BIRCHER & BIRCHER

FAMILY COURT OF AUSTRALIA

BIRCHER & BIRCHER

[2019] FamCA 890

FAMILY LAW – CHILDREN – With whom the children live and spend time – Where a final parenting order was made in 2014 which provided that the children live with the mother and spend alternate weekends (Thursday to Tuesday) and half school holidays with the father – Where the mother seeks a reduction of the father’s time – Where the father seeks that the children live on a week about basis and spend half of the December/January school holidays with each parent – Where, despite their deficiencies as parents, it is in the best interests of the children to have a meaningful relationship with both parents – Where there are both advantages and disadvantages in continuing the current arrangement – Where at least two of the children have expressed a preference for an equal time arrangement – Where an equal time arrangement may assist in reducing the negative effects that the parent’s conflict is having on the children – Where the children will live in an week about arrangement save for the December/January school holidays where the children will spend half of those holidays with each parent.

FAMILY LAW – PARENTAL RESPONSIBILITY – Where the final parenting order made in 2014 conferred equal shared parental responsibility on the parents – Where both parents seek sole parental responsibility – Where the parents have involved their children in their dispute since birth and the children have suffered as a consequence – Where the children have attended upon 47 different health professionals since birth, often as a result of disagreement between the parents about the reason for the children’s presentation – Where the parent’s behaviour has demonstrated that it is not in the children’s best interests for them to have equal shared parental responsibility with respect to health issues and which high school the two younger children will attend - Where the father will have sole parental responsibility for health issues and the mother will be restrained from interfering in those decisions – Where it was agreed that the mother will have sole parental responsibility regarding which high school the two younger children will attend – Where the parents will otherwise have equal shared parental responsibility.

Family Law Act 1975 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 171
Banks & Banks (2015) FLC 93-637
M & M (1988) 166 CLR 69

APPLICANT:

MS BIRCHER

RESPONDENT:

MR BIRCHER

INDEPENDENT CHILDREN’S LAWYER:

Ms P. Singh-Pillay

FILE NUMBER:

BRC

1459

2011

DATE DELIVERED:

27 November 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

20 - 22 November 2019

REPRESENTATION

FOR THE APPLICANT:

Self-represented

FOR THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr N. McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Cornerstone Law Offices

It is ordered that:

All previous parenting Orders and plans be discharged.

Parental Responsibility

The parents have equal shared parental responsibility for major long term issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth)) for the children B born … 2007, C born … 2008 and D born … 2009 ("the children") save that:
(a)The mother has sole parental responsibility for choosing which high school C and D attend;
(b)The father has sole parental responsibility in relation to all health issues relating to the children and, unless the father agrees in writing beforehand, the mother is restrained from making any decision relating to the children’s health and from making any appointments or attending any appointments (unless the father is unable to attend) for the children with any medical practitioner, therapist or allied health professional and from taking the children (or causing the children to be taken) to any appointments with any medical practitioner, therapist or allied health professional and, in particular, the mother is restrained from taking any of the children for further assessment in relation to any health issues including but not limited to Autism Spectrum Disorder (“ASD”). This injunction against the mother does not prevent her from taking the children for treatment or assessment in cases of a genuine health emergency;
(c)Unless the father provides his written consent beforehand, the mother is restrained from administering any prescribed medication or any homeopathic treatments to the children, unless provided to her by the father, and in circumstances where the father provides medication or treatment to the mother she shall administer it in accordance with the instructions provided.
(d)Unless the father provides his written consent beforehand, the mother is restrained from commencing the children on any diet unless in accordance with written advice obtained by the father from a dietician or medical practitioner treating the children. In the event a diet is recommended, the mother shall comply with its requirements until informed otherwise.

Living arrangements

Save for the December/January school holidays in each year, the children live with the mother and father at all times as may be agreed between them in writing, but failing agreement as follows:
(a)Commencing Friday 29 November 2019 the children live with the father from the after school Friday to before school the following Friday each fortnight with the father or his nominee to collect the children from school or after school care on the Friday they are to commence to live with him each fortnight;
(b)Commencing Friday 6 December 2019 the children live with the mother from the after school Friday to before school the following Friday each fortnight with the mother or her nominee to collect the children from school or after school care on the Friday they are to commence to live with her each fortnight.

December/January school holidays

During the December/January school holidays in each year the children live with the mother and father at all times as may be agreed between them in writing but failing agreement, and commencing in December 2019, with the father in the first half of the school holidays and with the mother in the second half, and commencing in December 2020, with the mother in the first half of the school holidays and with the father in the second half, and alternating in years thereafter.
The week about time in paragraph (3) hereof will recommence after the December/January school holidays as if the school holidays had not interrupted the week about arrangement.
For the purpose of school holiday time in paragraph (4) hereof the school holidays are taken to commence after school on the last day of term and conclude on the morning of the first day of the next school term and the calculation of half school holidays shall be based on the number of nights in each school holidays, and if there is an odd number of nights then the children will spend the extra night with the parent who is spending time with the children for the first half of the school holidays in that year.

Special occasions

On Mother's Day, the mother spend time with the children at all times as may be agreed between the parents in writing but otherwise, if the children are with the father, then from 5.00pm on Saturday to 5.00pm on Mother's Day, and the father shall forego that time.
On Father's Day, the father spend time with the children at all times as may be agreed between the parents in writing but otherwise, if the children are with the mother, then from 5.00pm on Saturday to 5.00pm on Father's Day and the mother shall forego that time.
On each of the children's birthdays, with all the children, at all times as may be agreed between the parents in writing but otherwise as follows:
(a)if a school day then from after school until 7.00pm with the parent who does not have the children in their care on that day; and
(b) if a non-school day from 2.00pm to 7.00pm with the parent who does not have the children in their care on that day.
The parent who does not have the children in their care for the first half of the December/January school holidays shall spend time with the children from 2.00pm Christmas Day to 6.00pm Boxing Day, unless otherwise agreed between the parents in writing.

Communication

The parent who does not have the children in their care shall be at liberty to communicate with the children by telephone on a Wednesday between 6.00pm and 7.00pm for a period of up to 30 minutes in total, with the parent who does not have the children in their care to initiate the call and the parent who has care of the children to facilitate the call, including but not limited to ensuring that any mobile phone is switched on and charged and that the children are provided with privacy for the call as well as ensuring the children are not in earshot of the parent and that the parent is not in earshot of the call.
Neither parent during telephone communication with the children shall pass messages to the other through the children.
The parents shall communicate with each other by means of a password protected email communication book (both parents indicated that they understood what this required of them) and shall ensure that the communications relate to the children only and with all communication to be respectful and polite.

Changeovers

Changeovers that do not take place at the children's school shall take place by the parent who is to have the children come into their care collecting the children from the residence of the other parent, unless otherwise agreed by the parents in writing.
For the purposes of the preceding paragraph:
(a)the parent collecting the children shall do so from the front boundary of the property and shall not enter the property unless invited to do so;
(b)both parents shall conduct themselves politely and respectfully at all times and ensure any person accompanying them conducts themselves politely and respectfully at all times;
(c)both parents shall use their best endeavours to ensure that any other person who may be present at the changeover does not intervene either physically or verbally in the process; and
(d)each parent shall be at liberty to send an agent provided such agent is a person know to the children and the collecting parent has provided notice to the other parent by means of SMS or email.

Specific issues

The father shall keep the mother informed of the name and contact details of any treating medical practitioners, therapists or allied health professional for the children and in the event the father is unable to attend an appointment for the children the father shall forthwith inform the mother so that she may attend if she is available.
This Order be sufficient authority for each parent to obtain from the children's medical practitioners, therapists or allied health professional, at their own cost, all information normally provided to parents.
Each parent shall notify the other as soon as reasonably practicable of any serious illness or medical emergency related to the children, when they are in their care.

Schooling

Save as provided in this Order, neither parent shall enrol the children in an extracurricular activity that occurs in whole or part in the other parent's time without their written consent first obtained. No consent is required if the children are not required to attend the activity during the time they are living with the other parent.
Each parent shall be at liberty to nominate one extracurricular activity for each of the children to attend on a weekly basis, and both parents will ensure the children attend their respective activities as scheduled.
The parent who nominates the extracurricular activity will pay for the activity for that child.
Each parent shall be at liberty to attend all school and extracurricular activities normally attended by parents and shall not prevent the children from interacting with the other parent or their friends or family who may be present.
This Order be sufficient authority for each parent to obtain from the children's school and extracurricular activity providers, at their own cost, all information normally provided to parents.

Passports/Overseas travel

Notwithstanding the conferral of equal shared parental responsibility for the children, B born … 2007, C born … 2008 and D born … 2009, on the mother and the father (save for health and choice of high school), MR BIRCHER is hereby authorised to apply for, obtain and renew Australian passports for the said three children without the consent of the mother, MS BIRCHER and without the need for the mother to sign any applications for the issue or renewal of any such passports.
The father is permitted to retain possession of the children's passports other than at such times as when the children are travelling with the mother.
The mother and father are each permitted to take the children out of Australia for the duration of their respective holiday time provided for in this Order (any longer time must be agreed between the parties in writing prior to departure) provided that the travelling party provides to the other parent no less than 45 days written notice of the intended travel, including a detailed itinerary of proposed travel including dates of departure and arrival at the various destinations and copies of all the children's return airline tickets or if by sea the ship's itinerary and ticketing documentation.
The father shall deliver the children's passports to the mother no less than 21 days prior to the proposed departure of the children from Australia with the mother.
In the event that a visa is required to be issued, the mother shall provide to the father, in writing, the relevant time period required for the issuing of the visa and upon receipt of this information the father shall provide the mother with the children's passports within seven days or at the next changeover, whichever is the earlier.
Within seven days of the mother returning to Australia after overseas travel with the children the mother shall deliver the children's passports to the father.
The mother and the father and their servants and agents are restrained from taking or sending or attempting to take or send the children from the Commonwealth of Australia on a non-holiday basis during any period where attendance at school is required.
Notwithstanding the preceding paragraph, a child will be permitted to travel overseas on an official and supervised school activity provided the parties comply with paragraphs 25, 26, 27, 28 and 29 above.
Until each child reaches adulthood, the parents be restrained from obtaining a passport for the children from the United Kingdom.

Other

Each parent shall ensure the other is properly listed as the other parent and primary emergency contact with the school, extracurricular activity providers, treating medical practitioners, therapists, allied health professionals or any other documentation where such details are required.
Each parent shall have the day to day responsibility for the children including but not limited to occasions when the children are unwell, unless a contemporaneous medical certificate is provided to the other parent detailing the reasons why the children (or one of them) cannot move into the care of the other parent.
Each parent shall keep the other advised of their address, contact telephone number and email address and shall notify the other within 48 hours of any change.
The father is authorised to provide a copy of any reports relating to the children’s health and welfare obtained for the purposes of these proceedings and a copy of the reasons for judgment to any treating medical practitioner, therapist or allied health professional who is engaged by him to provide treatment to the children and to provide a copy of Dr G’s report to the Department of Human Services (Centrelink).
The father be authorised to provide a copy of this Order to the children’s schools and after school care facility and the Department of Human Resources (Child Support Agency).
The father take all steps necessary to obtain information from the child B’s school to assist Dr G in completing her assessment of him.
Any outstanding applications be dismissed.
In the event that the independent children’s lawyer requests the opportunity to explain this order to the children, the parent with whom the children are then living is to bring the children to the appointment as advised by the independent children’s lawyer. If Dr H is requested by the independent children’s lawyer to attend, the costs of Dr H will be borne by the father.
The independent children’s lawyer be discharged after compliance with paragraph (40), if the independent children’s lawyer chooses to take that course.

Notation

A.The mother has agreed to pay the children’s school fees and on this basis the father agrees to the mother choosing the high school for the younger two children. The mother is already paying the school fees for the child B.
B.The parents agree that neither parent is to question the children about the other's household or personal life.
C.The parents agree that neither parent shall discuss adult issues with the children and specifically these Court proceedings.
D.The parents agree that neither parent is to denigrate the other parent, their family or friends in the presence or hearing of the children and shall use their best endeavours to ensure that other persons do not do so.
E.The mother agrees that she will not attend, nor request any other person to attend on her behalf, at the children’s school during the time the children are living with the father unless specifically requested to do so by a teacher and, in those circumstances, she will attend at a time when the children are in class so as not to disturb them.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1459 of 2011

MS BIRCHER

Applicant

And

MR BIRCHER

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

B, C and D are three children who have lived their entire lives in what at least one of them has described as ‘a war’. This is a reference to their parents long history of putting their own self-righteous ‘point scoring’ ahead of their children’s welfare.
The children have lived in a shared care arrangement since a final parenting order was made in 2014 (and amended in 2015 and 2017) (“the 2014 order”). The children live with their father from Thursday to Tuesday each alternate week and otherwise with their mother. They also spend half the school holidays with each parent. The parents have equal shared parental responsibility.
The current proceedings were commenced by the mother in January 2018 seeking a reduction of the father’s time with the children to alternate weekends from Friday to Sunday and no school holiday time (other than the continuation of alternate weekends). She also sought sole parental responsibility. The father responded by seeking an increase in his time with the children from five days per fortnight to seven days per fortnight and for sole parental responsibility for specific major long term issues.
At the end of the trial the mother contended for a continuation of the current arrangements in relation to the time the children spend with each parent but pressed for sole parental responsibility. The parents agreed with many provisions of the order proposed by the independent children’s lawyer (“ICL”) (most of which reflected a restatement of the existing parenting order).

While I seriously considered dismissing the competing applications, I have ultimately decided that it is in the best interests of the children to vary the existing arrangements to week about and for the father to have sole parental responsibility for all matters relating to the children’s health. It was ultimately agreed between the parties that the mother would have sole parental responsibility to decide which high school the younger two children would attend and that she would bear sole responsibility for the school fees.

Issues

At the time this matter was set down for trial (in July 2019) the following issues were identified with the assistance of the parties and the ICL as being the significant issues for determination:
a)Given the ongoing conflict between the parents, is it in the children’s best interests to have an ongoing relationship with both of the parents?
b)If it is not in the children’s best interests to have an ongoing relationship with both of the parents, who should they live with?
c)If it is in the children’s best interest to have an ongoing relationship with both of the parents:
i)Should there be any change to the current live with/spend time with orders?
ii)Which parent should make decisions about major long term issues for the children?

Proposals

The mother proposes that the children continue to live with her and spend alternate Thursdays through to Tuesdays with the father (the current arrangement) and that she have sole parental responsibility for major long term issues.[1]
[1] The mother abandoned the order sought by her in her Amended Initiating Application filed (save for paragraph 2) and adopted the order recommended by the ICL save for paragraphs 2, 9 and 33.
The father proposes that the children live in a week about arrangement with changeover on Sunday evenings, with that arrangement to continue throughout the school holidays save the December/January holidays which would be shared equally. He proposes that he have sole parental responsibility for specific major long term issues but in particular decisions about the children’s health.[2]
[2] The father did not press most of the orders sought by him in exhibit 8 and agreed to the mother having sole parental responsibility to decide which high school the younger two children attend on condition that she would be solely responsibility for the fees and adopted many of the provisions recommended by the ICL in her draft order.
At the conclusion of the trial the ICL recommended a continuation of the current parenting order save with some variation to ancillary provisions of the order.[3]
[3] The precise terms of the order recommended by the ICL is set out in exhibit 7.

Background

The mother and father commenced cohabitation in 1998 and married in 2003. They separated on a final basis in 2012 and divorced in 2014.
They have three children together, namely, B born in 2007, C born in 2008 and D born in 2009.
The mother lives with the children nine nights per fortnight and is not employed. The mother receives Centrelink payments and child support of approximately $966 per fortnight. Her total income is approximately $64,000 per annum. The mother has not re-partnered and lives with her parents.
The father lives with the children five nights per fortnight and is employed full time as a professional. The father has re-partnered but he and his partner, Ms J, do not live together although she generally stays one night when the children are with the father. Ms J has four of her own children.
The parents have been involved in litigation against each other every year since 2011. The children are acutely aware that their parents do not like each other and that much of their dispute relates to the parents inability to agree on parenting issues e.g. schooling, extracurricular activities, school camps, uniforms, diet, health issues etc.
There are many examples of the parents involving the children in their conflict and failing to prioritise their children’s welfare but I set out just a few.

4 February 2016 incident

On 4 February 2016 the children attended a doctor’s surgery at 8.30am with their mother. After the appointment the mother intended to drop the boys at school and C was to go to her father who was expected by the mother to meet her at the children’s school. C had recently undergone surgery and was not attending school. The 2014 order provided for the children to be in the care of the father from 8.30am that morning.
The father attended the consultation between the doctor and the children as he was entitled to do under the 2014 order. At the end of the consultation the mother put the children in her car. She says that the father did not say anything other than “follow the orders”. She says she did not know what he meant. An argument ensued between the parents outside the car but in clear sight of the children. The father stood behind the mother’s car. The mother reversed back three times and each time the father moved backwards but not out of the way. On the fourth reverse the mother was able to leave the car park. The children witnessed this incident and were very distressed by it.
The mother drove the short distance to the school where the boys were dropped off and C went into her father’s care. Once the mother had left, the father signed the boys out of school and took all three children home with him.
The mother was asked during her oral evidence why the changeover did not simply happen at the doctor’s surgery. The mother conceded that this could have happened but added, disingenuously in my view, that she was ignorant of the father’s purpose in being there. She said it was not a “normal situation” and she felt intimidated by the father whom she described as aggressive. The incident could so easily have been avoided by the mother suggesting that the children go with the father.
When the father was asked whether, in hindsight, it would have been better for him to simply meet the mother at the school in accordance with the arrangements made the night before he responded – “it would have been better in hindsight if C had been handed over”. His reply is a stunning example of his lack of insight into the impact of his actions on the children. When it was clear the mother was not going to effect the changeover of the children in the carpark the father could so easily have left and met her at the school.
During cross-examination of the father by the mother, the Court was subjected to the unedified bickering between the parties over this incident (despite it having occurred over three and a half years ago) and their conduct had to be called to a halt. Their respective self-righteousness was breathtaking.
After the incident, the police and the Department of Child Safety, Youth and Women (as it is now called) (“the Department”) became involved. The father was interviewed at his home while the children were there. Each party commenced proceedings against the other for a domestic violence protection order. Temporary protection orders were made. There are no current protection orders in place.
Upon the children’s return to the mother after the incident, she says that they repeatedly stated that she had run over the father. The mother took the children to task for telling lies and showed them a video recording that she had made of the incident from the ‘dash cam’ in her car. The mother demonstrated no capacity to reflect upon the complete inappropriateness of her actions and actually sought to justify her conduct. Not for a moment did she consider how upsetting this whole incident had been for the children or try to see it from their perspective.

After school care

When the children are in the father’s care they attend after school care three times per fortnight. The mother objects to the children being in after school care for a number of reasons including their “condition” and because she is available to look after them. The father has informed the organisation providing this service that the mother and the maternal grandparents are “not legally entitled” to collect the children. He has not listed them as emergency contacts. The emergency contacts he has named are his parents and his partner, whom he described on one of the after school care forms as the children’s “step-mother”. The father says this was a mistake.
A ridiculous situation ensued on 27 June 2019 when the maternal grandmother went to after school care while the parents were both at Court, for the purpose of checking on B who had allegedly been in pain that morning with a toothache. Her attendance at the after school care facility resulted in the lock down of the facility. The father was in touch with the facility but did not inform them that the person attending was the maternal grandmother and it was fine for her to check on B. Police were notified. It was all so unnecessary, as the father rather belatedly acknowledged.

Extracurricular activities

The children are unable to play the same sport in each household. For example, C plays sports when she is with her father but her mother will not take her to sports when she is with her. She maintains that the child does not like it but the independent evidence from the family report writer, Mr K’s recent interview with C suggests otherwise. A second example is that C is unable to attend school choir because the mother will not take her while she is in her care and the school does not allow fortnightly attendance.
The father’s handling of this issue also deserves condemnation in that he showed C the email he sent the mother about the choir issue and told her that he had not received a response. His actions demonstrated to C that she was in the middle of a conflict between her parents about the issue.

Ear piercing

C had her ears pierced on 12 August 2016 while she was in the father’s care. The father went ahead with the ear piercing despite knowing that the mother did not agree. C was again placed in the middle of the dispute and her anxiety about the issue was only mollified by the involvement of C’s then treating psychologist, Dr H. The father was found on 24 May 2018 by another judge of this court to have contravened the order conferring equal shared parental responsibility on him and the mother by unilaterally having C’s ears pierced without the mother’s knowledge or consent.

Health issues

The children have attended upon 47 different health professionals since birth.[4] The children’s diagnoses of Autism Spectrum Disorder (“ASD”) in 2010 (B) and 2012 (C and D) have been an ongoing source of significant dispute between the parents. The mother maintains that the children have this disorder while the father disputes it. The children receive educational and other support as a result of the diagnoses and the mother receives a carer’s pension of approximately $900 per fortnight.
[4] Exhibit 4.
The children were recently assessed by Dr G, a paediatrician, who opined that C and D do not have ASD and should be treated as “normal developing children, just like any other children”. In particular, she said that from the information she had received from their school and from her own observations, C and D do “not actually require that much help at school … the children are actually doing very well … coping very well at school” and “they are doing really well … even with the interpersonal relationships and conflict resolution … they’re actually doing very well. And academically, they’re actually doing really well as well”.
Dr G also reviewed early medical and psychological reports for the children and opined “I definitely wouldn’t be able to say that they would still meet that criteria for Autism Spectrum Disorder anymore”. Dr L, a psychiatrist, opined in a report dated 8 June 2018 that “C did not present with features of a young girl with ASD”. In Dr G’s view, it is necessary to review diagnoses of ASD every three years “because it is a developmental disorder … which means that symptoms can change. And sometimes, obviously, they have learned how to communicate and how to cope and things like that all the time as they get more mature”. Dr G opined that exposure to ongoing conflict was “definitely … affecting them emotionally”.
Unfortunately, Dr G was not provided with independent information from B’s school. The absence of that information was not satisfactorily explained. However, based on her own observation, Dr G opined that B “does display certain traits that may meet the criteria of Autism Spectrum Disorder however, due to significant discrepancies in the clinical history given by the parents, I will need a third party observer before I can confirm or exclude the diagnosis”. Unfortunately, it seems Dr G will have to further assess B once she has the independent information she requested from his school.
However, from comments made by Dr G it seems possible that B’s presentation may have more to do with the impact of years of exposure to parental conflict rather than ASD. In Dr G’s view “he will still struggle to fully understand and navigate interpersonal relationships due to constant exposure of parental conflict growing up. This also causes insecurity, uncertainties and anxiety.”
The mother demonstrated significant resistance to any suggestion that C and D do not have ASD and indicated her intention to continue to rely upon the old diagnoses for the purposes of continuing to receive a carer’s pension and educational support which the mother believes C and D require.
Another example of conflict arising between the parents in relation to the health of the children is the mother sending an email to the school attended by D in October 2018 attaching a report from the Australian Dyslexia Association purporting to confirm that D suffers from dyslexia. The mother requested that the school make “adjustments” for D accordingly. The father disputes the diagnosis of dyslexia and informed the school that the report was gained by the mother “in direct contravention of Federal Court (sic) Parenting Orders”.

Applicable legal principles

When considering what parenting order is proper I am obliged to apply Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[5]
[5]Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
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 communication a child is to have with another person or persons; and
d)The allocation of parental responsibility for a child.
The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[6] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[7]
[6]Baghti & Baghtiand Ors [2015] FamCAFC 171.
[7]M & M (1988) 166 CLR 69.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[8]
[8]Banks & Banks (2015) FLC 93-637.
I turn now to consider the significant issues in the context of the evidence and applicable legal principles.

Given the ongoing conflict between the parents, is it in the children’s best interests to have an ongoing relationship with both of the parents?

It is common ground between the parties that there is a long history of conflict between them and that their children are acutely aware of it. By way of example, the children’s evidence, as conveyed by the family report writer, Mr K, and an independent paediatrician, Dr G, demonstrates with significant clarity the children’s knowledge of their parents’ conflict and the impact it is having on them.
While each parent sought to attribute a greater portion of the blame for the conflict on the other parent, it is also common ground that they must each bear some responsibility for the conflict. It is also common ground between the parties and the ICL that, despite the conflict, the children should have an ongoing relationship with both parents.
This position accords with the opinion of Mr K and it is apparent from the other experts who have been involved with this family that the children have a close and loving relationship with each of their parents and benefit from those relationships, despite being embroiled in their parents’ conflict.

Dr H, a clinical psychologist whom the children consulted over an extended period in late 2016 and for another four sessions in late 2018, identified specific disadvantages for the children if they were deprived of one parent all together or even for extended periods of a month at a time. In her view, the internal “loyalty conflict” for each child would likely cause them to feel guilty about the absent parent and a sense of responsibility for their absence. Additionally, Dr H opined that this loyalty conflict may in turn detrimentally impact on the child’s relationship with the ‘present’ parent in that the child may blame that parent for the absence of the other parent. The child may also come to idolise the absent parent to the detriment of their relationship with the present parent.
Despite several experts opining that the parental conflict is having a detrimental effect on the children, the identified benefits that the children receive from their relationship with each parent and the detriment to the children if a parent is removed from them for extended periods, causes me to accept that, on balance, it is in the best interests of the children to have an ongoing relationship with both parents.

If it is not in the children’s best interests to have an ongoing relationship with both of the parents, who should they live with?

Given my finding that it is in the children’s best interests to continue to have an ongoing relationship with both parents there is no need to consider this issue.

If it is in the children’s best interest to have an ongoing relationship with both of the parents:

Should there be any change to the current live with/spend time with orders?

For the last five years the children have lived with the father from Thursday to Tuesday in each alternate week and with the mother at all other times. They are used to that arrangement and as Mr K opined, the children, or at least B, has a sense of anxiety about changing the current arrangement because of the uncertainty about what new conflict might arise if there is a change.
According to Mr K, the children seem to be doing better than expected at the moment, in the context of coping with their parents’ conflict (Mr K saw the children most recently in June 2019). Mr K said that the children have “developed learned behaviours to cope with it [the conflict] and trying to reduce it”. He considered that the children had developed some resilience in navigating their parents’ conflict.
Dr H was also of the view that when she last saw the children at the end of 2018 they seemed less overwhelmed by the conflict and were coping with it better given their continued maturity and development.
Nevertheless, Mr K observed that the children’s anxiety is particularly heightened when “the parents come into contact with each other or if they have to be vigilant about how they express information to each parent about the other parent”. This heightened anxiety was evident when B was recently seen by Dr G in the presence of his parents.
While a continuation of the current ‘live with’ arrangement has advantages in that it is what the children are used to and change may cause anxiety, there are disadvantages in continuing the current arrangement.
Firstly, there is an ongoing issue about the children or at least one of them returning to school on the Tuesday of every second week in the wrong uniform. Secondly, the children’s school week is interrupted in the middle of every week which can create issues about homework. Thirdly, the current arrangement does not accord with the expressed wishes of at least two of the children who have expressed views that an equal time arrangement is their preference and reflects what is “fair”, although B most recently told Mr K he was worried about the impact of changing the current arrangements. B nevertheless stated that there was not much difference in each household.
When asked about the influence of the father on the children’s stated wishes, Dr H was of the opinion that she had a good rapport with the children who were not afraid to express their views. She was of the view that the children’s developed sense of fairness was the driving force behind their stated wishes. Dr H referred to some research that indicates “that if children believe that it’s fair then that can actual[ly] reduce their self sense of loyalty conflict. So even though the external conflict between parents may not be resolved … if the children themselves feel that their own loyalty conflict is even reduced by a small amount that can in some cases have a positive effect”.
At times the children have expressed views to get away from their parents e.g. B has said he wants to live with friends and D has said he would like to move to Paris or the moon. I consider that such wishes reflect the children’s frustration with their parents’ ongoing conflict.
Mr K initially opined that there would be a greater need for co-operation and communication with a week about arrangement but ultimately conceded there was unlikely to be much difference between the current situation and equal time. He opined that an advantage with equal time would be an increase in the children’s time with the father who encourages resilience in the children via a greater range of outdoor activity. Mr K emphasised the importance for the children engaging in activities independent of the parents and the development of peer relationships. In his view, the continuity of such activities across the households was very important.
I have been greatly assisted in this matter by reports and oral evidence of various experts, in particular, Mr K, Dr H and Dr G. I generally accept their opinions other than Mr K’s apparent preference for keeping things as they are. To be fair to Mr K, he did say he considered the option of no change to be the safest rather than the best option.
It is true that the children will likely spend an extra two afternoons per fortnight in after school care in an equal time arrangement when living with the father but I do not see that as a significant disadvantage.
One issue about which I have given particular thought is the mother’s reaction to equal time. The father conceded that prior to the finalisation of parenting proceedings in 2014 he had said that he would continue to seek equal time “for the next 14 years”. The suggestion was raised during this trial, that equal time might have been his mission all along. However, contrary to that theory I note that the father consented to the 2014 order which provided him with less than equal time with the children. Furthermore, I note that it was not the father who recommenced parenting proceedings to change the 2014 order.
On balance I consider that the advantages to the children spending uninterrupted alternate weeks with each parent outweighs the possible detriment to them including being exposed to the mother’s potential resentment of an equal time arrangement. I also consider the father’s proposal of the week about arrangement continuing uninterrupted throughout the year, apart from the December/January school holidays, to have merit because it removes yet another source of conflict i.e. calculating half the holidays.
Although the parents have not engaged in ‘all out’ conflict in front of the children since 4 February 2016, the children are well aware of the parent’s dislike for each other and I do not consider it will be of benefit for them to endure the anxiety of anticipating their parents coming into contact every Sunday, as proposed by the father. If changeovers occur at school there will be no need for that contact and if changeovers occur on Fridays the children will have the weekend to settle before returning to school the following Monday. To the extent that changeovers are unable to occur at school, those occasions will be largely limited to school holidays.

Which parent should make decisions about major long term issues for the children?

The mother has been a full time mother to the children all their lives. She has fulfilled the primary role of facilitating their attendance upon a range of health professionals over the years. These children have attended upon 47 different health professionals since birth, often as a result of disagreement between the parents about reasons for the children’s presentation from time to time. Even accounting for some of those attendances being upon different doctors at the same GP practice, this appears to be an extraordinary number. Mr K described it as “excessive” and opined that “if there was one thing the court could do [it] is [to] put an end to that, so that that sort of diagnosis treatment doesn’t continue.” I think he has a point.
The father raises the excessive attendance at health professionals as a significant issue, suggesting that in the mother’s determination to gain access to a Centrelink Carer’s pension she has engaged in ‘doctor shopping’ and has in effect created a false reality for the children that they suffer a disability when they do not. I do not need to determine this issue. The fact is the children were diagnosed in 2010 (for B) and 2012 (for C and D) with Autism Spectrum Disorder (“ASD”) and it may well be that as a result of the various treatments the children have undertaken (including individual counselling and assistance at school), their symptoms have ameliorated. However, I do find the mother’s rejection of Dr G’s diagnosis that at least C and D do not meet the criteria for ASD to be curious to say the least. One would have thought she would be delighted to hear that the children are doing so very well at school across all areas.
Unfortunately the conflict between these parents will continue so there needs to be a mechanism for decisions about the children’s health issues to be resolved. The parents, or more importantly the children, cannot continue to live their lives through the courts. Furthermore, the children cannot continue to be caught in the middle of disputes about whether or not they have an illness or disorder or require medication or not. Another example of the impact on the children of the parent’s opposing views is that they take prescribed medication in one household for sleep disturbance (the mother gives the children Melatonin each evening) and not take it in the other household (the father says the children do not have trouble sleeping in his household). The children seem, on the father’s account, to present as healthier and with fewer symptoms in his household and the father appears to be more amenable to the idea that the children are healthy.
Accordingly, I propose to order that the father have sole parental responsibility for all health issues and, so as to ensure the children receive the same medical care in each household, I propose to restrain the mother from taking the children for assessment and from administering any medication, be it homeopathic or prescription, unless in accordance with a written advice from the father. My reason for including homeopathic treatment is that the mother has a history of failing to give the children prescribed medication in favour of administering homeopathic treatments.
Given the anxiety experienced by the children when the parents come into direct contact I intend to restrain the mother from attending medical or health related appointments for the children unless the father is unable to attend or the father provides his prior written consent. The parents behaviour in front of Dr G and B recently, causes me to find that the children should be spared the anxiety of witnessing first hand their parents dislike of each other wherever possible.
I do not intend to prescribe the medical centre or paediatrician or other health professionals that the children see from time to time because the father will have sole parental responsibility for all health issues. However, as the children have attended at the M Medical Centre it would seem sensible for them to continue at that centre and for B to continue to see Dr G as required.
At the end of the trial the parties agreed that the mother could make the decision about where the younger two children go to high school (it seems likely that they will attend the same high school as B). The parents were unable to agree about B’s high school earlier this year and the Court had to determine the issue. The dispute caused significant stress and anxiety for B. In the current proceedings the mother has agreed to pay the school fees for C and D as she does for B. On this basis the issue of which high school C and D will attend was resolved.
It is not apparent that there are other major long term issues which will require decisions e.g. religion, names etc. but in the event there are, I propose to order that the parents have equal shared parental responsibility about major long term issues other than health and the high school to be attended by C and D. While a joint decision will be required about other major long term issues I consider the likelihood of dispute about such matters to be less likely.

Other matters

The 2014 order has been varied twice. While the parents and ICL propose that most of the 2014 order will remain the same, it seems preferable to have one single order that will reflect the entirety of the current parenting arrangements. Accordingly, I propose to discharge the 2014 order and replace it with a single order.
While the parents agreed to most of the provisions of the draft order recommended by the ICL, I do not propose to include some of the provisions in the order because I am concerned that they would be difficult to enforce and would rely on the children providing information to the parents. The unintended consequence of such provisions may well prolong and encourage the continued involvement of the children in the conflict. I will include a number of the provisions as a notation to the order and encourage the parents to embrace the spirit of the order proposed by the ICL in those respects. I have also excluded the restriction on the parents travelling to a non-Hague convention country. There is no evidence that either parent is a flight risk and the father’s ability to obtain United Kingdom passports for the children is satisfactorily addressed in the order proposed by him which I have adopted.

Conclusion

The parents in this case have involved their children in their disputes since birth. The children have suffered as a consequence. While I considered making an order that the children live with one parent and spend no time with the other, I have been persuaded that despite their deficiencies as parents, their children love each of them and benefit from their relationship with their respective parents. The children would miss each of their parents if they were deprived of regular and significant time with each of them.
Leaving the current arrangements in place was also a consideration but ultimately I have determined that on balance the advantages of moving to an equal time arrangement with changeovers on Fridays outweighs the detriments, and I will so order.
There needs to be a mechanism in place for decisions to be made about health matters and high school for the younger two children to avoid further litigation. The parents agreed about the high school determination but were at odds about health issues. I have decided that the father should have sole parental responsibility for health issues and the mother will be restrained from interfering in those matters.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 27 November 2019.

Associate:

Date: 27 November 2019

[2019] FamCA 890

27 November 2019

Key Legal Topics

Areas of Law

Family Law