Bowen & Bowen (No 2)
[2022] FedCFamC1F 679
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bowen & Bowen (No 2) [2022] FedCFamC1F 679
File number(s): WOC 1194 of 2019 Judgment of: CHRISTIE J Date of judgment: 12 September 2022 Catchwords: FAMILY LAW – FINAL PARENTING – where the issues were narrowed after the making of consent orders - where some of the issues remaining were justiciable - where the parents’ communication is poor - where equal shared parental responsibility orders are made by consent notwithstanding reservations Legislation: Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 65DAA, 68B
Australian Passports Act 2005 (Cth) s 11(1)(a)
Division: Division 1 First Instance Number of paragraphs: 108 Date of hearing: 25-26 August 2022 Place: Sydney Counsel for the Applicant: Mr Harper Solicitor for the Applicant: Meehans Solicitors Counsel for the Respondent: Mr Wong Solicitor for the Respondent: Hansons Lawyers Counsel for the Independent Children's Lawyer: Ms X Solicitor for the Independent Children's Lawyer: Johnson Vardanega Lawyers ORDERS
WOC 1194 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BOWEN
Applicant
AND: MR BOWEN
Respondent
and: INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
12 September 2022
THE COURT ORDERS THAT:
1.That the Mother and Father shall have equal shared parental responsibility for X born in 2009, Y born in 2010 and Z born in 2013 (“the children”) in relation to the major long-term issues including, but not limited to, issues of that nature about:
(a)The children’s education (both current and future); and
(b)The children’s religious and cultural upbringing; and
(c)The children’s health including physical and mental health; and
(d)The children’s names; and
(e)Changes to the children’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
2.Except in the event of a medical emergency, the parents are to consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows:
(a)inform each other in writing promptly about the decision that needs to be made relating to a major long-term issue for the children;
(b)discuss the decision that needs to be made in writing and provide all relevant information that must be considered to make an informed decision on the issue;
(c)allow each other a period of not less than 7 days to consider the decision to be made;
(d)advise each other promptly in writing whether there is an agreement in relation to decision to be made; and
(e)in the event that mother and father are unable to reach a decision about a long-term major issue for the children, the mother and the father will participate in family dispute resolution and will each make a genuine attempt to resolve the impasse and make a joint decision about the long-term issue or issues that need to be made for the children;
(f)that in the event that the parties are unable to reach a joint decision about education as a major long term issue after family dispute resolution, then the Mother shall make that decision and inform the Father in writing within 24 hours of same occurring; and,
(g)that both parents be restrained by injunction from causing any of the children to attend a general practitioner other than at D Medical Centre unless agreed between the parents in writing.
3.That in the event of a medical emergency, the parent who has the care of the children at that time is to do all things necessary to contact the other parent immediately to inform them of the medical emergency and consult with them as to any medical decisions that need to be made but in the event that they are unable to reach the other parent they are authorised to make such medical decisions on their own as may be required until the other parent is able to be contacted.
4.Notwithstanding the provisions of Order 1, each parent will be responsible for the daily care, welfare and development of the children when they are living with or spending time with the parent.
5.That the children, namely X born in 2009, Y born in 2010 and Z born in 2013 (“the children”) shall live with the mother.
6.The children spend time with the father during school term:
(a)In 2022 on the first weekend of each term and each alternate weekend thereafter from 4.00 pm on Friday until 7.00 pm on Sunday;
(b)Commencing Term 1 2023 from after school Friday until before school Monday (or before school Tuesday if Monday is a public holiday) commencing on the first Friday after school term commences and each alternate Friday thereafter.
7.The children spend time with the father during school holidays:
(a)During the mid-term school holidays (following Term 1, Term 2 and Term 3) from after school on the last day of the school term until 7.00 pm on the middle Saturday;
(b)During the holidays at the conclusion of Term 4 2022 from the conclusion of school on 19 December 2022 until 4.00 pm on 23 December 2022 and from 10.00 am on 11 January 2023 until 10.00 am on 20 January 2022;
(c)During the holidays at the conclusion of Term 4 2023 and each alternate year thereafter from the conclusion of school on the last day of term until 10.00 am on the third Saturday after school concludes; and
(d)During the holidays at the conclusion of Term 4 2024 and each alternate year thereafter from 10.00 am on the third Saturday after school concludes until the commencement of the school term.
8.The children spend time with the father on special occasions:
(a)In 2023 and each odd numbered year thereafter from 4.00 pm on 23 December to 2.00 pm on 25 December;
(b)In 2022 and each even numbered year thereafter from 2.00 pm on 25 December to 7.00 pm on 27 December;
(c)If Easter falls outside the school holiday period in even numbered years then from after school Thursday to before school Tuesday;
(d)If the children are with the mother on the morning of their birthday then they shall spend time with their father from after school, or at 3.00 pm on a non-school day, to 7.00 pm;
(e)From after school on the Friday before father’s day until before school on the Monday after father’s day; and
(f)If the children do not wake up in the father’s home on his birthday then from after school, or at 3.00 pm on a non-school day, to 7.00 pm on that day.
9.The children’s time with the father is suspended on:
(a)In 2022 and each even numbered year thereafter from 4.00 pm on 23 December to 2.00 pm on 25 December;
(b)In 2023 and each odd numbered year thereafter from 2.00 pm on 25 December to 7.00 pm on 27 December;
(c)If Easter falls outside the school holiday period in odd numbered years from after school Thursday until before school Tuesday;
(d)From after school on the Friday before mother’s day until before school on the Monday after mother’s day;
(e)If the children are in the father’s care on the morning of their birthday then from after school, or at 3.00 pm on a non-school day, to 7.00 pm; and
(f)If the children do not wake up at the mother’s home on her birthday then from after school, or at 3.00 pm on a non-school day, to 7.00 pm on that day.
10.Changeover on school days shall occur at the back gate of F School on G Street and the father shall not enter the grounds of the F School for the purpose of changeover.
11.That unless otherwise specified in these Orders or agreed between the mother and father from time to time:
(a)The father or his nominee collecting the children from McDonalds Suburb H at the commencement of his time with the children; and
(b)The mother or her nominee collecting the children from McDonalds Suburb H at the commencement of her time with the children.
12.The parents are restrained from engaging in conduct which is intimidatory of the other parent.
13.The parents are to communicate with each other pursuant to these orders as follows:
(a)By way of the Our Family Wizard Application for non-urgent parenting matters regarding the welfare of the children; and
(b)By telephone only in relation to urgent matters regarding the welfare of the children.
14.The parents are restrained from communicating except via the Our Family Wizard Application, save in an emergency.
15.The parties are restrained from allowing the children to use or view the Our Family Wizard Application.
16.The children communicate with the parents as follows:
(a)Until the commencement of Term 1 2023 by telephone each Tuesday and Friday evening that the children are not otherwise in their care between 6.45 pm and 7.15 pm and the parent who is with the children will facilitate the commencement of the call; and
(b)Thereafter at all reasonable times on a mobile phone provided by the father to X and made available to the children, which calls shall be initiated by the children in accordance with their wishes.
17.The mother and father shall keep each other advised of their contact telephone numbers and give 21 days notice of any change to their residential addresses.
18.The mother and father do all things necessary to authorise the children’s school to provide to the other parent on a regular basis copies of all school reports newsletters and other information regarding the children’s school activities.
19.The mother and father be entitled to attend all school functions, sports carnivals and other school events in which parents are invited to attend.
20.The Mother and Father shall ensure that any clothing or other items that are with the children at the commencement of their time are returned to the other parent at the conclusion of their time.
21.Notwithstanding Order 20, both parents shall ensure that they maintain a set of sporting equipment for the children.
22.The mother and father be entitled to obtain directly from any school attended by the children or any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for the purpose the mother and father shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
23.The mother and father immediately notify the other parent of any illness, medical, emergency, serious medical problem, hospitalization or accident in relation to the children when the children are in their care. That together with such notice the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment for the children.
24.That pursuant to s 68B of the Family Law Act 1975 (Cth) and on a without admissions basis, each parent is restrained by injunction from:-
(a)Denigrating the other party and/or other parent to or in the presence or hearing of the children and shall do all things within their power to ensure no other person does so;
(b)Discussing these proceedings or any issue or allegations raised therein with the children, causing or permitting any other person to do so save the family consultant or independent children’s lawyer, a caseworker or police officer in the course of their duties, such counsellor as the children may attend from time to time;
(c)Sending any abusive and/or derogatory texts, emails or other written communications to the other parent or members of the other parent’s family or household;
(d)Making any negative, critical, belittling, insulting or derogatory comments about the other parent or members of the other parent’s family or household (including, but not limited to, questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of any of the children or via written correspondence which may be viewed or accessed by the child (including via SMS or on social media) or being complicit in any other person doing so;
(e)Questioning the children about the personal life of the other parent;
(f)Using any of the children as messengers between the parents;
(g)Discussing with or showing the children any document filed in or prepared in connection to these proceedings or any allegation made or evidence during these proceedings or allowing any other person to do so; or
(h)Showing or providing a copy of any document filed in or prepared in connection to these proceedings to any non-party (except as otherwise provided for by these Orders or for the purpose of obtaining legal advice).
25.Both parents may remove the children from the Commonwealth of Australia in accordance with s 65Y of the Family Law Act 1975. In relation to such travel the following conditions will apply:
(a)Not less than 60 days before the travel date, the parent intending to travel with the children will advise the other parent in writing;
(b)Together, the parent intending to travel will provide to the other parent:
(i)the proposed travel itinerary;
(ii)a contact telephone number for the travelling parent and the children at the address at which they will predominately be based;
(c)Within seven days of the information being provided, the travelling parent will provide to the other parent:
(i)A copy of the full itinerary;
(ii)A copy of the return prepaid air travel tickets for the children and the travelling parent; and
(iii)Confirmation of travel insurance and overseas health insurance for the travelling parent and the children.
(d)In circumstances where the request is made by the Father, the Mother will provide to the Father the children’s passports no later than 30 days prior to the travel and the children’s passport numbers to book the travel.
(e)During the trip, the travelling parent will arrange for the children to telephone/Skype/Video conference the other parent on at least two occasions each week or at any other reasonable time;
(f)The parent travelling with the children will ensure the children are immunised appropriately for the country where the children will be travelling and both parties will consult each other in relation to the children being immunised prior to the children travelling out of the country.
26.That the parties will do all acts and things and sign all documents necessary to make application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005) to enable the children to be issued with an Australian travel document.
27.That pursuant to s 11(1)(a) of the Australian Passports Act 2005, the parties consent to the children having or being issued with an Australian travel document.
28.That any Australian travel document be:
(a)held by the Mother when the children are not travelling;
(b)be provided to the Father upon compliance with Order 25 above.
29.That in the event of a dispute between the parents about the implementation or enforcement or negotiation of these orders or any other matter relating to the child’s welfare, the parents will do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney General or the parents will participate in family dispute resolution with a person authorised under s 10G of the Family Law Act 1975.
30.That before either parent makes an application to the Court for a variation of these Orders to take account the changing needs or circumstances of the children or of the parents, the parents must first do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney General or the parents shall participate in family dispute resolution with a person authorised under s 10G of the Family Law Act 1975.
31.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
32.The matter is listed for a three day final hearing of the property matter commencing 18 January 2023.
the court notes that:
A.Orders 1 – 5, 11 and 19 – 31 are made by consent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowen & Bowen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
These are parenting proceedings in which each parent seeks orders about X born in 2009 (“X”), Y born in 2010 (“Y”) and Z born in 2013 (“Z”) (“the children”).
Ms Bowen (“the mother”) and Mr Bowen (“the father”) (“the parents”) commenced residing together in early 2003 and separated on 11 May 2018.
After separation the parenting arrangements were ad hoc. The parties reached agreement about a parenting plan on 18 December 2018. That parenting plan provided for the children to live with their mother and spend time with their father from after school Friday to before school Tuesday in alternate weeks and Monday after school until 7.30 pm on the alternate Monday. Thereafter, following events discussed below, time was suspended, and then supervised, before returning to a regime of unsupervised alternate weekend time.
On 3 November 2021 the parents entered into final consent orders providing that there was equal shared parental responsibility. On the same day interim orders were made by a Senior Judicial Registrar providing that the children live with the mother and spend time with the father. At present, the time that the children spend with the father is from Friday to Sunday each alternate week and time during the school holidays.
The parents endeavoured to resolve the outstanding parenting issues by consent and have provided proposed terms of consent orders. Those consent orders do not deal with:
(a)The time the children are to spend with the father during school terms;
(b)The time the children are to spend with the father during school holidays;
(c)The time the children spend with each parent for special occasions;
(d)The circumstances of changeover as between the parents;
(e)The method of communication as between the parents;
(f)The method of communication as between the children and the parents; and
(g)The terms of any injunction.
The Federal Circuit and Family Court of Australia (Division 1) (“the Court”) has been asked to determine the dispute as between the parties. Some of the issues appear to be justiciable and some of the issues appear to fall into a category where there is no evidence to support that one proposal or the other is necessarily in the best interests of the children. Having heard the evidence of the parties and read the evidence of the expert, the following findings are relevant to determination of what overall suite of parenting orders would be in the best interests of the children:
(a)Is face to face changeover appropriate in this case?
(b)What is the nature of the father’s availability during the time he seeks to have the children in his care?
(c)What has been the impact of the conflict between the parents on their capacity to implement orders?
Dr L (“the single expert”) prepared a report dated 23 February 2021. The parties indicated that the single expert was not required for cross-examination.
Background
Even though the parties have agreed on some issues and the father no longer seeks an equal shared care arrangement, the contested and uncontested background facts in this matter inform the difficult dynamic between the children’s parents.
In the mother’s evidence she indicates that the father experienced suicidal ideation in 2015.
The father indicated to the single expert that he hired a private investigator in 2016 to follow the mother for a period of two years.
In late 2017 the father was suspended from driving for six months due to a conviction for driving with an amount in excess of the prescribed blood alcohol content.
In early 2018 the mother says the father and X had a verbal argument in the kitchen in her presence and the father physically stood in the way of X exiting the kitchen telling him to “grow up” and “toughen up”. When the mother asked X what had happened, the mother says X told her he could not get down from the trailer and his dad had called him a girl for not being able to get down.
The mother says that their next door neighbour, Ms K (who later became the father’s partner), laughed at X mocking him.
In early 2018 the mother says the father entered the parties’ bedroom late at night and became verbally abusive to her, asking for her phone and telling her he wanted to “hack” into it. The mother says the father took out his phone using the torch setting to follow her around the house shining it on her.
In mid-2018 the mother says she discovered text messages on the father’s iPad between the father and Ms K and confronted him about the two of them being in a relationship.
The husband gave an account of this to the single expert in which he told the single expert he had a dissociative episode where he could not remember sleeping with Ms K. Dr L expressed reluctance to speculate about this but did indicate that these events are less likely to be attributable to a dissociative episode and more likely to be consistent with the father not wanting to recall the event.
In mid-2018 the father texted the mother asking to reconcile and when he did not receive the desired reply, transferred the balance of their joint bank account into an account in his own name, leaving her without funds on the mother’s evidence. The father did not join issue on this topic and the mother was not cross-examined about it.
On 13 May 2018 the parties agree they separated on a final basis.
The father says he experienced suicidal ideation at that time.
Immediately following separation the children spent time with the father, pursuant to an informal agreement between the parties, approximately twice per week.
Shortly after the parties separated the father commenced cohabitation with Ms K and her daughter M. It was not in dispute that when the father’s time with the children fell during a period where he was away for work, Ms K was responsible for the care of the children and her own daughter.
In late 2018 there was an occasion on which the child of Ms K, M, was distressed and the father put her in the shower fully clothed. The children were witness to, and told their mother about, this incident.
In early 2019 the father was charged with common assault of M’s father in the presence of M. That charge was dismissed. An Apprehended Domestic Violence Order (“ADVO”) was put in place.
In late 2019 there was an incident involving the father, his partner and her daughter. The next day the father participated in an Electronic Record of Interview and was, subsequent on that interview, charged with multiple offences.
In late 2019 the lawyers acting for the mother sent a letter to the father indicating her intention to suspend time between the children and the father until they were provided with details in respect of an ADVO which had been taken out for the protection of the Ms K and her daughter.
In late 2019 the father attended the children’s sports games and the mother was concerned about his attendance and raised an issue about it in the presence of Y (and potentially within sight of the other children). The parents do not agree as to what occurred on that occasion but it certainly involved Y squarely in the incident and the evidence of both parents suggests the mother raised the question of the father’s recent criminal charges in the presence of Y.
In early 2021 the father was convicted and sentenced in respect of one set of charges. He was found not guilty in respect of the other charges.
On 15 July 2021 a Senior Registrar heard the matter on an interim basis and made orders for unsupervised time between the children and the father.
During the interview with the single expert the father indicated that he had a new partner, Ms S (“Ms S”), who has her own children and intended to commence cohabitation with her.
In late 2021 an order was made providing for the parties to engage in non-reportable family therapy.
The law
Even though the parties have narrowed the scope of their dispute it still falls to be considered by reference to the principles outlined in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The objects and principles which are to be applied when determining a parenting matter are set out at s 60B of the Act. At all times when making a parenting order the Court is required to regard the best interests of the subject children as the paramount consideration: s 60CA of the Act.
If an order for equal shared parental responsibility is made, the Court is required to consider whether or not an equal time arrangement or a substantial and significant time arrangement would be in the best interests of the subject children.
In determining which orders will be in the children’s best interests, regard must be had to the relevant matters set out in s 60CC of the Act.
Consideration
I am concerned that the issues which remain in dispute are not easily addressed by court orders since they arise predominantly out of the inability of the parents to cooperate and communicate. A court order cannot remedy that obstacle. Accordingly, I have as a guiding principle, when making these orders, the necessity that the orders be clear and unequivocal and easily implemented.
I am particularly concerned about this aspect in the context that, on 21 November 2021, an order was made for the parties to attend family therapy and about nine months later this has not occurred.
This case also involved allegations of family violence. In that regard I note that the following matters were not seriously in contest:
(a)The father was convicted of two domestic violence related offences in 2021 – these relate to Ms K (not the mother);
(b)There was an ADVO in place for the protection of Mr N, whose surname was not in evidence, the former partner of Ms K arising from an altercation between him and the father, which occurred in the presence of the child M;
(c)The father’s friend Mr O texted the mother in early 2022 and stated that the father had, in the period leading up to mid-2020, said to him a couple of times “that he understand [sic] why men kill their ex-wife”; and
(d)The father sent the mother a message “You can go see your parents once we have agreed on an amicable decision”. There is no way to read that message other than as an attempt by the father to prevent the mother from seeing her elderly parents in an effort to bring about a settlement of the parties’ family law dispute.
However, as noted above, against that background the parties asked the Court to make a consent order for equal shared parental responsibility on a final basis which order has now been in place for about nine months. Neither party seeks to disturb that order. Further, each party asks the Court to make orders that the children spend time with the father unsupervised during term time and for extended periods during school holidays.
It is necessary then to consider, through the lens of s 60CC(3)(j) of the Act, and related sections, and s 65DAA(5)(b) of the Act, how the evidence in respect of family violence and communication difficulties impacts on the orders to be made on a final basis.
The expert evidence records the children’s experience of the later stages of their parents’ relationship as involving verbal arguments between the parents. The evidence of both the mother and father chronicles arguments at changeover, at sport events and on speaker phone in the hearing of the children. If the parties (including the Independent Children’s Lawyer (“the ICL”)) had not agreed to equal shared parental responsibility, I am not confident I would have made the order. It was open to me to decline to make the order. In determining that I would make that order I took into account:
(a)The consent of all parties including the ICL;
(b)The possibility that an order for sole parental responsibility (given the extent of time) would not, without more, prevent conflict between the parents and in fact could exacerbate conflict given the history recorded in these reasons as the father may feel excluded if there were an order for sole parental responsibility; and
(c)The fact that decisions such as education and religion were not seriously in issue in this case and no child is currently experiencing any serious illness.
The mother says that she desires a parallel parenting arrangement with the father. Such an arrangement recognises that cooperation and communication are unlikely to be achieved and interactions between the parents may expose the children to conflict. Having read and heard all the evidence in this case I accept that it is most unlikely that the cooperation and communication between the parents is sufficient to allow them to effectively co-parent. I would have had more hope in this regard if the recommendations of the single expert had been implemented and the orders of the Court facilitating intervention had been complied with.
Children’s relationship with parents
It was not in issue that the children have a close relationship with their mother.
The mother’s counsel submitted the children have a good relationship with the father, which they have not always had. The mother is concerned that a change to the arrangements may impact the relationship.
The father sets out in his affidavit at [148] an excerpt from a Child Inclusive Memorandum dated 6 February 2020:
Currently all the children seem to have positive relationships with each parent, and the parents need to ensure that they are able to act in a manner so as they can preserve and build on these positive relationships. It is not appropriate for children to be involved in a parent’s emotional struggles, rather the parent needs to be emotionally available to support the children adjust to the changes.
I formed the view that the children’s relationships, in the medium to long term, with each parent, will be assisted by orders which protect the children from parental conflict.
Children’s age, stage of development and views
When the single expert met with the children he formed the view that they were “anxious, avoidant, peacekeeping children”. I must be concerned that the orders do not contribute to their anxiety. He also observed, in early 2021, that they would “continue to grow in both themselves and their self-confidence”. One of the most significant matters, in my view, are the ages of the children. When the parties separated the children were nine, eight and five. At the time of the hearing before me they were 13, almost 12 and nine. X is in year eight, Y is in year six and Z is in year four.
Unfortunately, I did not have good evidence about the children’s current views as the single expert report was prepared following interviews in March 2021 – almost 18 months ago. The mother in her affidavit material did say that, notwithstanding what, on any view, has been ongoing acrimony, X has not been upset in the same manner he was in 2019 and if he were to experience that level of distress she would ensure that he obtained support and assistance.
To the extent that I did have information about the children’s views (albeit somewhat dated) the orders I propose to make are not significantly at odds with those expressed views.
Term time arrangements
The most significant issue is about the time the children are to spend in the household of each parent. The mother seeks that the children live with her and spend two nights a fortnight with the father. The father seeks that the children live with the mother and spend five nights a fortnight with him.
The mother’s position is premised on the fact that the children cannot cope with longer periods in the father’s care, her concern that the father may not be available, her concern that the father does not maintain the children’s routine and her concern that the father does not return possessions.
The mother says that the children have experienced a situation where they are with the father for the whole of the weekend and it did not work for them. The parties’ parenting plan from 18 December 2018 provided for the children to spend time with the father from after school Friday to before school Tuesday and on a Monday afternoon in the off week. Both parties agree the arrangement did not work. The father agrees that X was stressed and anxious about being required to organise himself and his siblings to be ready for school from the father’s home. The children remained in this pattern of care until the mother suspended the father’s overnight time in September 2019. Accordingly, this pattern was in place for about three school terms when the children were aged at the time of the agreement: X (10), Y (eight) and Z (five).
On 5 November 2019 the father’s time was subject to a consent order that provided time was supervised day only and alternate weekend time on both days of the weekend.
At the time of trial the children’s time had been in accordance with the orders of a Senior Registrar made 15 July 2021 and varied by consent on 3 November 2021. Those orders had a graduated regime but provided from about mid October 2021 time between the children and the father from 9.00 am on Saturday to 5.00 pm on Sunday. Then in February 2022 the children’s time with their father graduated to commence at 4.00 pm on Fridays and conclude at 7.00 pm on Sundays.
The mother says the existing arrangement is working well. In her evidence the mother said the current regime which has time commencing on Friday afternoon and concluding on Sunday evening is providing the children with “quality” time with their father. In cross-examination she said words to the effect “the time the children are having with their father at the moment is really quality time they are happy with”.
In her view, extension of that time runs the risk of diminishing the quality of the children’s experience.
The father, in his evidence, faintly acknowledged he may have failed in his obligations to ensure the children’s term-time routine when he had longer periods of time with them previously. The father’s failure in this regard had exposed the children, and in particular X, to anxiety. He said he understood that re-partnering so quickly had a negative impact on the children and that he had taken on board the difficulties the children experienced when their possessions did not move seamlessly from household to household.
There was a mantra type quality to the father’s acknowledgment of error. He was asked to reflect on his actions and counsel for the mother asked him about whether he took responsibility for his actions. For example, he was asked whether he regretted engaging the private investigator and he replied: “No, it taught me a lot about our relationship”. He was asked whether he accepted that he had been the perpetrator of family violence to which he responded “No those charges were dropped”. It is correct that the father was not convicted of one set of charges but he was convicted of the other. Glibly, when asked, having read the report of the single expert, whether he accepted that he had engaged in family violence he responded “I get family violence every time I read an email [from the mother]”. When he was asked “Can you understand why [the mother] may not want you coming to her [workplace]?” he responded “No”.
The father could not see that he may have caused the mother professional embarrassment by bringing the parties’ dispute to her place of work. When asked to reflect on the impact on her, his answer was “That is her problem, not mine”.
Having heard the father’s evidence I conclude that he has, at best, partial insight to past difficulties. I concur with the observation of the single expert that the father’s introspection was superficial. I note however, that he was able to instruct his lawyers to abandon his week about application. Further he was able to agree to most of the orders proposed by the ICL notwithstanding they represented less time with the children than he was seeking at the commencement of the trial. The father has attended appointments with Mr P (“Mr P”), a psychologist. Mr P’s notes had been subpoenaed but there was no report from him before the Court.
As against that however, there were several court orders designed to assist the parties (and ultimately the children) such as orders for family therapy and the completion of parenting courses with which the father failed to comply. In a similar vein, the father acknowledged the existence of an injunction requiring him to keep a distance of 15 metres from the mother (Order 14 of 15 July 2021) but accepted that he had also been in breach of that order if he felt that it was necessary or desirable (for example to hear the sports coach address the children at the end of a game).
The father also appeared motivated to seek the extension of his time to demonstrate to the children (and perhaps the world at large) that he was a capable and involved parent. He said in his evidence that such an extension would give them the opportunity “to experience the growth I’ve had”. Ultimately, the children will benefit from extended involvement of their father if he is able to demonstrate that he can keep their routine. I would not make an order extending the father’s time in order to give him an opportunity to atone for his past mistakes unless I could be confident that the mistakes would not be significantly repeated.
The father assured the Court that if he had the children in his care he would not accept work which interfered with his parenting obligations. He did not file any evidence from his employer. He said his job is flexible as he is employed on a casual basis such that he can reject work which is offered to him and indeed suggested that in preparation for this hearing he had only worked three days in the past month. He said he would not delegate the care of the children to a third party (although acknowledged he may need to rely on his sister during holidays).
It is unrealistic and probably untenable and or unsustainable for the father to restrict his work in this manner. Since both parents have a duty to financially support the children it is probably also unwise from that perspective.
The mother’s submissions highlighted the father’s failure to take up the recommendation of the single expert to undertake a “Tuning into Teens” course (Order 20 of 15 July 2021 orders), the father’s failure to engage with family therapy (Order 6 of the 3 November 2021 consent orders) and his failure to participate in a men’s behaviour change course, “Taking Responsibility” (Order 21 of 15 July 2021 orders). I could make fresh orders requiring attendance but see little point in remaking an order which has not been complied with in the past. Consistent with the opinion of the single expert I see value in the courses if undertaken with the intention of implementing the lessons to the benefit of the children.
The father says he is currently living with his sister. His sister was not on affidavit. The father told the single expert he intends on residing with his partner, Ms S, in the future. The lack of any specific evidence about the father’s future plans with his partner made it difficult to understand the logistics involved in the father’s proposal and, given the history in this matter, difficult to know whether the Court could have confidence that the practical aspects of an extended period of time between the children and the father would operate in the best interests of the children.
The father’s failure to comply with various past orders and recommendations coupled with his lack of transparency about future plans means that any extension of his term time with the children should be modest.
The father attends sport training on Wednesdays. The mother accepts that recently his attendance has been regular. The mother says she is supportive of the father attending to support the children. I have formed the view that making this time (training) part of the time regime as between the children is likely to create a further opportunity for conflict between the parents, when arrangements change or this is no longer the chosen sport. I will make an order which provides that the parents are (subject to conditions) permitted to attend training and games for the children’s sports.
Balancing the desirability of the children to see and spend time with each parent to the maximum extent consistent with their best interests against the evidence which suggests a more cautious approach should be taken, I find that the children are older than they were when they last spent the extended weekend with their father and hence better able to be in charge of their own routine (with parental assistance, of course). The result is that I believe the children’s time with the father should be extended but not to the extent that he seeks. In reaching that conclusion I have taken into account my view that ideally none of the changeovers between the parents should occur face to face and a school to school arrangement will be of assistance to these children. I accept that from time to time that may mean that the children do not have an item they need. With older children it must be expected that responsibility for their belongings does not rest significantly with the parents.
School holiday arrangements
The parties were not seriously in dispute about what should occur in the short school holidays. At the conclusion of the hearing the father had come around to the view that the mother’s proposal that he have the first half of all school holidays was acceptable. Ultimately, the only issue which remained was whether the father’s time would commence at the conclusion of school or 4.00 pm and whether it would end at 10.00 am or 7.00 pm on the middle Saturday. Consistent with my conclusions about the value to the children of the father collecting them from school, I will make the order proposed by the ICL and father, namely that the children’s holiday time start at the conclusion of school on the last day of term. Since the mother proposed it end at 7.00 pm (as opposed to 10.00 am) I will make that order since I can see no disadvantage to the children.
Long School holidays
The mother is an educator – she is available to the children in a way which does not impact on her capacity to provide the children with financial support since her holidays are paid leave.
At present the children (certainly the younger two children) are too young to be left without adult supervision during school holidays. The father said (in cross-examination) that his sister would assist him. He said he is on good terms with his sister (from whom he has been estranged) but she did not give evidence in his case. The history of their relationship suggests that the current state of their relationship is not guaranteed.
The mother says the father’s proposal provides too lengthy a period for the children with their father. I did not get the impression that she was saying that the children cannot tolerate being away from her for that length of time but rather that the children would be more likely to be exposed to the father’s volatility and temper if the period of time were too extended. That said, she also acknowledged that holiday time is different from term time as there are fewer commitments and routines to maintain and the children are free to enjoy leisure activities with their father.
The ICL identified as one of the advantages of a longer period for the children in the care of the father the opportunity for the children to develop not just their relationship with their father but also with extended family. The proposal of the ICL strikes a balance between a jump to a long period almost immediately and the acknowledgment that in a year’s time the proceedings will be at an end and the children will be 15 months older than they are now.
The father said it would be difficult to have piecemeal holiday time and he preferred a block because of his work arrangements. This sits uncomfortably with evidence about the flexibility of his employer and his role as a casual employee. In any event this year his time will be in three blocks (including the two nights for Christmas) and thereafter for half the holidays. By the time the half school holiday Christmas block time commences, the youngest child will be about to start year six.
Overseas travel
I am not persuaded to make an order for additional time to facilitate overseas travel. If the parents wish to travel in the time provided to them under the orders they will be able to do so. In due course each parent will have the second half of the long holidays uninterrupted. No party indicated a specific holiday and accordingly this approach does not create an identifiable prejudice and has the advantage of being clear and easy to interpret.
Changeover
The mother sought to maintain a face to face changeover, notwithstanding the key concern raised by her in relation to changeovers from school.
The father has not attended the school since September 2019 inappropriately. Prior to that date the mother had a legitimate concern. However, given he has not attended, other than to participate in events for the children, for the last three years, on balance, I weigh the children’s interests in a changeover which is not face to face as of higher importance to them than precluding the father from attending at the gate of the school, noting he had agreed not to come onto the campus.
A secondary concern related to the vexed issue of the children’s possessions. I accept this has been a real issue. I accept that items have not been returned. If the father is to have the children from after school to before school then he must take responsibility for providing the children with any items of uniform or sporting equipment they require. He cannot insist that the mother be responsible for the provision of items. As the children enter high school they must take primary responsibility for their school and extra-curricular equipment and ensure that it travels with them. Neither parent should prevent the equipment travelling with the child. I have made the orders the parents sought about the children’s belongings.
Make-up time
The father seeks an order that the mother be required to provide “make-up time” if the children do not attend during periods of time they ought be in the father’s care pursuant to orders.
The children’s attendance to spend time with the father pursuant to orders is not optional. Accordingly, the Court expects that if there is an order for time then the parent with care of the children will facilitate that time.
If the evidence demonstrated that the parties were able to cooperate then I may be minded to include a mechanism in the orders for make-up time. However, the affidavit evidence and the oral evidence of each of the parties gave me no basis to conclude that orders for “make-up time” would be anything other than an additional cause for conflict between the parties and I decline to make such an order.
If the parties are to parent in parallel and their communication is to be limited then any changes to the orders provide an opportunity for conflict which is not in the interests of the children.
Special occasions
It is fair to say that the difference between the orders which were sought by the mother, and those sought by the father concerning special occasions, did not raise any significant issue of law. In determining which proposal was to be preferred I have concluded that the orders which I will make are those which do not (unless absolutely necessary) provide for face to face changeover and those which are least capable of being misinterpreted.
Accordingly, I have ordered that the father have the whole of the father’s day weekend each year and the mother will have the whole of the mother’s day weekend each year. That may from time to time result in one parent having two weekends in a row with the children but on balance this is preferable to a situation which requires changeover mid weekend.
I have also ordered that the children spend time with their mother and father on each of the parents’ respective birthdays either because they wake up in that parent’s household or for dinner.
The children’s birthdays should be dealt with the same way. If the child wakes up in the home of the mother on his or her birthday they will have dinner with the father and vice versa.
Orders for communication between parents and children
The father seeks liberal orders for the children to communicate with each parent by telephone or other electronic communication (including video call) via a device which he intends to provide.
In ideal circumstances there would be no basis upon which the Court would decline to make such an order. The question here is, as against the fraught relationship between the parties, do the questions of the mother’s privacy outweigh the benefit to the children?
Communication between the children and the father has been a flashpoint for conflict between the parties under the existing order. On balance, given that X is in year eight, I think it is reasonable that he be permitted to have a device which may be used by the father to communicate directly with X and his siblings. The father has said he will provide it. I accept the submission on behalf of the mother that provision of a mobile phone appears inappropriate against a backdrop of child support arrears. However, I take into account that it is not in the children’s interests that their parents be involved in the children’s direct communication with the father. Accordingly, from Term 1 next year when X is in year nine I will make orders which provide for direct communication between the children and their father via a device provided by him. I will place limits on the communication consistent with the children’s need for time in their mother’s household not to be unduly impacted by communication with the father. In the meantime I have made orders for the existing communication to continue.
How should the parents communicate?
Because the parties have agreed to an order for equal shared parental responsibility and because the children will, under all proposals, spend time in each household, it will be necessary for the parties to communicate. Face to face communication is contraindicated.
I accept that whatever method is put in place should encourage short business like exchanges. The mother asks that the exchanges be via email. The father wants to use an application designed to be used by separated parents “Our Family Wizard” (“the Application”).
In cross-examination the mother agreed she has not downloaded the Application. She resists this application because she thinks that its capacity to include, alongside the platform for communication between parents, the facility to upload the children’s schedules or share photos, will lead to disputes between the parents if she fails to undertake the required tasks.
The father says he finds the emails too lengthy and overwhelming. He points to the fact that the mother has more skill with language and writing than he does. In answer to queries from counsel for the ICL he said that he was dyslexic.
The correspondence between lawyers during the currency of the proceedings (on instructions from their clients) has focused on the real and perceived failings of the other parent. From time to time I accept that such matters must be the subject of correspondence. However, when there are final orders in place I can see little utility to the children in either parent using communication to question or criticise the other parent’s decisions in respect of the children. Parallel parenting requires an acceptance that in the other household the other parent will parent differently.
It is not useful for me to make a finding about where the blame lies for the parties’ failure to communicate effectively. As counsel for the mother observed at the hearing, the parents who met with the single expert are the same parents who presented at trial: the father failing to acknowledge his shortcomings and the mother exasperated. Most significantly, neither was able to prevent the children from being exposed to the negative interactions between them.
The method of communication must be effective if it is to operate in the best interests of the children. One of the advantages of the Application over email, according to exhibit E, is the tool “U Application” which the document explains “can help to commit to keeping your communication positive and productive”.
I accept that the more comprehensive application does create the possibility that inclusion (or otherwise) of information on the platform could cause conflict. However, the parties have agreed to an order for equal shared parental responsibility. No party is more or less responsible under that order. Each party is required to keep and share information. One party is not required to provide the other with information unless it is uniquely within their knowledge and not obtainable from the school, sporting body or other public source. On balance I am of the view that a specialised application which allows for concise messaging is to be preferred and will make that order. I decline to make an order requiring the parties to input the scheduling information because I remain concerned that any omission will be an opportunity for conflict. That does not mean they should not use that function but they should do so without obligation of court order.
Having made the order that the father sought, I expect him to comply with its terms and use this method exclusively for communication. I will order that this be the sole method of communication, except in an emergency.
Injunction
I have struggled to reconcile the evidence in this case with the position taken by the mother in the litigation. There is an existing order that says:
Notwithstanding Order 11 relating to attendance at the children’s school functions, sports carnivals and other school events and extra-curricular events, the Mother and Father shall not approach each other at such events and shall maintain a distance of not less than fifteen (15) metres from the other parent at all times and not do any such act or thing or cause any other person, to prevent the children communicating with the other parent at such events. However, should the parent whose care the children are in directs the children to return to them, the other parent shall not do anything or cause anyone else to do so.
(Order 14 of the orders dated 15 July 2021)
The mother seeks that order be made on a final basis. Both she and the father say he has failed to comply with this order. The mother was asked to estimate what 15 metres looked like by reference to the court room. It was plain that the mother may have been interpreting the distance as somewhat shorter than it is.
The father agrees that, for example, at the children’s sport games he will come within 15 metres of the mother when he wants to hear the post-game discussion with the coach. He says the mother will remind him of the injunction during these post-game discussions. The mother does not say that the father should not attend sporting or events at the children’s school. The father very recently attended book week. In addition, the mother agreed in her evidence that the father has conducted himself appropriately when in the presence of third parties. At the conclusion of the evidence on this issue I formed the view that an injunction which includes a restraint by reference to distance in circumstances where each parent is at liberty to attend school and sport is likely to be productive of greater discord. I will make an injunction designed to ensure that the father does not engage in conduct or discussion designed to intimidate the mother.
The father was asked if he could reflect on his conduct and accept that his actions in the past may have been experienced by the mother as intimidatory. The father was either unable or unwilling to concede that his having engaged a private investigator to follow the mother over a period of two years may ground her disquiet.
Even objectively benign interaction between the parents has caused conflict, and accordingly, it is in the children’s interest that they have as little to do with one another as is feasible given the shared nature of their responsibility and time. The father should not speak with the mother at the children’s sport. This will be covered by the order that provides that the parties communicate via the Application except in an emergency.
If I was confident that the interactions between the parties would be cordial and business like then an injunction would not be necessary, but the evidence demonstrates that the father acts in a manner which causes the mother to react and the children are witness to these interactions.
The father says the 15 metre rule is not realistic. He gave examples such as attendance at events at the children’s school where both parents might be in the same room. The mother does not seek that he be prevented from attending such events.
As a consequence of these findings I will order that the mother and father not communicate other than via the Our Family Wizard Application, save in the event of an emergency. Both the mother and father will be restrained from conduct and language which is derogatory or intimidatory of the other.
I have declined to make an order that the children be returned to the mother if they become distressed while in the care of the father because neither parent supported the making of the order and I was of the view that it may create an opportunity for conflict. This would not preclude the father from doing so if he felt it was appropriate.
Similarly I am not persuaded I should make an order providing that the father give the mother notice if he will be unavailable. Each party is responsible for the children during their own period of care and if unavailable, responsible for making a child focused decision about an alternate carer.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 12 September 2022
0
0
0