/or landline at which the children might be reached.
11.That the parties shall notify the other as soon as practicable in the event of any illness or injury occurring to the children whilst in their care and provide full particulars of any medical practitioner; health service provider or institution attended upon by the children and provide any authority and direction necessary to enable the other party to obtain all necessary information concerning the children.
12.That the parties do all acts and things including executing documents to cause A’s school, M’s day care/preschool/school and any of the children’s medical practitioners including therapists and counsellors to communicate with both parents.
13.That unless both parents agree in writing neither parent be permitted to take the children overseas.
14.That each parent is to inform the other of any change of particulars of that parent’s residential address, landline telephone number, mobile telephone number, and if applicable, email address within 24 hours of any such change occurring.
15.That the respondent mother be restrained by injunction from taking the children to see any doctor, therapist, psychologist, or allied health professionals, other than in an emergency, without the applicant father’s prior knowledge and approval.
16.That each parent is to advise the other as soon as possible by the best available means in the event of any of the following occurring:
16.1A child being seriously injured or falling seriously ill;
16.2A child requiring urgent medical treatments from a doctor or ambulance;
16.3A child being admitted to hospital;
16.4The party becoming seriously ill.

17.That the parties be restrained by injunction from using physical force upon the children when disciplining the children.
18.That neither parent denigrate the other to or in the presence of the children.
19.That neither party organise extracurricular or sporting activities for the children in the other parent’s time with the children prior to consultation with the other parent.
NOTATION
A.The court notes that the parties have in the past used vacation care and relied upon the assistance of grandparents and that this practice will continue.
B.The court notes that each party will use his or her best endeavours to ensure that each is available to care for the children during times the children are in his or her care.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bidwell & Bidwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2140 of 2012

Mr Bidwell

Applicant

And

Ms Bidwell

Respondent

REASONS FOR JUDGMENT

Before the Court are competing applications for parenting orders and adjustment of property interests arising from the marriage between Mr Bidwell (“the husband”) and Ms Bidwell (“the wife”). The parties commenced co-habitation in June 2000 and married in 2001. There are two children of the marriage, A, born in 2005 and now aged seven years and M born In 2010 and now aged three years.
The parties finally separated on 22 October 2011 when the wife and the children left the home and moved to nearby rented accommodation.

background

Much of the relevant history is not controversial.
When the parties commenced to live together, the husband was a driver. He owned a car, personal effects and savings of $10,000. He had an interest in a superannuation fund.
The wife owned a house at 21 R Street, Suburb I (“21 R Street”) with a value of $380,000 and subject to a mortgage of $76,000. She was in employment. She had an interest in superannuation, unspecified. She was also a beneficiary of the estate of her late grandmother who died in 1997. There is a dispute about the nature and extent of the wife’s interest in the estate. On the face of the will, the wife inherited one half share in the property at Q Street, Suburb S (“Q Street”) together with cash and a remainder interest in certain shares and debentures.
The parties initially lived in 21 R Street. The mortgage was paid off.
On 16 June 2001 the parties each signed a document entitled “Pre-Nuptial Binding Financial Agreement”. The document was prepared without the assistance of lawyers. The effect and significance of the document is a matter in issue in the proceedings.
In 2002 the wife’s mother purchased a property at Suburb G (“G property) which was registered jointly in her name and that of the wife. The wife’s mother says she provided the whole of the purchase price. In August 2008, the wife transferred her interest in the G property to her mother. The nature and value of the wife’s interest in the G property was an issue in the proceedings until submissions when the husband conceded that the wife had no interest in that property.
In about 2004 the parties purchased a property on the Central Coast for $170,000, most of which was borrowed and secured against both the Central Coast and 21 R Street properties. The wife paid the deposit, the fees and costs totalling $24,453.
The child A was born in early 2005.
In 2007 the husband and wife purchased another property at Town K for $145,000, all of which was borrowed. They borrowed further money to renovate the Town K property.
In 2008 the husband and wife sold both the Central Coast and Town K properties and applied the net proceeds of sale to the purchase of a unit at Y Street, Suburb I (“Y Street”) the balance being borrowed.
The parties separated for a short time in 2008.
In 2009 the husband and wife sold Y Street and applied the net proceeds of the sale, together with borrowed funds, to the purchase of a property at 25 R Street, Suburb I (“25 R Street”) for $480,000. They borrowed to finance renovations. Borrowings were secured against both 25 R Street and 21 R Street. Once the renovations were completed, they moved into 25 R Street.
The child M was born in 2010.
On 22 October 2011 the wife left 25 R Street taking the children. The husband remained in the home.
In January 2012 the parties sold 25 R Street, the husband moved to rented premises and the balance of the proceeds of sale, agreed to be $25,255, was held, by agreement, in a controlled money account awaiting the outcome of these proceedings.
In April 2012 the wife and the children moved back to 21 R Street where they still live.
In February 2013 the wife purported to transfer her interest in Q Street to her mother. The nature and value of the wife’s interest in Q Street is an issue in the proceedings.
The parties have been in dispute about appropriate arrangements for the children since they separated.
The child A attends X School, a private Christian school. Both children were enrolled at X School when they were very young. The child M is due to start school in 2014.

the proceedings

The proceedings were commenced in the Federal Magistrates’ Court (as it then was) on 16 April 2012. On 2 September 2013, on the first day of the hearing in that court, the proceedings were transferred to the Family Court of Australia and the hearing commenced before me on 10 September 2013.
At the conclusion of the hearing the parties agreed that judgment should be reserved and that the parties should make written submissions in relation to the law affecting Binding Financial Agreements once judgment had been handed down by the Full Court in the pending appeal of Wallace & Stelzer and Anor [2013] FamCAFC 199.
Because the Full Court judgment was handed down on 12 December 2013, it was not possible for the parties’ written submissions to be made and judgment in the whole matter to be handed down before Christmas of 2013.
The parenting proceedings include arrangements for the Christmas holiday period in 2013/14.
The parties were contacted and did not object to the judgment in the parenting proceedings being handed down separately.

the parenting proceedings

For the purpose of the parenting proceedings the husband will be referred to as the father and the wife will be referred to as the mother.
The Court was assisted by a report from Dr N, a single expert child and family psychiatrist.
At the commencement of the proceedings, the mother sought orders which would continue the present arrangement whereby the children spent one night each fortnight with their father, commencing their time with him at 10am on Saturday and concluding at 5pm on Sunday.
The father sought an order that the children spent four nights each fortnight with him, with M’s time being gradually increased until he spent the same time as A. The father also sought orders for holiday time with the children. The father also sought orders for time to be shared at Christmas which the mother opposed. Her position was that the children would always be with her from the morning of Christmas Eve until the evening of Boxing Day.
The parties sought different orders in relation to the children’s schooling, the father conceded that A should stay at her current private school, X Scool, until she finishes primary school. The father thereafter sought orders that A go to the local state high school and that M commence his schooling at the local state primary school. The mother sought orders that both children complete the whole of their education at X School.
The mother sought an order for sole parental responsibility.
At the commencement of the fourth day of hearing, I indicated to Counsel that I was considering making interim orders, after hearing the oral evidence of Dr N, for the time the children spent with their father between the conclusion of the hearing and the delivery of judgment.
After Dr N gave evidence, both parties changed their positions. After hearing submissions, I made the interim orders which are set out below:
IT IS ORDERED UNTIL FURTHER ORDER
1.That commencing Friday 13 September 2013 the child [A] born … 2005, “[A]”, shall spend time with the Father from Friday evening, commencing at a time agreed between the parties, until before school Tuesday.
2.That from 10.30 am Saturday 14 September 2013 until 5:00pm Sunday 15 September 2013 the child [M] born … 2010, “[M]”, shall spend time with the Father.
3.That during the school holidays commencing 20 September 2013 [A] shall spend time with the Father from 9:00am on Monday 23 September 2013 until 5:00pm on Monday 30 September 2013.
4.That during the school holidays commencing on 20 September 2013 [M] will spend time with the Father as follows:
4.1From 9:00am on Monday 23 September 2013 until 5:00pm on Wednesday 25 September; and
4.2From 9:00am on Saturday 28 September 2013 until 5:00pm on Monday 30 September.
5.That during the school term commencing Thursday 10 October 2013 [A] shall spend time with the Father each alternate weekend from after school Friday until before school Tuesday.
6.That during the school term commencing Thursday 10 October 2013 [M] shall spend time with the Father each alternate weekend from 4:30pm Friday until 5:00pm Sunday, and this shall occur on the same weekend referred to in Order 5 herein.
7.That when the children are with the Father in accordance with these Orders the Father shall not work at any fete or market.
8.That pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.
BY CONSENT IT IS ORDERED:
1.That the Report of Dr [N] shall be provided to Dr [Z].
2.That the parties shall attend upon the [W] Clinic for the purposes of commencing family therapy noting that the costs associated with that therapy are to be shared equally between the parties.
The shift in the parties’ final positions, especially that of the mother, was significant and each filed a Minute of Orders and in submissions, addressed the matters that were in issue. The issues which remained to be determined were specified by Counsel to be:
1. The mother’s application for sole parental responsibility and in that context, the children’s schooling.
2. Holiday arrangements
3. Christmas arrangements
4. After school arrangements
The issue of sole parental responsibility is contentious and requires careful examination. The other matters are less complex.

Weekends and School Holidays

Dr N gave evidence about the appropriate arrangements for the children both during term time and during holidays. Her evidence was not challenged and both parties adopted her recommendation. Although neither parent sought orders precisely in accordance with that evidence, I propose to make orders that accord with Dr N’s recommendation.
Dr N gave evidence that a block of four nights in alternate weeks in term time was appropriate for A and approved the amended proposal which the father made for incremental time with M.
Dr N expressed the view that it was appropriate for both parents to use vacation care and the assistance of grandparents if they were required to work during school holidays.
She recommended that M’s time with his father be incrementally increased until he is spending four nights each fortnight “some time in 2015 when he has already settled at school”. The time should be increased to three nights each fortnight in about 12 months’ time, well before he goes to school. Dr N suggested that occur in September 2014.
In relation to school holiday periods, Dr N recommended that M, by the end of 2013, could manage a three day/two night period away from his mother. By the time M is settled at school, at the same time as he commences four day stays with his father, M could tolerate a week of school holidays with A. Dr N did not state when the transition from two nights to four nights should occur, but it is reasonable to infer that the time should be increased to three nights in September 2014, at the same time as the weekends are increased.
Dr N gave evidence that it was appropriate for both parents to receive assistance from the respective grandparents and that it has been a fact of these children’s lives that they have been in day care and vacation care when their parents were required to work. Dr N said that, although it was preferable that the parents were available to care for the children, she saw no detriment in their receiving assistance if needed. However, I note that the father has given assurances that he will be available to care for the children in their time with him and that he will not work during that time. Each of the parents should be free to arrange for the children to spend time with their grandparents or, as they grow older, with their friends, during times each parent cares for the children.

Christmas

The mother proposes that the children will always spend the whole of the Christmas period with her. There is no evidence to support this position which is clearly unreasonable. The father proposes a shared arrangement which is consistent with A’s desire to spend time with him and M’s good relationship with him. The father’s proposal is appropriate and in the best interests of the children.

After school time

The father sought an order permitting him to collect the children from school or care on Monday, Tuesday, Thursday and Friday (the days when the mother works) provided that he gives at least seven days’ notice to the mother.
The mother did not oppose the application provided that the time the father collects M is not earlier than 4.30pm. It was her evidence that an earlier collection would jeopardise her child care rebate.
The orders will permit the father to collect A from the bus stop nearest his home and to collect M after 4.30pm from child care.

Parental responsibility

There is a presumption in s 61DA of the Family Law Act 1975 (Cth) that it is in the best interests of a child that the parents have equal shared parental responsibility when making parenting orders. The presumption is rebuttable.
The relevant paragraphs of s 61DA are set out below:
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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(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.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(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.
There is no allegation that either parent has engaged in any act of abuse of the children. It may be that, as between the mother and A, there has been family violence. The mother denies any violence from her to A but gives evidence of A’s hitting, punching and kicking her. The mother, in her application, therefore relies on s 61DA(4).
The Full Court in Dundas & Blake [2013] FamCAFC133, in relation to parental responsibility, said:
56.
Her Honour’s discretion in determining the question of parental responsibility was not at large. Her Honour’s discretion was circumscribed by s 61DA, which requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. In this case, as we have already indicated at [34], her Honour was required under

s 61DA(4) to rebut the presumption “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”.
57. In our view, her Honour was in error in making an order for sole parental responsibility. Section 61DA is mandatory in its requirement that the presumption must be applied until a level of satisfaction upon the evidence is reached that it would not be in the interests of the child for it to apply.
58. It is not, in our view, sufficient for her Honour to point to the parties having poor communication or little confidence in each other’s parenting capacity.
At Paragraph 61 their Honours say:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
Therefore, in order to determine all of the issues between the parents, in particular the mother’s application for sole parental responsibility, it is necessary to look to the matters in s 60CC in order to determine what is in the children’s best interests.

Section 60CC factors

Primary considerations

The primary considerations which the Court needs to take into account when determining what is in a child’s best interests are set out in ss 60CC(2)(a) and 60CC(2)(b). Pursuant to s 60CC(2)(a), the question to be determined is whether the children will have a meaningful relationship with both parents that will be beneficial to them if the mother is given sole parental responsibility. Pursuant to s 60CC(2)(b), the Court needs to determine whether there is a current need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
The father seeks an order restraining both parents from using physical force upon the children in discipline. The mother did not object to that order being made and, because of the concerns which are set out below in relation to the mother’s management of A and A’s complaints of physical punishment, I will make that order.

Additional considerations

Section 60CC(3)(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

In this case, the children’s views are a significant factor to take into consideration when determining what is in their best interests.
The evidence of the views expressed by the children comes from Dr N and from A’s school counsellor. Dr N asked the child where she would choose to live and A asked Dr N if she could keep a secret. After the child was told that whatever she said to Dr N would be in the report, A then said that she preferred to be with each of her parents on their days off and if both were not working she would alternate being with them.
When asked by Dr N who she would take with her in a rocket into space the child chose her father but immediately changed the preference to her baby brother. Asked why she changed her mind A said that if she showed this to mum “She’d be angry … she’d say you love dad more.” The child denied this is the case and asserted that she likes them both the same.
When asked by Dr N whether she would like more or less or the same amount of time with her father A responded “The same. If I say more, mum might be angry.” Dr N reports:
After it was established [A] knew there were seven days in the week, she was asked how many sleeps she would like in each of her parent’s home. She counted on her fingers and realised with an “ohh” it could not be equally divided. She decided “three times with dad, three times with mum, then in the day with dad and in the night with mum” because she really wants to sleep the same as “they’re both nice”.
When asked by Dr N to give a message to the Judge about her family A said “Can you please choose both of my parents to live with, half of the time with mum, half with dad. I love them the same.” (In August 2013, A told her school counsellor that she wanted to spend half her time with each parent.)
After the interviews, Dr N records that the child was in tears because she was unable to persuade her mother to let her go home with her father.
The notes of the school counsellor record the mother’s acknowledging in March 2012 that A wants to spend more time with her father and A reported that she felt her mother was trying to stop her seeing her father.
It is clear from Dr N’s report that the child A wishes to spend more time with her father than she currently does. Given the child M’s young age his views were not canvassed. However, Dr N commented that M is attached to both parents.

Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents

The nature of the children’s relationships with each parent was also canvassed by Dr N.
Dr N reported that the children rushed to see their father, happily giving him big cuddles. Dr N observed that:
The father presented as being a loving and capable parent whose care of the children might well get side tracked by his commitments working a stall at fetes, something he clearly enjoys as social events. However it was not apparent to me he would be neglectful of [A] if she is in his care, nor that his time with the children should be limited by [M] having swimming lessons on Saturday mornings.
I have set out A’s statements to Dr N about her fear of her mother’s anger. Dr N reported:
I have concerns about [A’s] relationship with her mother – she could not speak positively about her father in front of [the mother], was upset about her mother’s reportedly abusive treatment of her (which she recently spoke to school staff about) and takes her mother’s threats about school, changing her family membership (seriously).
The child A made allegations to Dr N and to her school counsellor that the mother was physically violent towards her and the evidence in relation to those matters will be dealt with later in these reasons.
The matters set out by Dr N give rise to a real concern about A’s relationship with her mother. Whether the child’s allegations of violence towards her by her mother are based in fact, or, as the mother suggests, based on the child’s attempting to negotiate more time with her father, the concern remains. There is clearly some problem between A and her mother. If the problem is as simple as the child wanting to spend more time with her father then it is inconceivable that the mother would not have made that happen. The mother in her oral evidence several times referred to the child A as “Daddy’s girl”. The mother was clearly aware that the child was attached to her father and wanted more time with him. That she did not permit more time gives rise to a serious concern about the mother’s ability to care for A’s psychological needs.
There is no similar concern raised in relation to M’s relationship with his mother or about the children’s relationship with their father.
The mother’s refusal to allow additional time for the child A with her father causes concern about the decisions she would make, relating to the children’s relationship with their father, in the event that she had sole parental responsibility.

Section 60CC(3)(c): the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child AND s 60CC(3)(ca): the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The mother asserted that the father had failed to take the opportunity to spend time with the children. She alleged that the father had failed to spend time with the children on numerous occasions when he was scheduled to do so because he was obliged to work on those times. The father denied that assertion and gave evidence that he had, on every occasion, swapped his rostered duties with another driver and spent the time with the children. He said that he had kept a diary which would demonstrate that, on every occasion when the wife alleged he had been absent, the children were, in fact, in his care. The diary was called for shortly prior to the afternoon adjournment. No complaint was made the following day that the diary had not been produced and no further questions were put to the husband on that issue. I must therefore assume that the husband’s diary demonstrated that which he asserted and I accept the husband’s evidence in relation to that issue. I regard this as an instance of the mother’s giving evidence she knew to be false so as to paint the father in a bad light.
A further instance of her attitude towards him is the mother’s seeking to bring evidence to the effect that the father worked as a male prostitute.
The mother gives evidence of a conversation shortly after separation where, she says, the father told her that he proposed to work as a prostitute. The father gave evidence that the conversation occurred when the mother complained to him that she was short of funds and would have to resort to prostitution to make ends meet. The father said that he jokingly said to the mother “Don’t worry I will do it”.
The mother gave evidence of a conversation with the father where he told her he had a client and described what had happened. The father denied the conversation.
Annexed to the mother’s affidavit was a document said to be in the father’s handwriting setting out the things he was prepared to do as a prostitute. Although Counsel was told that the copy annexed was unreadable, no legible copy was ever provided. The father said he wrote the document because he was unhappy that, after the mother moved out of their home, she persisted in coming into his home unannounced and uninvited. The mother agreed that she did this because, she said, it was her home too and it was her legal right to come and go as she pleased. The father said he wrote the document and left it where she could find it in order to irritate her (although that is not the term he used). His behaviour was unhelpful and immature at best and he must have known that it would fuel the conflict between them in relation to the children.
Whatever may be the truth of that episode, its relevance is not clear. Counsel for the mother conceded that, even had the father been engaged in employment as a prostitute, that could have had no bearing on the time he spent with the children.
The mother conceded that when she left the home with the children she removed almost all of the contents including, relevantly, the children’s beds and bedding. She agreed that as soon as the father had replaced the furniture, she agreed to overnight time for the children with their father.
It was suggested to the mother that her only purpose in including that evidence in her affidavit was to put the father in a bad light. She denied that suggestion but it is difficult to discern any other purpose and she did not suggest one.
On 13 September 2011 the mother attended at the local Police Station and reported that the child A and her father were sleeping in the same bed. (The parties were still living under the same roof). The notes record that there was no issue of inappropriate behaviour. The mother wanted the police to note the incident. The notes do not indicate that the mother told police she had any concerns and although she initially said that she did say she had concerns, when shown the notes she agreed that she did not say that. The mother denied that her only reason for going to police on that day was to make trouble for the father but gave no other explanation. Again, the mother’s actions give rise to concern about the decisions she would make if she were granted sole parental responsibility.
The father has paid child support for the children as assessed. There have been numerous challenges to the assessments from time to time, largely relating to the payment of private school fees. He currently pays in excess of $400 per week.

Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances

The only substantial change which will occur as a result of the orders which will be made is that the children will spend substantial and significant time with their father. The mother has resisted, since separation, any increase in the overnight time and, even at the commencement of the hearing, and throughout her cross-examination, maintained that one night per fortnight was a sufficient time for the children to spend with their father. Her refusal to countenance any increase in time for the child A gives rise to concerns about the decisions the mother would make in relation to the relationship between the children and their father if she were granted sole parental responsibility.

Section 60CC(3)(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

The parties live in very close proximity to one another. The child A is able to walk from her mother’s home to her father’s.

Section 60CC(f): the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs AND Section 60CC(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

I propose to consider the capacity of each of the parents to provide for the children’s needs and the attitude demonstrated by each parent together, by reference to a series of topics. It is necessary to set these matters out in some detail because they demonstrate the mother’s attitude to the child A’s care and in particular her management of the child’s behavioural problems, the child’s evident wish to spend more time with her father and the child’s medical treatment. That attitude and history is relevant to determine her application for sole parental responsibility.

The mother’s alleged threat to commit suicide

The father said that his original application for the children to live with him was based, in part, on the mother’s threat to commit suicide, which was made in A’s presence. The father in his affidavit sworn 12 August 2013, at paragraph 33, deposes to an incident in or about October 2011 when the mother came to his home to collect the child A and said in front of the child “What’s this that you are trying to take your kids off me? I don’t give a fuck. If you do that I’ll commit suicide.” The father says that the mother was screaming, yelling and crying and that he attempted to calm her down pointing out to her that the child was present. He says that the mother said “I don’t care. I’ll jump off a cliff. I’m serious I’ll do it.”
At the time of this alleged conversation, the father said that M was asleep at the mother’s home. The father called the police, who indicated that there might be some delay in responding, and thereafter he had a number of telephone conversations with the mother as a result of which he determined that the mother had calmed down and that it was appropriate for A to be returned to her.
The mother denies that she ever threatened to commit suicide or behaved in the way the father alleges. She admitted that they argued. She said that M was in her arms throughout the incident.
The father made a contemporaneous report to police on 28 October 2011 at 7.30 pm. Some time later, the police attended the home of the mother and records indicate that the mother appeared genuinely surprised at their presence and denied any allegation that she had threatened to commit suicide. She agreed that there was an argument about the custody of the children. The police records indicate that the mother did not show any obvious signs of self-harm and that the children appeared to be in good health and condition. Those observations accord with the husband’s evidence that he formed the view that the mother had calmed down sufficiently that he felt it was appropriate to return the children to her.
The objective evidence does not assist and I can make no finding about what occurred on that evening.

The child A’s being locked outside the house

The father in his affidavit refers to an instance in late 2011 when the mother locked the child A outside the house at night. He gave evidence that he had a conversation with the mother who told him that the child was only locked outside for a few minutes. The father said that he has had further conversations with the child since that time, when A has reported being locked outside the house, but only during the daytime. The father’s evidence in relation to that matter was not challenged. The mother in cross-examination did not concede that the child might have been frightened or that locking her out was in any way inappropriate. She said the child was “having a moment”. The mother said she would still lock the child out, depending on how bad her “moment” is.

The child A’s relationship with the mother

The counselling notes completed by the child A’s school counsellor at X School were produced on subpoena. On 9 August 2011 both of the parents signed consent for the child to speak to the school counsellor. The mother wrote on the bottom of the form “I (the mother) only agree to this on the grounds that I receive regular/update reports on [A’s] progress.”
On 25 August 2011 the mother took A to see Dr L, a paediatrician who reported “the primary reason for coming here today rated (sic) to conflicts between [A] and her mother.” The mother in cross-examination denied that the primary reason for the consultation was conflict as noted. During the consultation, Dr L reported, there was an altercation between the child and her mother.
On 2 September 2011 the notes record the child as “struggling with mother”.
In later interviews with the child and both parents in September 2011, the counsellor records that the child was significantly concerned about the conflict between her parents. She was concerned because she is aware that her mother wants her to stay at X School, but her father has told her that she will no longer be attending that school. The child is noted as being caught in the middle, between her parents and upset.
Notes of interview with the mother on 10 October 2011 record the mother as “highly defensive and quite angry with (the father)”.
On 22 October 2011 the child A was interviewed by police. She told the police officers “Sometimes mummy smacks me when I’m naughty.” And when asked where on her body she was struck, the child replied “on the back of my legs and my bum.” The police did not note any evidence of excessive force or bruising.
On 8 November 2011 the counselling notes record that the mother moved out of the house where the parents were separated under the one roof. The child is recorded as talking about her mother smacking her on the bottom. In contrast, she said that her father talks to her in relation to matters of discipline. Both of the parties were spoken to by the counsellor and both were recorded as being highly defensive.
The father gave evidence of an incident on 8 December 2011 when the child A came to his home with a red lump and a cut to the left of her left eye. The father was challenged in that the version of those events which he gives in his affidavit at paragraph 46 is a less comprehensive version then that which is contained in the report produced pursuant to subpoena by police. The versions are not inconsistent. The police record that the husband told them that he said to the child “What happened there, did you fall over or something?” while pointing to the red mark on her face. The child said “Mum hit me.” The father said “[A] you have to tell the truth about this because I have to tell people about this if you are not telling the truth mum can get in a lot of trouble. Are you telling me the truth you need to tell me what happened.” The child said “Mum hit me, mum hit me.” The father then said “Where did mum hit you?” And A said “Mum hit me heaps.” The child then indicated where she had been hit by tapping on her head, her shoulder and her leg. The child said “She hit me there, once on the head, twice on the shoulder and leg.”
At about 3 pm on the following day the police attended at the father’s home where the child was being cared for by her paternal grandparents and a photograph was taken of A’s face. The photograph was not in evidence. It does not appear from the records produced by the police that the child was interviewed. The mother was interviewed and denied the allegations of assault upon the child.
In her affidavit sworn 21 August 2013 the mother denied that she had struck the child A. She says that she spoke to the child and said to her “Did you say that I hit you?” and the child replied in the affirmative. The mother says that she said to the child “But [A] I didn’t hit you.” And A replied “Daddy told me to say that you hit me.” The mother says that the child was unable to say how she obtained the injuries.
Police records note the observation of a red mark on the child’s right temple about the size of a five cent piece. The mother, some days later, took photographs of A’s right cheek and the family General Practitioner (“GP”) examined the child, even later, and observed a mark on her right cheek. The discrepancy as to which cheek was injured was not the subject of challenge.
Having regard to later events, it is highly likely that the child’s injury occurred during an altercation with her mother.
On 19 March 2012 there was a conversation between the counsellor and the mother. The counsellor discussed the child A’s report that the mother was “screaming at her” and the mother acknowledged that the child was saying this so that she could spend more time with her father. Again, the mother took no steps to facilitate the child’s wishes in circumstances where the child was spending one night with her father each fortnight.
The child A was interviewed by Dr N for the preparation of the report in October 2012. Dr N recorded in her report that the child explained that she was at the assessment “so I can feel safe”. Dr N recorded that:
[A] elaborated that she felt unsafe “if I’m at home and I do bad things”, such as not unpacking her bag or ignoring mum, which results in her not feeling “nice when mum raises her voice at me, sounds like shouting.”
Dr N further recorded:
…[A] described her mother screaming in her ear, pushing her and “kicked (her) in the butt … a long time ago” but this year. She added mum may say this has not happened but it actually did. Asked if anyone else does these things [A] replied “no” and denied again when her teachers and dad were specifically mentioned.
When asked to nominate the biggest yeller the child nominated her mother. The child told Dr N that she feels sad:
When my mum screams, shouts, yells.” She was adamant this was true and volunteered she would not tell lies because one is “in big trouble if you do.
Dr N asked the child about being locked outside of the home. Dr N reports:
[A] confirmed this happened “when I told mum I was going to dad and she was angry and said if you walk out the door, you are not coming back in”. She had walked to dad’s but he was not home so she returned home to her mum’s. After she had knocked on the door and rang the bell, mum answered and let her in.
Dr N enquired whether the child was scared of either of her parents and the child replied “Yes my mum.” Dr N qualified the child’s statement by saying “When this was discussed, it became clear she was describing being startled by mum shouting her name, rather than knocking on the bedroom door, ‘like dad’ does, while she is working in her room.” Dr N continues, “to the rephrase question of being ‘fearful’ of either parent, [A] nominated mum makes her feel fearful when she yells at her and says she is not going to [X]” ([the child’s] school).
Dr N asked the mother about the child’s allegation and the mother denied that she screamed but agreed that she repeats herself a lot.
On 12 November 2012 the child told the school counsellor that she had “had a bad weekend”. The child said she had been hit by her mother and lifted her dress to show bruises. The counsellor does not describe the bruises and said that the child was more worried about being called “bitch” by her mother. A notification was made to Family & Community Services (“FACS”) by the school.
The child A was interviewed by FACS child protection workers on 15 November 2012. One of the workers was Mr D, to whom A made later references. The interview was transcribed. The child told FACS that “The truth is that my mum keeps hitting me”. When asked to explain what a lie would be, A said “if I said that my mum hits me everyday”. The child said “When I do something wrong my mum hits me” The child said she was hit “with her hand. Sometimes she kicks me”.
The child said she was hit on the hand and leg and marked on a drawing where she had been hit and how many times. She said that she had been hit on the cheek and that “Last time she choked me around the neck”. The child said that her mother kicked her every fourth day and hit her every second day and that her mother pulled her hair. In contrast she said that M only gets a smack on the bottom. The child said that a week ago her mother grabbed her hands and banged her against the wall. The child told FACS that she and her mother argue over doing chores.
On 15 November 2012, FACS spoke to the mother. They told the mother that they had observed light red welts and minor swelling on the child A.
The mother told FACS that the child had been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) but that she had not told the school. She said “Last Thursday was the worst it has ever been, as [A] bashed, kicked and hit me in the house. For over two and a half hours. I had to lock the door”. She said the child had another “fit” on the following Monday for over 40 minutes.
The mother in her affidavit material said that, occasionally, when the child A is misbehaving, she (the mother) has shouted at the child.
In her oral evidence the mother said that the child A has had episodes of extreme behaviour which last up to two and a half hours in which the child hits, kicks and punches her mother. The mother said she was forced to hold the child back to prevent her hurting the mother or M. The mother referred to these episodes as “having a moment”.
The mother gave evidence that the child A’s behaviour has changed since she commenced taking medication (in early 2013) and that now there is no problem at all with the child. In contrast, the notes of the school counsellor suggest that the difficulties between A and her mother have persisted in 2013.
The mother told FACS that the child’s behaviour was triggered when the child was asked to do chores such as unpack her bag or do homework.
The mother told FACS that she had taken photographs in the mirror of her injuries. She also had A take photographs and she said that A was afraid that her mother would “tell the police and show them these photos”.
The mother said that A’s behaviour, as described, had been occurring since August 2011 and that the parents had been separated since July 2011. She suggested that because the child A had been diagnosed with ADHD she showed signs of compulsive lying and said that Dr L had reported that compulsive lying was a symptom of ADHD. When challenged by the care worker who had read Dr L’s report, the mother retracted that statement and said “maybe Dr [L] implied it”.
The mother denied having physically hurt the child A and said “No. It’s the complete opposite; she’s hitting and kicking me. She follows me around the home”.
The mother was asked why the child would make such allegations and replied:
That’s what I asked her the other day. She said ‘I’ve gotta tell someone something’. I told her that she just can’t make it up. (The father) can do no wrong. It seems to have gotten worse since last year when we separated. It’s now become weekly for [A].
Again the mother does not concede any connection between the child’s behaviour and the child’s desire to spend more time with her father.
In a follow up interview with the counsellor on 22 November 2011, the child said she felt she had been heard.
On 18 March 2013 the child A again saw the counsellor and said that her mother was still hitting her. The child told the counsellor that she felt as though her mother was trying to stop her seeing her father. A telephone call was made by the counsellor to the mother who in the course of the discussion told the counsellor that the child is a liar and lied about being hit because she has Attention Deficit Disorder (“ADD”). The mother also accused the counsellor of being biased towards the father and the counsellor reiterated her view that the child needed both of her parents. Yet again, the mother’s attitude gives rise to concerns about the mother’s ability to parent the child A.
On Friday 2 August 2013 the child was reported to have told a classmate, as she was packing her bag to go home, that she was going to go home and stab herself. The following Monday (5 August 2013), the child asked to see the school counsellor stating that she had had a “bad weekend”.
The counsellor was not able to see the child until the following day, 6 August 2013, when the child told the counsellor she had a photograph on her Nintendo showing her mother hitting her. The child was unable to find the photograph on the device. The child told the counsellor that her mother was hitting her again with a closed fist and that it had occurred on Sunday evening and again on Monday morning. When the counsellor asked the child what she would like to happen A said she wanted Mr D (the care worker from FACS) to know and for mum to stop. The child told the school counsellor that she was concerned about the court case and said that she wanted to spend half of her time with each parent. The child was scared about the outcome of the proceedings. The further notification was made by the school to FACS.
On 14 August 2013 the child told the school counsellor that she didn’t like taking her tablets (presumably the Ritalin prescribed by Dr Z) and that the child believed taking the tablets made her feel sad. She said that she had had an argument with her mother and was hit on the hand and her hair was pulled.
It is important to note that the child A’s behavioural problems, as related by the mother, have not been replicated in the father’s household, the maternal grandmother’s home, or at school.
The mother was asked whether she had considered allowing the child A to spend more time with her father as a means of ameliorating the child’s behavioural problems and said that she had not.
Dr N, in her oral evidence, expressed concerns about the mother’s parenting of the child A. Asked about the mother’s management of the child’s behaviour, Dr N said:
It really is something that needs to change otherwise the relationship could well deteriorate, and if these sorts of episodes continue into [A's] adolescence - and somehow I suspect she's going to be one of these children who gets into her adolescent behaviour early. If it continues into her adolescence it will be very, very bad news for her development and their relationship.
Dr N expressed concerns that the mother used the diagnosis of ADHD to explain all of A’s behavioural problems, saying:
… everything seems to be put at the doorstep of her having ADHD with no thought given to what else might be going on. And, again, that’s the reason I recommended a family therapist be involved to try and have the parents thinking about what might be happening for the children, as well as trying to get them to become more aligned in how they manage the children, how they - what they expect from the children and how they manage the children.
Dr N also expressed concern that, although Dr Z, in his report, mentioned several times the need for the child to have the help of a psychologist in managing her behaviour, the mother had taken no steps to ensure this happened. Dr N said that if the child’s incidents of bad behaviour are continuing and psychological support has not been provided, then the child is not being appropriately managed.
The mother’s failure to secure appropriate assistance for the child A, in the light of Dr Z’s recommendation, gives further rise for concern about the decisions the mother will make for the child if she has sole parental responsibility.

The child A’s behavioural problems

The parents have been in serious disagreement about the source of the child A’s behavioural problems since before they separated. Again, because the mother seeks sole parental responsibility, it is necessary to examine the history. The mother believes that the child has ADD or ADHD and the father emphatically rejects that diagnosis. The mother can give no other explanation for the child’s behaviour. The father points to the child’s very different behaviour in his home and at school.
In August of 2011 the children’s GP, Dr B, referred A to a paediatrician, Dr L, for assessment. Dr L diagnosed A as suffering from ADD.
The father strongly disagreed with the diagnosis but made no attempt to contact either Dr B or Dr L to discuss his concerns about the child or his views about her behaviour. The father was aware that there was an issue, certainly on the mother’s part, about the management of the child’s behaviour and had been for some time. It was the father’s evidence that the child was always well behaved with him and that he did not experience any of the behavioural difficulties which were outlined by the mother.
Because the father refused to consent, Dr L did not prescribe medication for A.
The mother sought and obtained a referral to Dr Z and took A to see Dr Z in November of 2012. Dr Z reported to Dr B by letter dated 6 November 2012. Dr Z diagnosed the child as suffering from ADHD and prescribed medication for the child.
The mother did not tell the father that the child A was to see Dr Z. She did not seek his consent for the consultation and she did not seek his consent for medication to be administered to the child. The father did not become aware of Dr Z’s involvement with the child until, as a result of orders made by the Court, the mother sent a copy of Dr Z’s report to the father on 15 March 2013 some five months later. The father in his evidence said that since January of 2013 the mother has been sending A’s medication, a tablet which is taken in the morning, and he has been ensuring that the child has been taking the tablet.
The father now proposes to have a consultation with Dr Z to give Dr Z the benefit of his description of the child’s behaviour when in his home. He was unable to explain why he had not become involved with either Dr L or Dr Z when he became aware of the involvement with each of the doctors. It was his explanation that he declined to become involved with the doctors so as to avoid any form of conflict with the mother and that he intended that any involvement he should have with the doctors would be done through the Courts.
The mother did not concede that it would have been important for Dr Z to have the benefit of the father’s input in relation to A’s behaviour.
Dr N gave evidence that it would be important for Dr Z, if he is to diagnose the child, to have the benefit of input from her father particularly in circumstances where her behaviour in her father’s household is quite different from her behaviour in her mother’s household. Whilst the mother can be severely criticised for not involving the father in the consultations with Dr Z and the decision to medicate the child, the father can be equally criticised for not involving himself with the diagnosis of Dr L and indeed for not making any attempt to see Dr Z when he received a copy of the report on or about 15 March 2013.

Withholding information with regards to the care of the children

The mother has involved the child M with a speech therapist and the child A with a dietician. In neither instance was the father consulted, and in both instances the father became aware of the treating practitioners because of an order of the Court which required the mother to give him that advice.

I could have no confidence that, if the mother had sole parental responsibility for all or any decisions relating to the children, she would involve the father in medical consultations since she has not done so in the past.
It is important, as Dr N said, for the children’s treating practitioner to have input from both of their parents. On the basis of the mother’s past actions, the Court could have no confidence that she would appropriately involve the father in consultations with medical practitioners.
The mother has also withheld information from the father in relation to the children’s care.
The mother works four days each week. The father has asked her what arrangements were in place for M’s care. Those requests have been made in person and by letter from his solicitor. The father sought an order from the Court that the information be provided. In response to an order that she provide information to the father about M’s care arrangements, she advised in writing to his solicitor that M was in care on Monday, Tuesday, Thursday and Friday. She declined to provide any further information and, in cross-examination, said that the information she gave satisfied the court’s order that she give information about the “arrangements”.
Asked to give the information in the witness box, the mother said she could not as she did not know the address and only knew how to get there. She said she did not know the name of the centre or the carers.
The mother was directed, during the next adjournment, to make the necessary phone calls and to give to the Court the details of M’s care. She did so after the adjournment and that was the first time the father knew where M was being cared for on Thursdays and Fridays.
At Christmas 2012/13, the father caused a letter to be written to the mother asking where A was being placed in vacation care. The mother provided no response.
The mother complained that the father left the children to be cared for by others without informing her. Her complaint included the children’s being cared for by their paternal grandparents. She could not concede any similarity between the father’s request for information about her care arrangements and her complaint about lack of knowledge about his.

Willingness to undertake family therapy

Dr N has recommended, in her report dated 21 November 2012, that the parties and the children undertake family therapy. Some steps were taken by both parents to engage in therapy at the W Clinic (“the Clinic”). The mother made the initial appointments for both parties. The mother said she notified the father and that her solicitor notified the father. No email or letter was tendered. The father says he was not advised. He did not attend and the mother attended alone. Both the parties appear to have completed the intake procedure but no further appointments have been made. The parties were never at the Clinic on the same day. An appointment was made for them both to attend on 29 January 2013. The mother’s solicitor wrote to the father’s solicitor saying she would not attend. The father went. The father’s solicitor has advised the mother’s solicitor that he remains willing to attend.
Asked whether she was prepared to attend for family therapy the mother said that she would, if required. Asked whether there might be benefits in going to therapy the mother replied “There could be. I don’t know what you mean by benefits”. Asked whether it might be helpful for the children if the parents attended together the mother said “Maybe”. Asked whether attending at therapy might improve the parties’ communication the mother said “For me, yes but I don’t know if the father would take it on board”.
Asked whether she would be willing to engage in family therapy as a venue to talk to the father about the children she said that she was prepared to do that so long as the father is willing as well.
Although consent orders have been made for the attendance of the family for therapy, there is still room for concern, having regard to her oral evidence, about the mother’s willingness to engage constructively in family therapy or that she would continue to engage with a therapist if the father did not agree with her views.

The mother’s attitude to the father

Dr N, in her report, described the mother:
[The mother] presented as being a conservative woman, rather controlling and intolerant of events (and others) which do not meet her expectations. She was perhaps loose with her facts and denied any positive attributes in her ex-husband’s parenting. She seemed to have a black and white perspective, which is concerning as she seems to view the children as “hers”.
The mother, in her affidavit evidence and in cross-examination, presented as Dr N described her.
Such an attitude does not give cause for optimism that the mother will appropriately involve the father and value his relationship with the children if she had sole parental responsibility for them.

Schooling

The one area where sole parental responsibility could be warranted is that of the children’s schooling. Both children were enrolled at X School at an early age and the child A commenced her attendance when the parties were still together. The mother seeks orders that A continue at X School, and M attend at X School, until both have completed their secondary schooling.
The father agrees that A should stay at X School until she completes primary school but thereafter she should go to the local state high school. He wants M to attend the local state school as well.
Both parents have used A’s attendance at X School inappropriately. The mother has used A’s attendance at X School as a way of manipulating her. The father has told A, at least in the early stages of their separation, that he did not want her to go to X School and that he wanted her to go to the local state school.
On 31 August 2011, the father wrote to the principal of X School stating that he did not agree to A’s continuing at the school beyond 2011 and that he would not be responsible for the payment of her fees beyond that year.
On 1 November 2011 the school counsellor had a conversation with the father and informed him of the child’s distress at the thought of leaving the school. The father was encouraged to discuss issues about the children in adult time.
On 14 November 2013 the father told the school counsellor that he did not want the child A to attend at X School. On 19 November 2013 the child told the school counsellor that she was angry with both her parents as they were continually arguing. The child is noted to be struggling because her mother wants her to remain at X School and her father wants her to move.
At the commencement of term in 2012, the father took the child A to the local state school and enrolled her there. There is no doubt that the father, after separation, told the mother he intended to enrol A at the local school. He gave evidence that the mother’s response was “Fine. I won’t have a fucking bar to do with it. You can take her and pick her up and do her homework. She can live with you.” The mother denies the conversation took place.
The mother removed the child A on the first day of school and took her back to X School.
Whatever may have been the conversation between the parents, the father’s actions caused A great distress and confusion and were directed towards his own interests and not the child’s.
Dr N gave evidence that X School was a very appropriate school for A and that the counselling support which the child was receiving was particularly appropriate and helpful for the child. Dr N said that she would prefer that the child A remain at X School until she completed her secondary schooling.
Apart from ventilating the details of their dispute about schooling, neither party called any evidence which would assist in making a decision about which school is appropriate for the children. The only evidence is that of Dr N.
The mother wants the children to attend X School but she also wants the father to pay a share of the fees.
The father submits that it is inappropriate to make an order that commits him to pay private school fees for the next 15 years when there is no evidence that either party will be able to afford to do so.
The father is a driver and his employer has agreed to re-organise his roster so that he can have a block period of four nights each fortnight with the children. He will be rostered off from Friday afternoon until Tuesday morning each fortnight. The changes to the roster will mean that he has to make up his time during the remaining period. The representative of his employer gave evidence that the father will have to make up the time but was unable to say with precision how his roster would be arranged. He may have to work on the weekends he does not have the children.
In the past a contribution (the mother says a substantial contribution) was made to the payment of school fees from stalls at markets and fetes which the parties jointly ran. The mother has sought, and the father has agreed to, an order which restrains him from working at markets or fetes on weekends when he has the children. His roster may require him to work on the alternate weekends. The father gave evidence that the income from the stalls was negligible. The mother asserted the amount was significant. Whatever may have been the income, it will no longer be available.
The father’s income is $1,564 per week. After the payment of tax, superannuation, rent, child support, health insurance, his car lease, he has little disposable income.
The mother has an income from employment of $439 per week and receives parenting payment and child support. Her stated expenses, including $151 per week for school fees, substantially exceed her income.
I cannot find, on the available evidence, that either of the parents can afford to pay private school fees for the children until they finish secondary school.
In those circumstances, it is not appropriate to make orders requiring that they attend X School and the mother’s application in that regard will be dismissed.
The mother agreed that the bulk of the voluminous disputes between the parties in relation to child support has related to the payment of school fees. Documents annexed to the father’s affidavit show that the first application for review was received 26 October 2011 and resolved in January 2012 for the period to October 2012.
The father advised of a change in care arrangements on 10 August 2012 and the assessment was changed. The mother sought a review and a decision was made on 11 October 2012. On 19 November 2012, the father objected. On 25 January 2013 the objection was allowed. On 8 April 2013 the mother applied to the Social Security Appeals tribunal for review. A hearing was conducted on 12 June 2013 and a decision made on 2 July 2013 and despatched on 15 July 2013.
On 10 April 2013 the mother made a further application for review which was determined on 25 June 2013. It was unclear at the conclusion of the evidence whether the parties again are litigating in the Social Security Appeals Tribunal.
If the mother has sole parental responsibility in relation to the children’s education, she will enrol them both at X School until the completion of their secondary education. It is inevitable, on the history before me, that such a decision will lead to yet more acrimony about child support.
I am conscious that Dr N suggested that it might be appropriate for the mother to have sole parental responsibility in relation to the children’s schooling but I consider that the financial realities mitigate against the making of such an order.
To refuse to make that order will lead to a situation where the child A can attend X School until she finishes her primary schooling but the parties will be required to reach an agreement about where she attends for secondary schooling. Similarly, they will be required to reach an agreement about where the child M starts school in 2015. Hopefully, the parents will be assisted in those decisions by the family therapist. Unfortunately, there is no alternative.

Conclusion with respect to parental responsibility

When necessary, these parents have been able to cooperate and communicate effectively. This is best demonstrated by the incident when A became ill in her father’s care and was suspected to have appendicitis. The father attended to A’s emergency care and kept the mother properly and fully informed. Both parents agreed in cross-examination that “when the chips were down” they could co-operate and communicate for the benefit of their children.
Having considered all the relevant s 60CC factors I have come to the conclusion that it is not in the best interests of the children that their mother have sole parental responsibility and that the mother and father will continue to share that role.

I certify that the preceding one hundred and eighty four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 December 2013.

Associate:

Date: 17 December 2013

[2013] FamCA 984

17 December 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction