BUTTERWORTH & GODFREY
[2020] FCCA 2685
•28 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUTTERWORTH & GODFREY | [2020] FCCA 2685 |
| Catchwords: FAMILY LAW – Children – primary care – previous substance abuse – parenting capacity – hostile co-parenting dynamic – choice of future school enrolment. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA |
| Cases cited: Goode & Goode (2006) FamCA 1346 |
| Applicant: | MR BUTTERWORTH |
| Respondent: | MS GODFREY |
| File Number: | ADC 4117 of 2018 |
| Judgment of: | Judge C Kelly |
| Hearing dates: | 20-22 July 2020 |
| Date of Last Submission: | 22 July 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 28 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Dillon |
| Solicitors for the Applicant: | Dixon Gallasch Pty Ltd |
| Counsel for the Respondent: | Mr B McQuade |
| Solicitors for the Respondent: | Phillips Green & Associates |
ORDERS
All previous parenting orders are discharged as and from 12 October 2020.
The parties have equal shared parental responsibility for the children X born in 2007, Y born in 2008 and Z born in 2014.
Commencing Monday 12 October 2020 the children live with each parent during school term time as follows:
(a)with the father from the conclusion of school on Friday 16 October until the conclusion of school on Thursday 22 October 2020 and each alternate week thereafter, provided that handovers take place at 3.30pm if a non-school day;
(b)with the mother from the conclusion of school on Thursday 22 October until the conclusion of school on Friday 30 October 2020 and each alternate week thereafter, provided that handovers take place at 3.30pm if a non-school day; and
(c)the children’s time in the father’s care shall resume on the first Friday in each school term.
The children spend one half of each school holiday period with each parent as agreed between the parties and in the absence of agreement:
(a)with the father for the first half of the short school holidays from the conclusion of school on the last day of term until 5.00pm on the middle Saturday of the holidays and with the mother for the remainder of the holiday period;
(b)with each parent on a week about basis during the Christmas school holidays each year as follows:
(i)with the father from the conclusion of school on the last day of term until 5.00pm on the Friday one week following and each alternate week thereafter with handovers at 5.00pm; and
(ii)with the mother each intervening week from 5.00pm Friday until 5.00pm on the Friday one week following.
The father ensure that he is substantially available to personally care for and supervise the children while they are in his care.
The parties communicate with each other in writing, either by SMS text message or through an agreed co-parenting App.
Each party ensure that all communication between them is polite and respectful at all times.
NOTING ORDERS 8 – 17 ARE MADE BY CONSENT:
Special occasions
That the children spend time with each party on special occasions as follows unless otherwise agreed in writing:
(a)with the mother on Mother’s Day from 9.00am to 5.00pm;
(b)with the father on Father’s Day from 9.00am to 5.00pm;
(c)with the mother from 12.00pm Christmas Eve to 12.00pm Christmas Day in 2020 and each alternate year thereafter;
(d)with the mother from 12.00pm Christmas Day to 12.00pm Boxing Day in 2021 and each alternate year thereafter;
(e)with the father from 12.00pm Christmas Day to 12.00pm Boxing Day in 2020 and each alternate year thereafter; and
(f)with the father from 12.00pm Christmas Eve to 12.00pm Christmas Day in 2021 and each alternate year thereafter.
Handovers
All handovers that do not occur at the school occur at the B Hotel.
Injunctions
Without admission the parties are restrained from:
(a)physically disciplining the children or allowing anyone else to do so;
(b)threatening the children with physical discipline, or allowing anyone else to do so;
(c)exposing the children to adult conflict and/or family violence;
(d)denigrating the other parent in the presence of or within the hearing range of the children or allowing anyone else to do so;
(e)consuming any type of illicit substances 24 hours prior to and while the children are in their respective care;
(f)consuming alcohol to excess, 24 hours prior to and while the children are in their respective care (defined as more than three (3) standard alcoholic drinks in any 24 hour period).
Co-parenting communication
That the parties advise each other of any medical emergency in respect to the subject children within two (2) hours of arrival at any emergency treatment facility with both parties to be at liberty to attend the facility where the children are being treated.
That the parties by their own arrangement and at their own costs are at liberty to obtain from the children’s school:
(a)copies of all school progress reports;
(b)details of all school functions and events that parents are normally invited to attend; and
(c)copies of school photographs.
That both parents are at liberty to attend at the children’s school for parent teacher interviews, sports days and any other event parents are normally invited to attend.
The parties are to ensure that each parent is recognised by any school the children attend as an enrolling parent.
The parties keep each other informed of their residential address details and mobile phone numbers and any change thereto within four (4) days of such change.
That the parties by their own arrangement and at their own costs are at liberty to obtain from any medical practitioner, dentist, specialist doctor, allied health professional, counsellor or therapist attended by the children information and advice in regard to the children’s state of health, including all details of any diagnosis and prognosis.
That the parties are at liberty to release a copy of the final orders to any school attended by the children and any medical practitioner, dentist, specialist doctor, allied health professional, counsellor or therapist attended by the child.
The children’s future school enrolments
The parents do all things and sign all documents necessary to enrol X at C School commencing in the 2021 school year.
Y and Z complete the 2020 school year at D School and thereafter be enrolled at a primary school located approximately midway between the parties’ homes as may be negotiated between the parties as follows:
(a)the parties exchange details in relation to their nominated primary school/s no later than 30 October 2020 and endeavour to reach agreement by 30 November 2020;
(b)in the event the parents are unable to reach agreement then the father shall select the primary school, provided the school is located approximately midway between each party’s home address.
Commencing in 2022 Y attend C School if eligible, or alternatively at another high school located approximately midway between the parties’ homes as may be negotiated between the parties as follows:
(a)the parties exchange details in relation to their nominated high school/s for Y by 30 June 2021;
(b)each party consider all nominated schools, including information in relation to the curriculum and travel time by car or public transport from each party’s home and thereafter endeavour to reach agreement by 30 August 2021;
(c)in the event the parents are unable to reach agreement then the mother shall select Y’s high school, provided the school is located approximately midway between each party’s home address.
Z attend at a high school in which either of her sisters is already enrolled, unless otherwise agreed between the parties.
Interstate and overseas travel for the children
Each party is permitted to travel interstate with the children during their usual primary care provided that they give the non-travelling parent seven (7) days’ written notice, including the departure and return date, destination, mode of travel and a telephone number upon which the children can be contacted.
Each party is permitted to travel interstate with the children for a longer period by agreement with the other party and subject to the following conditions:
(a)the travelling parent give the other parent 28 days written notice of their proposed travel including the departure and return date, destination, mode of travel, and a telephone number upon which the children can be contacted;
(b)the other parent advise whether they consent to the proposed travel within seven (7) days, provided such consent is not unreasonably withheld; and
(c)make-up time is provided to the other parent immediately upon the children’s return or at such later dates as the other parent may nominate.
Each party is permitted to travel overseas with the children with the consent of the other party and subject to the following conditions:
(a)the travelling parent give the other parent 42 days written notice of their proposed travel including the departure and return date, destination, mode of travel, and a telephone number upon which the children can be contacted;
(b)the other parent advise whether they consent to the proposed travel within seven (7) days, provided such consent is not unreasonably withheld; and
(c)make-up time is provided to the other parent immediately upon the children’s return or at such later dates as the other parent may nominate.
Notification regarding the parents’ travel
Should either parent travel overseas or interstate that parent shall:
(a)notify the other parent of their travel arrangements at least seven (7) days prior; and
(b)in the event the travelling parent is absent for more than three nights the children shall live with the other parent during that time, provided that the parenting arrangements resume in the usual rotation upon the travelling parent’s return.
The proceedings are dismissed as finalised.
IT IS NOTED that publication of this judgment under the pseudonym Butterworth & Godfrey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4117 of 2018
| MR BUTTERWORTH |
Applicant
And
| MS GODFREY |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to parenting arrangements for the parties’ three children X, Y and Z. Their parents are unable to reach agreement about the children’s long term living arrangements and, accordingly, it falls to the Court to determine these issues.
Background
The parties met in 2003 and began living together in 2008. They lived with the paternal grandmother for a period of time before moving into their own independent accommodation. X was born in 2007, Y was born in 2008 and the youngest child Z was born in 2014.
The father worked full time during the relationship. Both parties contributed to the children’s day to day care but the mother was the primary caregiver for the children. The parties acknowledge that they experienced significant difficulties during their relationship. They accuse each other of using illegal substances or alcohol to excess and further allege that the other party behaved abusively and aggressively towards them. These matters will be discussed further in these Reasons.
The parties’ relationship deteriorated and in February 2016 they commenced living separately within the family home. In September 2016 the mother and the children moved into rental premises at E Street, Suburb F, where they continued living until September 2018. The father remained living in the former matrimonial home and continues to do so.
The parties’ conflict and hostility continued after separation. Communication between the parents was clearly difficult, but they were able to negotiate parenting arrangements for their three children. The parties agree that X, Y and Z were eventually spending time in the father’s care on alternate weekends from 6.00pm Friday until the commencement of school on Monday morning and overnight each Wednesday. The mother says this arrangement came into effect following mediation in November 2017 whereas the father said this arrangement came into place earlier.
The parties subsequently changed to a week about parenting regime. The mother says the parties negotiated week about care during the December 2017/January 2018 school holidays and the father then insisted upon continuing the arrangements. The mother says she was unhappy with this, but felt too intimidated to challenge the father.[1] The father claims that this arrangement commenced by agreement in October 2017,[2] but the mother’s contemporaneous text messages confirm her account of the timing.[3]
[1] Mother’s Trial Affidavit, filed 22 June 2020, para.134
[2] Father’s trial Affidavit filed 22 June 2020, para.98
[3] Father’s Exhibit Book, Exhibit 9, page 38, Mother’s text messages to father sent 31 Jan 2018
X, Y and Z continued living week about with each parent until September 2018, when the mother says Z disclosed that she had been sexually assaulted by the paternal grandmother. This disclosure led to an investigation being undertaken by SA Police and the Child Protection Services at G Medical Centre.
The mother withheld the children from the father during this time on advice received from SA Police, pending completion of the investigation. Around the same time in September 2018 the mother’s lease at E Street was not renewed. The mother and the girls moved in temporarily with the maternal grandmother, who lived in Suburb H.
The father sought legal advice, seeking to reinstate his parenting role in the children’s lives.
These proceedings
The father filed his Initiating Application on 4 October 2018 and the mother filed her Response and supporting documents on 1 November 2018. At the first return date on 6 November 2018 it was confirmed that no child protection concerns were identified, although the Child Protection Services Report was not yet available. Following argument, the Court pronounced interim Orders as follows (inter alia):
1.That the children X, Y and Z live with the father during school term time each alternate week from the conclusion of school on Thursday until the commencement of school Monday.
2.The children live with the mother at all other times.
3.The children live with each parent during the Christmas school holidays on a week about basis.
4.Both parties were restrained from:
(a)physically disciplining the children;
(b)exposing the children to adult conflict and/or family violence;
(c)denigrating the other parent in the presence of or within the hearing of the children;
(d) consuming any type of illicit substances 24 hours prior to and while the children are in their respective care;
(e)consuming alcohol to excess 24 hours prior to and while the children are in their respective care; and
(f)removing the children from the State of South Australia without the written consent of the other parent.
The allegations of drug use remained a matter of significant concern and the parties were ordered to undertake a hair follicle drug analysis test. The father was also restrained from bringing the children into contact with the paternal grandmother. The parties were ordered to attend a Child Inclusive Conference and the proceedings were adjourned to 18 February 2019.
The parties undertook the hair follicle tests as ordered and both parties returned tests indicating a positive result for illegal substances. The mother tested positive for methamphetamines and the father tested positive for cocaine.
The parties and the children subsequently attended the Child Inclusive Conference on 7 February 2019. The family consultant recommended that a family assessment report be undertaken as soon as practicable.
The hearing on 18 February 2019 proceeded before my colleague Judge McGuire. Orders were made by consent before His Honour continuing the previous parenting Orders, in addition to orders for the children to spend one half of each school holiday period with the father and to spend time with each parent on the children’s birthdays.
The parties also consented to Orders were for the children to have telephone communication with the father each Friday and Monday and a similar regime with the mother during the children’s school holiday time with the father. A range of other parenting orders were pronounced, including an order that each party undertake three random urine analysis drug screen tests during the period of the adjournment. The mother was restrained from changing the children’s school attendance from D School.
A family report was ordered to be released by 12 July 2019 with the parties to attend a Family Dispute Resolution Conference at the Legal Services Commission on 5 August 2019. The proceedings were then listed for a 2-3 day trial on dates to be advised by the Court.
In May 2019 the mother presented a clear urine analysis drug screen test, although the timing of the drug screen test is open to challenge. The father presented a clear drug screen test on 1 August 2019.
Prior to the preparation of the family assessment report the mother moved from the maternal grandmother’s home in Suburb H to her present home at Suburb J, approximately 30 kilometres from the children’s school.
The family report was prepared by Family Consultant Ms K and was released to the parties on 30 July 2019. Ms K recommended a change in primary care for the children such that they live with the father and spend time with the mother on alternate weekends and each Wednesday overnight.
Ms K also recommended that the children have regular Skype or Facetime contact with the mother and that in the event the mother returns to live nearer to the children’s school that consideration be given to a shared care parenting arrangement.
On 21 November 2019 the father filed an interim Application for a change in primary care of the children. That Application came before the Court on 27 November 2019 at which time the mother was representing herself. She had not complied with a recent drug screen test request but consented to an order that she undertake a urine analysis drug screen test within 24 hours of the hearing. The proceedings were then adjourned to 11 February 2020 for interim argument and trial listing.
The mother presented a clean drug screen test in compliance with the order and filed her responding documents on 24 January 2020, opposing any change in primary care.
The interim hearing took place on 11 February 2020. Following submissions, the Court declined to vary the parenting arrangements pending trial but ordered that the mother ensure the children attend at school on time each day, unless unwell. The proceedings were then listed for a three-day trial to commence on 20 July 2020.
The trial
The trial commenced before me on 20 July 2020. The Applicant father relied upon the following documents:
a)his trial Affidavit filed 22 June 2020;
b)Affidavit of the paternal grandfather Mr L filed 24 June 2020;
c)Affidavit of the paternal grandmother Ms M filed 24 June 2020;
d)The Family Report dated 30 July 2019.
The Respondent mother relied upon her trial Affidavit filed 22 June 2020.
Both parties filed an Exhibits Book on 17 July 2020 and relied upon those documents.
Witnesses
The father was cross examined, as were his two supporting witnesses. I am satisfied that each of the paternal grandparents gave their evidence honestly and to the best of their recollection. The paternal grandfather acknowledged that his memory of past events and timeframes was less reliable now, given his age. Nonetheless he confirmed that the paternal grandmother had looked after the children regularly in the past, although he could not recall precisely when this occurred.
The paternal grandmother was also available for cross examination and gave her evidence in an open and straightforward manner. I am satisfied the paternal grandmother also endeavoured to answer the questions openly and honestly, although she was defensive when questioned about her discipline of the children.
The father was cross examined at length. I accept that he endeavoured to answer the questions honestly and to the best of his ability, however he was disingenuous when responding to questions surrounding his past drug use and family violence. As so often occurs in this Court, his recollection of past events was coloured by his relentlessly critical attitude towards the mother.
The mother was a cautious witness and tended to give limited answers, responding directly to the question posed to her. Significantly, the mother was open about her use of alcohol and illegal substances. She conceded that she drank alcohol to excess on a regular basis towards the end of the relationship and that this behaviour was also present earlier in the relationship. She further conceded that towards the end of the relationship she was using methamphetamine regularly, describing this as a “coping mechanism”. The mother also tended to recalled past events through a prism of consistent hostility toward the father. I take this into account in assessing the evidence of both parties.
The report writer Ms K was cross examined by both parties. She presented her evidence in a calm and professional manner and her evidence assisted the Court.
The parties’ proposals
At the time of filing his Initiating Application in October 2018, the father sought orders for week about shared care. At trial he relied upon his Amended Application filed 16 November 2019 and sought the following Orders:
1.The parties have equal shared parental responsibility for the children provided that he retain sole parental responsibility for schooling decisions, after first consulting with the mother.
2.The children X, Y and Z live with him.
3.The children spend time with the mother each alternate weekend from the conclusion of school Friday until the commencement of school Monday and overnight each Wednesday during school terms, together with week about care during the school holidays.
The mother also sought an order for equal shared parental responsibility. She proposed that X, Y and Z continue to spend time with their father each alternate week from the conclusion of school Thursday until the commencement of school Monday (ie four nights) and for one half of each school holiday period on a week about basis, provided that the father is personally available to supervise the children.
The mother proposed that the children have telephone communication with their father each Friday and Monday. The mother also sought a range of orders in relation to schooling and interstate/overseas travel.
Both parties sought a range of ancillary parenting orders and a Minute of Consent Orders was tendered in relation to special occasions, appropriate injunctive orders, handovers, health issues and communication with the children’s schools.[4]
[4] Exhibit marked “Consent Orders”, jointly tendered on 22 July 2020
Legal principles
In accordance with s.65D, the Court is empowered to make such parenting order as it thinks proper. When making a parenting order the best interests of the child are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles that govern the Court’s decisions making responsibilities. This section focuses on the importance of parents being meaningfully involved in their children’s lives, fulfilling their parenting duties and obligations and upon the need to protect children from harm.
Section 60CC sets out the factors the Court must consider in determining the child’s best interests. As discussed by the Full Court in Goode & Goode[5], s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”. Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case.
[5] Goode & Goode (2006) FamCA 1346
First, the Court should address the considerations set out in s.60CC. Section 60CC is divided into primary considerations and additional considerations. There are two primary considerations:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from the physical or psychological; harm from being subjected to, or exposed to abuse, neglect or family violence.
In the event these two considerations are in conflict, s.60CC(2A) clarifies that concerns regarding the child’s safety must prevail. Section 60CC(3) then sets out a range of additional considerations that must be taken into account.
The Court must also ensure that any parenting orders do not expose children to an unacceptable risk of family violence (s.60CG). Section 4AB defines family violence to include violent, threatening or other behaviour used to coerce or control a person, or to cause them to be fearful. Violent behaviour includes physical or sexual assault, sexually abusive behaviour, taunts, stalking, intentionally damaging a person’s property or exercising financial control over a person.
Section 61DA presumes that it is in a child’s best interests for the parents to have equal shared parental responsibility, unless the Court finds that the presumption does not apply or is rebutted. An order for equal shared parental responsibility triggers the effect of s.65DAA, which requires the Court to consider whether it is in the child’s best interests to spend equal time with each parent, or substantial and significant time which each parent. Substantial and significant time is defined to include weekday time as well as time during weekends, school holidays and on special occasions.
Section 60CC(2) primary considerations
(a) the benefit to the children of having a meaningful relationship with both parents
Both parties acknowledge that X, Y and Z have a meaningful relationship with each parent and will benefit from this relationship continuing.
(b) the need to protect the children from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence
Both parents raised concerns about the children’s safety and wellbeing in the other parent’s care. They each refer to the other party’s use of illegal substances and the mother alleges that the father and paternal grandmother have exposed the children to physical discipline or abuse. These matters will be discussed further when addressing the additional considerations, particularly s.60CC(3) (c), (f) and (i).
Allegations of family violence by the father
The mother says that her relationship with the father was very volatile and that he would constantly denigrate and abuse her, including physical abuse. The mother says this behaviour continued in the presence of the children and that there were “many other occasions” when the father physically pushed her, or put his hands around her throat when the children were present. The father denies any family violence, but I find that he has minimised his behaviour.
The mother described an episode that occurred in 2015. She says she had taken the father’s keyring to access a family safe and dispose of drugs that the father kept there. When the father realised she had the keys, he physically attacked her and pushed her towards the shower, breaking the shower door. She tried to break free but the father followed her and again knocked her to the ground in the presence of the children. A neighbour called the police but the father left before the police arrived.[6]
[6] Mother’s trial Affidavit filed 22 June 2020, paras. 31-38
The father also deposed this incident in his trial Affidavit. He says that the mother was extremely drunk and had taken various illegal substances. He says that, in a rage, the mother had taken his keys which made him very annoyed. He refutes the mother’s claim that he kept illegal drugs in his safe, and says he was concerned that the mother may damage important documents belonging to his father that were stored in the safe. The father noted that his key ring included a key to his work place which contained $7 million worth of stock and he did not want to get into trouble for the key not being in his possession.[7]
[7] Father’s trial Affidavit filed 22 June 2020, para.34
In cross examination the father conceded that X had seen him “pin the mother to the ground” during this altercation, but I note he did not mention this in his Affidavit. The father went on to say that he was sorry this happened and sorry the girls saw it, but pointed out that he did not punch the mother or hit her. This attempt to minimise his behaviour does the father no credit.
When asked if he blamed the mother for this incident, the father responded by saying that the mother refused to hand over his key ring. He said that he knew what he did was wrong but that the mother also needed to reflect on her behaviour. The father then went on to say that the mother may have used his keys to steal stock from his work site.
The father’s evidence shows a concerning lack of candour. He only acknowledged his physical violence when pressed to do so during cross-examination, and showed little remorse. The mother’s account of this altercation was confirmed by X and Y, which adds weight to the mother’s evidence.
The reason why the parents were struggling over the keys is ultimately irrelevant. The most concerning aspect of this incident is that the father assaulted the mother in the presence of the children and that he did not acknowledge his behaviour, until pressed to do so.
The mother describes a further incident that took place after separation, on Australia Day 2017. The parties were both attending a barbecue. They began arguing and the mother acknowledged that she pushed the father. The mother says the father then pushed her against the back pool railing and placed his hand around her throat. She says he had one hand around her neck and the other raised in a fist as if he was going to punch her. The father’s friend Mr N apparently intervened pulled the father off and she was able to free herself.
The father’s version of this event is the exact opposite. The father says the mother flew into a rage and punched him several times in the head before Mr N dragged the mother off him. He agrees the children were present but says they were screaming “Don’t hurt Daddy”.[8]
[8] Father’s trial Affidavit, paras. 67.
The father’s friend Mr N has been mentioned numerous times in the father’s Affidavit, as a witness to the mother’s aggression or drug use. The father did not call Mr N to give evidence and I place no weight on any hearsay evidence allegedly based on Mr N’s actions or observations.
Clearly the parties’ relationship was marred by conflict. Both parties’ behaved aggressively towards each other and this behaviour is likely to have been affected by their use of drugs and alcohol. I reject the father’s claim that he has not directed physical or emotional violence towards the mother. The father was not prepared to take any responsibility for his aggressive behaviour prior to, or after separation. By contrast, the mother acknowledged that she had pushed the father on at least one occasion during an argument.[9]
[9] Mother’s trial Affidavit, paras. 123-129
I am satisfied that the father’s past behaviour has contributed to the poor co-parenting dynamic that now exists, however I conclude that the risk that the children will be exposed to ongoing family violence in either parent’s care is low.
In this matter, both parties support the children spending extensive time in the other parent’s care, notwithstanding the allegations of violence and inadequate parenting. This suggests that neither party’s concerns are at a level that would suggest the children are at significant risk of harm in the other parent’s care. Having consider all of the evidence, I agree with that position.
Section 60CC(3) additional considerations
(a) any views expressed by the children and the weight to be placed upon the children’s views
The report writer Ms K met with the children on 2 July 2019. X was 11 years old at the time of the interview. Ms K noted that X described her Dad’s place as very different from the mother’s home. X said to Ms K that “she ‘acts like the mum’” at her father’s place however her father “tells me off” for doing so. X said that she adopts this role because her father is either in bed, or doing his own thing such as when he is on his phone, or has his friends over.[10]
[10] Family Assessment Report, dated 30 July 2019, at para.70
X told Ms K that she would consider equal shared care as a possible outcome, but went onto list a range of complaints about her father’s parenting. She described a recent incident at a family wedding when the father physically disciplined Y and “dragged Y down the hallway by her hair”. X then recounted a previous incident when she recalled seeing her father “pin her mother down on the floor to get the safe key”. X told Ms K that “she feels safe with her father”, but went onto say that “some of those incidents could happen again”.[11]
[11] Ibid
X said she feels safe at her mother’s house and did not raise any concerns about life in her mother’s care.
Ms K then interviewed Y, who also focused on the recent incident at the wedding. Y said that the father chastised her for misbehaving, slapped her across the face and took her outside. As with her older sister, Y drew a link to the father’s earlier behaviour towards her mother, and described an incident where her mother was on the ground, her father on top of her and the she and X “tried to get dad off mum”.[12]
[12] Ibid, para. 72
Y also described another incident when she recalled her father had pinned her mother against a pool fence. Ms K then reported as follows:
“Y stated that she is not really scared of her father, but she said she does not really like staying at his home. Y said that when she is there, most of the time her father ignores her, and that her other two sisters ‘are his favourites’. Y said that she had been blamed for a lot of things, and some of the time ‘its stuff I don’t do’ ”.[13]
[13] Ibid
Y went on to describe being hit by her grandmother with a ruler and a wooden spoon and was quite adamant that she did not want to see the paternal grandmother. This was in contrast to the warm relationship she described with her paternal grandfather.[14]
[14] Ibid, para. 73
Y told Ms K that “she does not want to spend more time with the father as ‘he treats me unfairly’”, however Y then said her ideal time with the father would be Wednesdays and every second weekend. This equates to five nights per fortnight, representing an increase in the present parenting regime where the children presently spend four nights in their father’s care on alternate weekends.[15]
[15] Ibid
Given that X and Y both proposed additional time in their father’s care, Ms K was concerned that the children may have been influenced by the mother and that she was encouraging them to make negative comments about their father and paternal grandmother.[16]
[16] Ibid, para.97
Ms K’s concerns are legitimate, but it is important to remember the children’s criticisms of the father’s care have some basis in fact. The father acknowledged there was an incident when he grabbed the mother physically and pinned her to the ground in a scuffle over a set of keys. The father also acknowledged that he slapped Y following her misbehaviour at a recent family wedding. Equally, the paternal grandmother conceded in cross examination that she may have “tapped” the children with a wooden spoon to “bring them into line”.
Ms K spoke briefly with Z, who was critical about her Uncle Mr O (the father’s brother) and her paternal grandmother. Little weight can be placed on Z’s views, however, as she was only five years old at the time of interview.
(b) the children’s relationships with each parent and significant others
The observed interaction between the children and their mother raised a number of concerns for Ms K. She noted as follows:
81.There did not appear to be significant interest by the mother in the children, individually or collectively, and the mother did not enquire about the children’s activities either in the room or away from the room. The role the mother took appeared to be one of director rather than facilitator, and she did not demonstrate that she was able to guide the children to play constructively, as several episodes of bickering ensued. The mother suggested that it was just a game, however the role she took suggested it was serious, and there appeared no room for deviation.
There appeared to be the development of a hierarchy between the children that the mother did not disperse, and resulted in Z separating herself from the others, and not assisted by the mother to return to the group. The mother’s response to Z’s distress in this instance appeared inappropriate. Rather than explaining the rules to her, the mother at first appeared to mock her, and then suggested Z’s response of being upset, was inappropriate.
82.The atmosphere in the room appeared rigid and lacking in warmth, with the mother appearing to focus attention on X and Z, albeit not always of an affirming or supportive nature.[17]
[17] Family Assessment Report, paras 81,82
Ms K’s assessment of the father’s interaction with the children was positive overall, but there were some concerning observations, nonetheless. She noted that the father and X supported each other in their criticism of Y, which acted to reinforce Y’s view that she receives the blame for everything.
Ms K noted that the father did not direct any attention towards Z until she approached him and at a later point, noted that the father “was struggling to maintain focus, and appeared bored” before re‑engaging with the children. Ms K also drew attention to the father’s lack of engagement with Z but noted that the atmosphere in the room appeared positive overall.[18]
[18] Ibid, para.87
Her conclusions regarding the children’s interaction with the mother were more critical, but the Court should be cautious about concluding that the mother’s interaction with the children on this occasion is indicative of their relationship generally. I had the opportunity to observe the mother giving evidence. It was clear from her demeanour that she was uncomfortable being scrutinised in the Court process and no doubt brought this same attitude to her session with Ms K. Some parties find the process of observed interaction demeaning and artificial, which may also affect the manner in which they conduct themselves.
The mother should consider Ms K’s feedback and reflect upon techniques she could utilise to better manage conflict between the children. The mother has since completed the Kids-Are-First post separation parenting programme and the Circle of Security parenting programme, as has the father. This demonstrates that both parties are prepared to develop and improve their parenting skills.
Based upon Ms K’s report, I conclude that the children have an established relationship with each of their parents, notwithstanding the quality of both parties’ parental engagement could be developed and improved.
The children’s relationship with other family members
The mother alleges that the paternal grandmother behaved in a sexually inappropriate manner towards Z in 2018. The allegation was investigated by Child Protection Services in late 2018 and that agency did not make any critical findings about the paternal grandmother.
The mother acknowledged that no findings were made, but says the girls are unsafe in the paternal grandmother’s care, arguing that she has a long history of subjecting the children to emotional abuse and excessive physical discipline. In the course of their interview with Ms K, both X and Y were resistant to spending time in their paternal grandmother’s care.
The children’s complaints about physical discipline by the paternal grandmother have some foundation, as mentioned previously. In cross-examination the paternal grandmother conceded that she may have “given the children a bit of a tap” with a wooden spoon to try and “bring them into line”, but said that she never left any marks. While the paternal grandmother may have seen reference to the wooden spoon “as a bit of a joke”, as she described in cross examination, I am satisfied that the children experienced it differently.
The children are likely to be aware of their mother’s animosity towards the paternal grandmother, but the paternal grandmother’s own behaviour has also influenced their attitude towards her. Ms K recommended that the father not leave the children alone in the paternal grandmother’s care, but I consider this is too restrictive. The father and his mother both accepted that an injunction against physical abuse or physical discipline of the children was appropriate and I am satisfied that the paternal grandmother will comply with this order in the future.
The mother is also concerned about the children being brought into contact with their paternal uncle, Mr O. She says an incident occurred in 2015 when the children may have been given alcohol by Mr O and that she and the father agreed not to leave the children in Mr O’s care after this occurred.
I am not satisfied the evidence in this regard is sufficient to make orders restricting all contact between the children and their Uncle Mr O, nor has the mother sought formal orders in her amended Response. The father gave evidence that he does not leave the children alone with his brother, to prevent any false accusations being made and I accept this is likely to continue in the future.
The children report a positive relationship with their paternal grandfather.
The children have lived with their maternal grandmother from time to time and have an established relationship with her, which will no doubt continue.
I am confident both parties will support the children’s relationship with extended family members. It is not necessary to put in place any injunctive orders in relation to the children’s time with their paternal grandmother or uncle, save from a general order that the father ensure that the children are not exposed to physical discipline.
(c) the extent to which each parent has taken the opportunity to participate in deciding major long term issues about the children;
(f) each party’s parental capacity; and
each party’s attitude to the children and to the responsibilities of parenthood
It is useful to discuss these considerations together as they are interrelated. Both parents raise a number of criticisms regarding the other party’s parenting capacity, but nonetheless support the children continuing to spend substantial and significant time in the other parent’s care.
As is often the case before this Court, the parties’ complaints about each other are often overstated or historical and do not necessarily require the Court’s specific consideration. I will address those aspects of each party’s concerns that are relevant to my assessment of the children’s best interests.
Consumption of illegal drugs and alcohol
The Court strongly condemns any use of illicit drugs. Not only is such behaviour illegal, it can have a seriously detrimental impact upon a party’s parenting capacity. Both parties undertook hair follicle drug screen testing in late 2018 and both parties returned positive results, an outcome was particularly concerning.
I am satisfied that both parties were regularly using illegal substances during the relationship. I conclude that the mother drank alcohol to excess during the relationship, but I consider that the father and the paternal grandparents have overstated the impact of the mother’s alcohol abuse within the family.
The mother’s use of illegal drugs and alcohol
The mother’s hair follicle test on 27 November 2018 returned a positive result for methamphetamine at 11.3 ngs/10mg. This was interpreted by the testing agency as consistent with occasional use of methamphetamine.
The mother addressed her use of illegal substances and alcohol directly in her trial Affidavit.[19] She says that she and the father used illegal substances together during the relationship, including amphetamines. She says their drug use generally occurred in a social context, or when out clubbing. The mother gave evidence that her use of methamphetamine increased leading up to separation, and that she used methamphetamine and alcohol as “coping mechanisms”, in response to the father’s aggressive behaviour.
[19] Mother’s trial Affidavit filed 22 June 2020 at paras.47-69
When asked if she was using methamphetamine every day at this time, the mother initially agreed, but in response to further questioning then clarified that she and the father were generally using methamphetamine from Thursdays through to Sunday, because that was when the father would purchase their weekly supply. I accept this evidence is a more accurate description of the pattern of methamphetamine use within the household leading up to separation.
The mother was equally open about her drug use after separation. She gave evidence that she has continued to use methamphetamine occasionally and conceded that she last used at a friend’s home around the time of her birthday. When asked if her use of methamphetamine would affect her parenting, the mother responded that she did not use when the children were in her care but acknowledged that if she did so, it would indeed affect her parenting.
I accept the mother’s evidence regarding her use of illegal drugs. The mother has consistently acknowledged her use of methamphetamine, even though this evidence was not to her advantage. I conclude that the mother is still using illegal substances occasionally, but not when the children are in her care.
The mother acknowledged in her Affidavit that she was also drinking excessive alcohol prior to separation. She conceded that her alcohol abuse may have affected her parenting but struggled to take full responsibility in that regard. The mother said that she was drinking one to two bottles of wine per night prior to separation but added that the children were always looked after by her – fed, bathed, in bed and homework done on time. It was only in response to a further question from the Bench that the mother admitted her excessive alcohol use would have undermined her emotional availability for the children. I conclude that the mother’s capacity to respond calmly and effectively to the children’s misbehaviour would also have been compromised at that time.
Regarding her current alcohol use, the mother said “I have cut down my alcohol consumption substantially and I consume a maximum of three standard drinks per day, and on some days, I do not drink at all.”[20] In cross examination, the mother further stated that she would have a glass or two of wine most nights, but not necessarily every night. She went on to acknowledge that she may drink more on those evenings when the children are not in her care. Again, the mother has been open to the Court about this issue, even when her evidence may not be to her advantage.
[20] Mother’s trial Affidavit, para.69
The father’s trial Affidavit devoted over twenty paragraphs to his concerns regarding the mother’s drug use,[21] describing a partner who was a chronic alcoholic and who regularly abused prescription medication and illegal substances. The father and the paternal grandmother go so far as to suggest that Y’s behavioural problems may be related to a diagnosis of Foetal Alcohol Syndrome Disorder, but there is no evidence to support this claim.
[21] Ibid, paras.20, 23-38
The father describes ongoing concerns regarding the mother’s physical violence, verbal abuse and mental health, all related to her drug use and alcohol abuse. His account of the mother’s behaviour is so disturbing it is difficult to understand why he allowed the children to remain in the mother’s care at separation. It is equally difficult to understand how he considered the children were safe in her care over the subsequent two years.[22] This inconsistency undermines the weight to be placed upon his evidence.
[22] Ibid, para.36
Random drug screen test request on 9 May 2019
The father requested that the mother undertake a random drug screen test on 9 May 2019. The mother initially gave evidence that she did not read the email from her lawyer until a few days later and therefore did not present a sample for testing until 15 May 2019. The mother’s evidence in this regard was clearly wrong.
During cross examination the mother was shown an email exchange with her solicitor which confirmed that the mother received the email request on 10 May 2019. The mother replied to Ms Green by email the same day, indicating that she could not attend for the drug screen test the next day, as she had other appointments.[23] The mother conceded that the email exchange was accurate but rejected the suggestion that she had delayed providing a urine sample because she wanted to avoid a positive result.
[23] Exhibit F1, tendered 22 July 2020
I am not satisfied by the mother’s evidence on this point. It is possible the mother was worried that a urinalysis test may have shown a positive result, given her acknowledged occasional use of methamphetamine. The Court must weigh this evidence against the other evidence in relation to substance abuse issues.
I conclude that the mother was using methamphetamine and drinking alcohol to excess prior to separation. I further conclude that she used drugs and alcohol as a maladaptive coping mechanism as the parties’ relationship disintegrated. I am satisfied that the mother has moderated her consumption of illegal drugs and her alcohol use since the separation and do not consider this is a substantially prejudicial factor in assessing the mother’s current parenting capacity.
The father’s use of illegal drugs and alcohol
The father’s trial Affidavit addressed his own drug use in three brief paragraphs. He deposed to using illegal drugs on a couple of occasions as a young man but did not like the effect and stopped using such drugs many years before he met the mother. The father then goes on to say that he tried some cocaine at a party in late 2018, which he immediately regretted. [24] This implies that the father did not use illegal substances for many years, until this “one-off” incident, which was detected in the Court-ordered hair follicle test.
[24] Father’s trial Affidavit filed 22 June 2020, paras 16-18
In contrast to his trial Affidavit, the father conceded during cross examination that he and the mother both used methamphetamine in the years leading up to separation. The father deliberately minimised his use of illegal substances in his trial Affidavit. The father asks the Court to accept that his positive test for cocaine in December 2018 arose from a single episode of drug use but I am not satisfied by the father’s evidence in that regard.
I conclude that both parties have used illegal substances since separation. To the father’s credit, he presented clear urinalysis tests during 2019. The mother also presented a clear urinalysis test in November 2019. I conclude that orders restraining the parties from using illegal drugs and from consuming alcohol to excess when the children are in their care will address these concerns in the future.
Physical abuse or physical discipline towards the children
Physical discipline of children is never an appropriate response from a parent. It is concerning that the children identify a risk of physical discipline from their father and also from the paternal grandmother.
The father says that he witnessed the mother yelling at the children and abusing them during the relationship and that even after separation he had observed the mother swear at the children or yell at them and that the children also complained about the mother’s behaviour.[25] Neither X nor Y made any such complaints to Ms K.
[25] Father’s trial Affidavit, paras.103, 147
The mother alleges that the father is physically aggressive towards the children, particularly Y. One example is the incident at the family wedding in 2019. In his trial Affidavit the father said that Y was misbehaving at the wedding reception and he dealt with it by “placing a hand on her shoulder and removing her from the situation”.[26] Y told Ms K that she had been misbehaving and the father chastised her, slapped her across the face and took her outside. X described the father dragging Y down the hall by her hair.
[26] Father’s trial Affidavit, para.148
In the course of cross examination the father denied that he ‘dragged’ Y from the wedding reception, saying that he grabbed Y by her shoulder and hand, not by her hair. When asked if he slapped Y across the face, the father gave evidence to the effect that he “tapped her on the face” and removed her from the celebration. The father was asked whether Y was traumatised by his behaviour and he responded “possibly”. [27]
[27] Cross-examination of the father, 20 July 2020
Yet again, the father’s description of this incident during cross-examination was considerably more concerning than set out in his trial Affidavit. How the father distinguished a “tap on the face” from “a slap to the face” was not made clear to the Court. Both acts would potentially constitute an assault.
The mother says another incident occurred on 30 December 2019, when the father apparently hit Z on her ‘pinky’ finger with a paint brush, leaving her finger bruised.[28] The father was cross-examined and recalled the incident as a playful exchange with Z. I accept his evidence regarding this matter and I do not consider this incident indicates inappropriate physical discipline by the father.
[28]Mother’s trial Affidavit Exhibit Book, Document 10 “Text exchange between the children and the mother”, at p.8
Both parents accuse the other parent of verbally abusing the children or threatening them when they misbehave. The mother relied upon a series of text messages between February and December 2019, where X or her sisters complain about various aspects of the father’s care.
On examining the text messages, most entries relate to X’s complaints about her sisters’ behaviour. The mother generally tried to respond appropriately, for example, suggesting to X that she speak to her father. At other times, however, her response is implicitly critical of the father. On 30 December 2019 X sent a text message to the mother “Dad is yelling at Y and throwing her across the house. What should I do?” The mother responded by texting “Throwing her across the house? Call the police.” Significantly, X’s next message says “No, like pushing her and pulling her to her room”, which is a substantially less dramatic description. Despite this, the mother responded by texting “If you are scared or feel like she could be hurt, call the police, that’s all you can do”.[29]
[29] Ibid, Document 10, at p.12
X was clearly affected by her father’s behaviour towards Y, to the point where she contacted her mother for support. However, the mother’s suggestion to call the police was an unhelpful over-reaction.
In April 2020 Y texted her mother because she had suffered a burn from boiling water. A text exchange then followed, as Y sought comfort from her mother. At one point the mother responds appropriately, texting “I think I should give Dad a chance to parent instead of interfering. You’re in Dad’s care.” Unfortunately, the mother then goes on to criticise the father for not calling a locum doctor to come and examine Y’s injury.[30]
[30] Mother’s Exhibit Book, Document 10, pp.14-20
Both parents acknowledge that the children’s behaviour can be problematic. Both parents clearly struggle to intervene appropriately at times. The father’s description of his parenting engagement with the children was somewhat romanticised and the reality of managing the children’s behaviour is clearly more challenging than he conveyed.
The mother was not cross examined at any length regarding her management of the children’s behaviour. The children did not complain regarding the mother’s discipline during their family assessment interview. Ms K described the children as “guarded” when discussing their mother, but this was not reflected in their observed interaction, nor does their text message communication with her suggest a relationship that is based on fear or uncertainty.
The father has failed to comply with the Court’s order prohibiting physical discipline on at least one occasion at the wedding in 2019. Nonetheless I am satisfied that these proceedings, together with this Judgment, will reinforce his comprehension that physical discipline is an unacceptable response in any circumstances.
Co-parenting communication
The father complains that the mother’s communication towards him is invariably rude, threatening and abusive. He provided the Court with a number of text messages sent from the mother in 2018 and those messages confirm his complaints.[31] Some of the messages are abusive and insulting in their tone, particularly text messages from the mother in relation to child support.[32] Other messages simply reflect the mother’s anger and frustration about unresolved parenting disputes.
[31] Father’s Exhibit Book, Document 9, Text messages between January and September 2018
[32] Ibid, pp.41-42
Only two responding messages from the father are included and it is difficult to assess the overall communication that occurred between the parties over that nine month period. Nonetheless, the rude and hostile tone adopted by the mother further undermined the co-parenting dynamic.
The father may have controlled his hostility in text communication with the mother during that time, however the whole tone of the father’s case, and his Affidavit material before the Court, is hostile and demeaning towards the mother. This does not excuse the mother’s abusive language, but I am satisfied the hostility between the parties extended well beyond the mother’s abusive text messages in 2018.
Parental capacity
In the course of her assessment, Ms K queried whether there are issues regarding the mother’s mental health.[33] Having considered the material on the Court file, I conclude that the factors identified by Ms K reflect the level of conflict that exists between the parents, rather than indicating mental health issues.
[33] Family Assessment report, paras. 49 and 95
Ms K addressed the father’s allegation of the mother smashing the children’s belongings, such as X’s telephone, noting that such behaviour is likely to have created anxiety in the children. The mother did not admit this behaviour, nor did the children raise any such complaints during their interviews. Ms K continued:
“The mother’s alleged behaviour towards the children in this regard cannot be seen as acceptable, and her ways of managing her anger and frustration while caring for the children, are critical in the children’s perception and experience of their personal safety and sense of protection while in her care.”[34]
[34] Ibid, para.90
Ms K’s concerns are legitimate, but she does not draw the same direct link when discussing the father’s aggressive behaviour, which he has admitted. Ms K noted that the children’s recollection of the “safe key incident” were real and frightening for them. Ms K went on to conclude:
“The father’s behaviour is considered in this instance to be abusive and unacceptable, and his apparent unwillingness or inability to deal with the children’s occasional contrary behaviour, may require further skill development on his part.”[35]
[35] Ibid para.91
Ms K’s reference to “further skill development” by the father downplays the impact of the father’s “abusive and unacceptable behaviour” upon the children. I conclude that the father’s behaviour has even more clearly undermined the children’s perception of their “personal safety and sense of protection” whilst in his care.
As with every family, both parties have their shortcomings, and their strengths. Both parents have the capacity to provide for the children’s day to day care and their emotional and intellectual needs, particularly if they can focus on their parenting responsibilities, rather than past complaints and grievances. I am confident both parents will reflect upon these reasons, as they meet their ongoing obligation to create an emotionally and physically safe environment for their children.
(ca) the extent to which each of the children’s parents have fulfilled, or failed to fulfil, their obligations to maintain the children
The mother supports the children on Centrelink benefits and modest child support payments. I am satisfied that she provides an appropriate standard of care for the children despite her limited income.
Issues surrounding child support and the parties’ obligation to provide financial support for the children was a significant focus during the trial. The mother is reliant upon Centrelink benefits and any reduction in child support would have had a detrimental impact upon her financial circumstances. The mother argued that the father manipulated his employment in order to reduce his child support obligation, which has placed her under further financial stress.
The father disputed this arguing that his changed employment was largely beyond his control. In March 2018 the father reviewed the child support assessment on the basis that the children were living in a 50/50 care arrangement. The mother initially challenged his review, but ultimately did not pursue her objection. Accordingly the Child Support Agency accepted his claim and reduced his child support obligation. The father cannot be criticised in this regard.
At the time of separation and subsequently, the father was living in the jointly owned matrimonial home and also owned four investment properties. The difference in their financial circumstances would have seemed very stark, from the mother’s perspective.
The mother argued that the father failed to assist her with accommodation at the time of separation, or subsequently when her lease at E Street was not renewed. The father was cross-examined extensively about this issue, particularly regarding the mother’s proposal that she and the children could have lived in one of his investment properties, or alternatively in the former matrimonial home. The father gave evidence that he was not prepared to make one of his investment properties available to the mother because he did not trust her to abide by any agreement to pay rent. Sadly, this lack of trust between the parents was the genesis for additional conflict between them when the mother ultimately moved to Suburb J.
Counsel suggested to the father that he could have offset such financial support against his child support obligations, but this cross-examination was misguided and unhelpful. In a perfect world, the father could have assisted the mother with accommodation. However, he was under no obligation to offer subsidised housing to the mother, nor could he be expected to have understood the potential child support options.
In hindsight, it is unfortunate that the parties were unable to agree that the mother could take over one of the properties. This would have enabled her to remain living closer to the children’s present school and may have avoided much of the conflict that has arisen since she moved from E Street in 2018.
The mother resents the father’s reduced child support, but I am satisfied that the father has generally met his obligations to provide financial support for the children.
(d) likely effect of any changes in the children’s circumstances
The father proposes a change of primary care for the children, which would be a major change in the children’s lives. In doing so he relies upon Ms K’s recommendations. However Ms K did not address the emotional implications this may create for the children, particularly given X and Y want to remain living in their mother’s care.
In reaching her conclusion, Ms K was critical of the mother’s decision to move away from the Region P suburbs. Ms K noted that the mother’s relocation has created issues for the children in terms of the travel to and from school. Ms K went on:
“The mother’s impulsive and apparent ill-considered decision to move away from the children’s established school and friends, demonstrates a lack of focus on the children’s interests above her own.”[36]
Ms K’s assessment of the mother’s actions are unfairly harsh, in my view. After separation, one parent inevitably moves to a new home. When a parent is subject to the vagaries of the rental market, they do not always have ideal accommodation opportunities available to them. They should not be criticised for this situation.
[36] Family Assessment Report, para.102
The mother had been in stable rental accommodation for two years after separation. In 2018 her lease at E Street was not renewed and she needed to find alternate accommodation. The mother moved to stay temporarily with the maternal grandmother in Suburb H, still within the metropolitan area of Adelaide. She then moved to Suburb J, a location she chose because she felt the children would enjoy the lifestyle on offer there and because she could afford to rent a four bedroom home in that location. Given the level of sibling conflict, renting a four bedroom home was an understandable approach to improve this dynamic.
The father provided to the Court a list of rental properties in the area which he said were within the mother’s price range, however a number of these properties only provided two bedrooms.[37] I accept the mother’s evidence that she could not easily afford to rent a four bedroom house near the children’s school and that as a single parent, competition within the rental market was an additional complication. For these reasons, I reject Ms K’s criticism of the mother’s move to Suburb J.
[37] Father’s trial Affidavit Book of Exhibits, Exhibit 15
The children’s schooling
When parents separate, this may lead to a change in school for the children, depending upon the parents’ circumstances. The mother’s move to Suburb J has created additional travel for the children to and from D School. It is unsurprising that the mother seeks to change the children’s school to a venue closer to her home. Any primary caregiver is entitled to weigh up the disruption to the children’s schooling versus the impact of a longer daily commute. This is a sensible option to put forward, just as the father’s focus on continuity of schooling is equally child-focussed.
The mother would like to change the children’s school, but she has complied with their ongoing attendance at D School. Ms K suggests the mother could move closer to the children’s current school, but this is clearly not a straightforward, financially viable option. Ms K does not consider that the father could also have adopted a more flexible attitude towards the children attending a different school, perhaps nominating a school midway between their homes. Both parents could have resolved this issue for the children, if they chose.
The longer commute from Suburb J did undermine the children’s school attendance and this is reflected in their 2019 school attendance records.[38] The Court was sufficiently concerned by these records to pronounce formal orders on 11 February 2020, directing the mother to ensure that the children attend at school on time each day, unless unwell.
[38] Ibid, Exhibit 23
The mother confirmed in her trial Affidavit that she has been diligent in delivering the children to school on time during 2020 and her evidence was not challenged. No records have been presented by either parent in relation to the current school year. I am confident the father would have presented such records if they raised ongoing concerns.
Ms K is rightly critical when the mother suggested that “it’s up to the children” to decide which school they attend. The mother gave evidence that the children were unhappy at D School but this is not reflected in the children’s school reports. X performed at a very high academic level throughout 2019 and was nominated as School Captain for the 2020 school year. Z is also performing well at school.
Y’s school progress is recorded as “satisfactory” or “good”, according to her 2019 school report. Both parties acknowledge that she exhibits behavioural problems in the classroom, as she does at home, and these issues have undermined her achievements. This is an ongoing problem. Y was suspended from school earlier this year. The mother says that Y is being bullied and that the school has not addressed the issue but I consider it is equally likely that Y’s own behaviour causes conflict within her friendship groups.
The mother’s evidence of bullying is not at a level that would justify a change of school for Y. Nonetheless, the impact of the daily commute is a factor that must be considered.
(g) the maturity, sex, background and personal characteristics of the children
I have addressed issues relating to the children’s ages, their relevant educational needs and Y’s behavioural difficulties elsewhere in these reasons. I do not need to address these factors any further.
(j) any family violence involving the children or either parent
I have already set out my findings regarding the impact of family violence.
(l) whether it would be preferable to make the order least likely to lead to further proceedings
It is well understood that ongoing litigation is not in the children’s best interests. The Court will endeavour to pronounce orders that minimise the risk of further proceedings, but ultimately it is up to each party to improve their parenting communication and manage their parenting responsibilities between them, away from the Court.
(m) any other relevant fact or circumstance
Not relevant
Conclusion
Both parties consent to an order for equal shared parental responsibility and I conclude this is in the children’s best interests. An order for equal shared parental responsibility triggers the effect of s.65DAA. Both parties acknowledge that the children should spend substantial and significant time with each parent, but s.65DAA (1) directs the Court to first consider whether an order for equal time is in the best interests of X, Y and Z.
What living arrangements are in the children’s best interests?
I have considered whether the children should live equally with the parents on a week about basis, but the lack of a functional co-parenting relationship, together with the distance between the parties’ homes, makes an equal time parenting arrangement problematic.
The evidence indicates that there are criticisms to be made regarding both parties’ parenting style. The mother has acknowledged ongoing occasional drug use. Ms K was critical of the mother’s engagement with the children during the observed interaction, and her hostility towards the father. In turn, the father has responded aggressively towards the mother in the past and has resorted to physical discipline in managing the children’s behaviour. Ms K noted that the father lacked insight into his interaction with the children, which led to Y feeling excluded and alienated. These concerns must be acknowledged, but they do not exclude either parent from maintaining a significant parenting role.
I have seriously considered whether the children should move to live in the father’s primary care, but I conclude that this is not the best outcome for X, Y and Z. Ms K’s recommendation in that regard was largely prompted by the mother’s move to Suburb J, [39] however I place a different emphasis on this. Importantly, Ms K’s recommendations included a further paragraph:
“ In the event the mother returns to live near the children’s current school, that consideration be given to the parties sharing the care of the children on an equal basis.”[40]
[39] Family Report, para. 108
[40] Ibid, para. 110
Again, her recommendation has focussed largely on the stability of the children’s schooling, but other factors are equally important in determining the children’s best interests.
Both parents are capable of providing for the children’s care and welfare, albeit they each have their limitations. The children are settled in their mother’s care and are progressing reasonably well. The mother has sought counselling support for Y in an effort to address her behavioural issues. The children have maintained a meaningful relationship with their father, despite the poor co-parenting relationship. I conclude that the mother’s parenting capacity is not so lacking, nor the father’s capacity so superior, as to warrant the emotional disruption that a change in primary care would create for the girls.
I conclude that the children should remain living in the mother’s primary care. At the same time, it is essential that X, Y and Z are given the space and the opportunity to maintain a close, meaningful relationship with both of their parents over the coming years. X and Y raised the option of spending more time in their father’s care. This reflects the strength of their relationship with both parents.
In the circumstances, I conclude that the children should spend additional time in their father’s care. The children presently spend four nights per fortnight in their father’s care. I conclude this should be increased to six nights per fortnight, together with half of each school holiday period and time on special occasions. This will facilitate their ongoing relationship with him and will send a clear message to X, Y and Z that both parents are substantially responsible for their care and welfare. It also demonstrates to them that the Court has confidence in both parties’ parenting capacity.
The children’s future school enrolment
The parties have been unable to reach agreement regarding the children’s future school enrolment. The father proposes that all three children complete their primary school education at D School, whereas the mother proposes that Y and Z move to Q School for the 2021 school year and ongoing.
The father is opposed to the children’s schooling being disrupted. He argues that the mother’s decision to move to Suburb J should not impact upon the children’s schooling. He was particularly concerned that the mother’s proposal would see Y spend the final year of her primary school education at Q School before then moving on to high school. Ms K agreed that this could be problematic for Y.
The Court has now determined that the children will remain living in the mother’s primary care and, accordingly, the children’s future school arrangements must be addressed. Q School would be inconvenient for the father, in the same way that the children’s present attendance at D School is inconvenient for the mother. More importantly, the current travel to and from school is inconvenient and tiring for the children.
The mother argues that Y is being bullied and is unhappy at D School but there is no independent evidence to support this. Both parents acknowledge that Y has behavioural difficulties and that she struggles to maintain friendships. These factors may account for her apparent unhappiness at the school.
The mother is living at Suburb J. It is simply impractical for the children to continue attending their current school in the longer term. I conclude that commencing in 2021, Y and Z should be enrolled at a primary school that is approximately equidistant from each parent’s home. This will reduce the children’s commute on any given day and also takes into account X’s high school enrolment.
I acknowledge moving schools in 2021 may not be ideal for Y, but it will coincide with X moving on to high school. The father says that X has helped Y within her friendship group, which has been important for Y, but it is clear that Y has not been as settled as her sisters. It may be that moving to another school will provide Y with an opportunity to make a fresh start, away from old patterns and expectations. It may also enable Y to develop friendships that she can take with her onto high school.
Z is still in middle primary school and will have ample time to settle into a new school. She will then be able to follow either of her sisters into high school, to the venue that will be most appropriate for her at that time.
Which high school should X attend?
The mother has enrolled X at C School, (“C School”) which she says is X’s preferred choice. The father accepted that X is interested in attending C School but says other factors need to be considered. He argues that there is no guarantee Y or Z will be able to follow X to C School, as the school does not have a sibling enrolment policy. The father is correct in this regard, however many families find themselves with children attending different high schools, whether due to gender, aptitude or career interests.
The father gave evidence that he is concerned for Y’s welfare if she and X are attending separate schools, given X’s role in supporting Y’s social engagement with friendship groups. That may be so, but it is not in X’s best interests to have her educational opportunities tied to Y’s needs.
When cross-examined on this issue, Ms K said that if X has a strong interest in a career as a vet and wants to attend C School, then that was an important consideration. Ms K noted that the children may not consider different high schools to be a problem, particularly as they will be attending different schools in 2021.
The father gave evidence that X had expressed interest in other schools, but he did not present any evidence that he has investigated those other options. In addition, it seems that both parties failed to communicate with each other about this important issue.
The father agreed in cross-examination that he would not object to X attending C School High School if that is what his daughter really wanted. I am satisfied that X has expressed a clear interest in attending C School, as it will support her career aspirations. I conclude it is in X’s best interests that she attend C School.
Obviously it will be helpful if Y and Z are able to follow X to C School. If not, then the parties will need to agree upon a high school that is midway between their homes and preferably relatively close, or en route, to C School, to facilitate daily school commutes.
School enrolments for Y and Z
The parties will have the opportunity to exchange proposals and nominate their preferred schooling options regarding the primary and high school options for the children. If they are unable to reach agreement then one party will need to have that decision-making responsibility, to avoid the parties returning to Court on this issue. In the event the parties are unable to reach agreement, the orders will include a default provision that provides for the father to nominate the children’s primary school and the mother to nominate their high school.
Ancillary parenting issues
The mother sought orders for the father to be personally available to supervise the children while they are in his care during the school holidays. I am satisfied this order should continue, but in a modified form such that he be substantially available to personally care for the children. The mother also sought precise orders in relation to either party travelling interstate with the children and proposed that any travel be limited to the children’s usual holiday time in that parent’s care. I agree that the parents should notify each other regarding travel plans for the children, but I am not prepared to restrict the children’s travel to the extent proposed by the mother.
The parties should be able to take the children on a holiday interstate or overseas for a period longer than seven days during school holidays, provided that the children then spend equivalent make up time in the other parent’s care upon their return.
The mother also sought orders for the father to notify her in the event he was to be absent from South Australia, with the children to return to her care for the period of his absence. I agree that as a matter of courtesy, each parent should notify the other parent if they are travelling interstate for any period. I am not satisfied that the children should immediately return to the other parent’s care, but if the travelling parent is to be absent for more than three nights, it would be appropriate that the other parent be given first option to care for the children during that absence.
I now make final orders as set out at the commencement of these Reasons. I am satisfied these orders are in the best interests of X, Y and Z.
I certify that the preceding one hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of Judge C Kelly
Associate:
Date: 28 September 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Injunction
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Procedural Fairness
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Costs
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Remedies
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