Channing and Snow
[2018] FCCA 367
•23 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHANNING & SNOW | [2018] FCCA 367 |
| Catchwords: FAMILY LAW – Children – application for final parenting orders – best interests of the children the paramount consideration – whether orders should provide for equal shared parental responsibility – whether an equal time arrangement is in the best interests of the children – question of overseas travel – held orders should provide for equal shared parental responsibility and equal time spent by the children with each parent – order that parties re-engage in family therapy – orders made providing for overseas travel. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65AA, 65DAA, 65DAC |
| Cases cited: Champness & Hanson [2009] FamCAFC 96 Collu & Rinaldo [2010] FamCAFC 53 G & C [2006] FamCA 994 |
| Applicant: | MR CHANNING |
| Respondent: | MS SNOW |
| File Number: | MLC 239 of 2015 |
| Judgment of: | Judge Jones |
| Hearing dates: | 10-11 August, 30-31 October 2017 |
| Date of Last Submission: | 31 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Robinson |
| Solicitors for the Applicant: | Clancy & Triado |
| Counsel for the Respondent: | Ms Clark |
| Solicitors for the Respondent: | Guthrie & Associates |
ORDERS
All previous parenting orders be discharged.
The Mother and the Father have equal shared parental responsibility for the children X born (omitted) 2007 (“X”) and Y born (omitted) 2009 (“Y”) (collectively “the children”).
Commencing Monday, 5 March 2018 during school term time the children live with each party in each fortnight as follows:
(a)with the Mother from the conclusion of school on Monday in the first week until the commencement of school on Monday in the second week; and
(b)with the Father from the conclusion of school on Monday in the second week until the commencement of school on Monday in the following week.
The children spend time with the Father for one half of all end of term (short and long Summer) school holiday periods, being the first half in odd numbered years and the second half in even numbered years, with the school holidays commencing on the last day of school prior to the holidays.
The children spend time with the Mother for one half of all end of term (short and long Summer) school holiday periods, being the second half in odd numbered years and the first half in even numbered years, with the school holidays commencing on the last day of school prior to the holidays.
In all even numbered years:
(a)the children spend time with the Father from 9am on Good Friday until 12pm on Easter Sunday;
(b)the children spend time with the Mother from 12pm on Easter Sunday until 6pm on Easter Monday;
(c)the children spend time with the Father on Halloween, 31 October, from 9am on Halloween until 9am the following day on non-school days or from after school until 8pm on school days;
(d)the children spend time with the Father from 12pm Christmas Eve until 12pm Christmas Day; and
(e)the children spend time with the Mother from 12pm Christmas Day until 12pm Boxing Day.
In all odd numbered years:
(a)the children spend time with the Mother from 9am on Good Friday until 12pm on Easter Sunday;
(b)the children spend time with the Father from 12pm on Easter Sunday until 6pm on Easter Monday;
(c)the children spend time with the Mother on Halloween, 31 October, from 9am on Halloween until 9am the following day on non-school days or from after school until 8pm on school days;
(d)the children spend time with the Mother from 12pm Christmas Eve until 12pm Christmas Day; and
(e)the children spend time with the Father from 12pm Christmas Day until 12pm Boxing Day.
The children shall spend time with the Father from 5pm on the day prior to Father’s Day until 6pm on Father’s Day.
The children shall spend time with the Mother from 5pm on the day prior to Mother’s Day until 6pm on Mother’s Day.
The children shall spend time with both the Mother and Father on the children’s birthdays, with the children to spend time with whichever parent they are not otherwise in the care of from the conclusion of school until 6:30pm on school days and from 2pm until 6pm on non-school days (including curriculum days and public holidays).
Orders 4 and 5 are suspended to give effect to the special occasion and holiday time set out in Orders 6-10 and 29-31 and shall then resume as though the cycle had not been interrupted.
The children may otherwise spend time with the Mother and Father as agreed between the parties in writing.
Changeover shall take place at school when time commences or concludes with school and otherwise shall be at (omitted).
The children shall communicate with the Mother:
(a)between 7:00pm to 7:30pm on Saturday and Monday evenings when the children are otherwise spending time with the Father during school terms; and
(b)between 7:00pm to 7:30pm on Saturday, Monday and Wednesday evenings during school holidays.
The children shall communicate with the Father:
(a)between 7:30pm to 8pm on Saturday and Wednesday evenings when the children are otherwise spending time with the Mother during school terms; and
(b)between 7:30pm to 8pm on Saturday, Monday and Wednesday evenings during school holidays.
The Mother shall forthwith provide X with a mobile phone which she and Y may use to communicate with the parent whose care they are not in whenever they wish, and the parties are restrained by injunction from interfering with the children’s use of the mobile phone to communicate with the other parent. The parents shall ensure that the mobile phone battery is charged at all times.
The Mother and Father must ensure that the children or either of them have privacy when they are communicating with the other parent.
The Mother and the Father are restrained by injunction from:
(a)leaving the children unattended in a vehicle; and
(b)taking the children to work.
The Mother and the Father forthwith take all steps to arrange family therapy with Dr B and shall comply with all recommendations made by Dr B with the costs of family therapy to be shared equally between the parties. A copy of these Orders and this judgment are to be provided to Dr B prior to family therapy recommencing.
If the children suffer a medical emergency, the party whose care they are in must inform the other party as soon as practicable of the details of the treating practitioner and/or body and the location of where the child/ren are and shall seek to consult the other party and reach agreement on any treatment decisions.
The parents shall both have access to all medical records.
Each parent must keep the other parent informed with respect to all medical and health issues regarding the children, and provide details of all medication required to be taken by the children and any required medical treatment or specific instructions about the children’s medical care from a treating practitioner.
Each party advise the other of any changes to their mobile telephone number within 48 hours of such change.
Both parties are at liberty to obtain all of the children’s school reports, circulars, memoranda, correspondence, photo order forms or information specifically or individually relating to the children’s education and sporting activities.
The parties are both permitted to attend parent teacher interviews and meetings, school plays, sporting events and all other similar activities that parents are usually entitled to attend.
Within 30 days of the date of these Orders, the parties do all things necessary and sign all such forms to ensure that the children both hold a valid Australian passport until they turn 18.
Within 30 days of the date of these Orders, the parties do all things necessary and sign all such forms to ensure that the children both hold a valid (nationality omitted) passport until they both turn 18.
The Father do all things necessary to sign an application and any documentation provided by the Mother to him and otherwise do all things necessary to obtain dual citizenship of Australia and (country omitted) for the children within 30 days of these Orders.
The Mother and the Father be permitted to take the children overseas during any school holidays provided:
(a)the parent proposing to travel shall give the other parent not later than 60 days’ written notice of their intention to do so, including notice of the country of destination and period of travel; and
(b)the parent proposing to travel shall give the other parent not later than 30 days prior to the date of travel a full itinerary and copies of return tickets for the parent and the children.
Commencing 2018, the Mother and the Father be permitted to take the children overseas for two weeks during any school term holidays provided:
(a)commencing 2018 and each alternate year thereafter, the Father be permitted to travel overseas with the children, and commencing 2019 and each alternate year thereafter the Mother be permitted to travel overseas with the children;
(b)the parent proposing to travel shall give the other parent not later than 60 days’ written notice of their intention to do so, including notice of the country of destination and period of travel;
(c)the parent proposing to travel shall give the other parent not later than 30 days prior to the date of travel a full itinerary and copies of return tickets for the parent and the children;
(d)make-up time is provided to the non-travelling parent; and
(e)as otherwise agreed between the parties in writing.
In 2019, the Mother be permitted to travel with the children to (country omitted) for the purpose of celebrating the Maternal Grandparents’ birthdays, provided that the period of travel is no more than three weeks and the children do not miss school for a period greater than two weeks and subject to the provisions of Orders 30(b)-(e) herein.
Both the Mother and the Father are restrained by injunction from enrolling the children in any additional extracurricular activity. Any future decision to enrol the children in an additional extracurricular activity shall only be made by agreement in writing between the parties or at family therapy with Dr B as provided for in Order 19 above.
The Mother and the Father shall ensure that all uniforms and any equipment necessary for the children to participate in the extracurricular activities in accordance with Order 32 above are provided to the parent whose care the children will be in by no later than 9.00am on the Monday morning. The delivery of the uniforms and equipment shall be by agreement in writing between the parties or, in default of agreement, by leaving said items in a bag at the front door of the parent’s house. All uniforms are to be washed and cleaned prior to being delivered.
In the event that either parent intends to take the children on a holiday or camping during the time that the children are spending time with them, that parent is to provide the other parent with details of where the children will be staying and when they will be expected to be away.
Both parents are restrained by injunction from:
(a)exposing the children, whether directly or indirectly, to family violence;
(b)from abusing, belittling or denigrating the other party or a member of their family, household or friendship group, within the presence or hearing of the children; and
(c)consuming alcohol to excess 24 hours prior to and during any time that the children are in their care.
The Father must forthwith sign and do all things necessary to enrol in, attend and complete a Men’s Behaviour Change Program and must forward his certificate of completion to the Mother within seven days of finishing the program.
The parties forthwith sign and do all things necessary to enrol in, attend and complete an intensive child inclusive parenting intervention, being the Family Life Parenting Orders Program offered by Family Life, (omitted), if available, or if unavailable, as agreed between the parties in writing.
NOTATION
A.Pursuant to s.65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Channing & Snow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLC 239 of 2015
| MR CHANNING |
Applicant
And
| MS SNOW |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns the future parenting arrangements for X born (omitted) 2007 (“X”), aged ten, and Y born (omitted) 2009 (“Y”), aged eight, (collectively “the children”).
The mother of the children is MS SNOW born (omitted) 1978 (“the Mother”). The Mother is 39 years of age and is employed as a (occupation omitted).
The father of the children is MR CHANNING born (omitted) 1969 (“the Father”). The Father is 48 years of age and is self-employed.
This is a matter which has been the subject of litigation for far too long. Proceedings commenced on 14 January 2015 when the Father filed an Initiating Application seeking final parenting orders. The Mother filed a Response on 9 April 2015 seeking final parenting and property orders. The parties managed to reach a property settlement and final property consent orders were issued on 12 February 2016, however, the dispute in relation to parenting arrangements for the children has continued unabated.
The Mother was born in (country omitted) and the Father was born in Australia. The parties met whilst the Mother was travelling in Australia in 1997. The Mother returned to Australia and the parties commenced cohabitating in 1999, settling in Victoria. The parties separated on
6 March 2014 when the Mother left the former matrimonial home with the children. The Mother has re-partnered and by all accounts is settled in a happy relationship. The Mother’s partner, Mr T (“Mr T”), has two children who are ten and eight years old and who spend regular time with their father. Mr T works as a (occupation omitted).
Both parents have been assessed by all independent experts engaged for the purposes of these proceedings as good and loving parents and the children clearly have warm and loving attachments with both their parents. The parents attended Roundtable Dispute Resolution and entered into a Parenting Plan on 14 November 2014, which provided for equal shared parental responsibility and living arrangements for the children under which the children spend nine nights with the Mother and five nights with the Father (“9/5 arrangement”).
The parents live close by to each other in a comfortable suburb in the outskirts of Melbourne and the children are happily settled at (omitted) Primary School.
Both parents are actively committed to providing the children with experiences in as many extracurricular activities as possible and both have taken steps (on occasions unilaterally) to ensure the children’s medical needs are properly attended to.
Looking objectively at these facts and the time period since separation, one would have expected that the parents were capable of reaching an agreed parenting arrangement in the best interests of their children.
Instead, the evidence before the Court reveals a high level of persistent animosity and conflict between the parents over issues which one would have expected parents behaving rationally and in a child-focused manner would have been able to reach agreement on. A significant amount of the evidence in these proceedings focused on the seemingly persistent disputes between the parents about what extracurricular activities the children should engage in and the actions of one parent unilaterally seeking medical or dental attention for the children. Considering the evidence given in relation to this, I wondered why these parents proved intractably unable to sort out these issues. Clearly their communication is poor, but the subject matters of the parties’ disputes are, in my opinion, not ones which have a direct or even peripheral relevance to the question of what is in the best interests of the children. It seemed to me at the time of the hearing that, in relation to the issues in dispute, the parties were engaging in a process of competitive parenting.
There is no doubt that the children have been exposed to the parents’ high level of conflict, which at times has occurred at changeover. The expert opinions, with which I agree, is that this conflict, which the parents could better manage if they put their mind to it, has adversely affected the children’s emotional needs and their best interests in a general sense.
These proceedings were listed for a two-day final hearing on 10 August 2017 on the advice of the parents’ then legal representatives. Unfortunately, the proceedings remained only part-heard at the end of the second day. Two further days of hearing were set down and the matter recommenced part-heard on 30 October 2017. In my opinion, four days of hearing the evidence was unnecessary and driven largely by the unremitting animosity between the parents about the issues I have identified above. The reasons for the persistence of such a high level of conflict and poor communication between the parties are somewhat difficult to untangle. The evidence of the experts on the parties’ conflict and communication is dealt with below. However, I have formed a view that both parents take responsibility for this. The Mother is clearly hypersensitive to what she perceives as provocative actions on the part of the Father. On the other hand, the Father has, on occasions, conducted himself, whether intentionally or unintentionally, in a way which has the effect of producing extreme responses from the Mother.
The parties were ordered by the Court on 17 November 2016 to attend family therapy conducted by Dr B (“Dr B”), which commenced at the end of 2016. A particular purpose of the family therapy was to assist the parents with their communication. Upon hearing the evidence in these proceedings, I was surprised at the disconnect between the Mother’s and Father’s views about the assistance the family therapy had provided in facilitating improved communication between them. The Mother’s implacable view was that therapeutic counselling had not been helpful and that she did not wish to continue with it. The Father’s view was that there had been progress and that the family therapy had been helpful. As will be discussed in further detail later in this judgment, Dr B’s views, which were obviously limited to her experience of the parties from one therapy session to another, were that there had been improvement in the parents’ communication.
I formed the view that the Mother’s evidence that therapy had not assisted the parties was a deliberate strategy the Mother engaged in to support her case that, because the parties’ conflict remained at such a high level and their communication at such a low level, the Mother should have sole parental responsibility for deciding certain issues in relation to the children and that an equal time living arrangement was not in the children’s best interests.
Commonwealth Courts with jurisdiction under the Family Law Act 1975 (Cth) (“the Act”) are not uncommonly subject to scrutiny in relation to the delay in having matters, particularly parenting matters, dealt with at a final hearing. These proceedings are an example of proceedings which ought not have taken four days of the Court’s resources, thus precluding the Court from dealing with other parenting proceedings that involve serious dysfunction and require timely and immediate attention. I repeat that, in my opinion, these parents have indulged for far too long in their animosity and conflict and should now move on, focusing in a genuine way on their children’s best interests.
Affidavits and Documents Relied Upon
The Father relied on the following affidavits and documents:
a)Affidavit of Mr Channing filed on 15 January 2016;
b)Affidavit of Ms W filed on 2 February 2016;
c)Affidavit of Mr Channing filed on 19 October 2016;
d)Affidavit of Mr Channing filed on 18 July 2017;
e)The Family Reports prepared by Dr O dated 20 January 2016 and 14 November 2016; and
f)A report prepared by Dr B dated 8 August 2017 and filed on 8 August 2017.
The Father tendered the following exhibits:
a)Exhibit F1 – Letter from the children’s school to the Mother dated 28 March 2017.
The Father and Ms W (“Ms W”) were cross-examined.
The Mother relied on the following affidavits and documents:
a)Affidavit of Ms Snow filed on 13 April 2015;
b)Affidavit of Ms J filed on 5 June 2015;
c)Affidavit of Ms Snow filed on 29 January 2016;
d)Affidavit of Ms Snow filed on 7 November 2016;
e)Family Report of Dr O dated 14 November 2016;
f)Affidavit of Dr O filed on 23 November 2016;
g)Affidavit of Ms D filed on 7 November 2016; and
h)Affidavit of Ms Snow filed on 13 July 2017.
The Mother tendered the following exhibits:
a)Exhibit M1 – (omitted) Bank statements in the names of the parties dated 6 November 2013 to 28 February 2014;
b)Exhibit M2 – SMS text messages between the parties dated 28 February 2017 to 1 March 2017;
c)Exhibit M3 – SMS text messages between the parties dated 28 April 2017 to 3 May 2017;
d)Exhibit M4 – SMS text messages between the parties dated 27 May 2016 to 1 June 2016;
e)Exhibit M5 – SMS text messages between the parties dated 14 November 2016 to 19 November 2016;
f)Exhibit M6 – SMS text messages between the parties dated 5 January 2017 to 18 January 2017 (including a screenshot from 24 August 2016);
g)Exhibit M7 – SMS text messages between the parties dated 10 May 2017 to 13 May 2017;
h)Exhibit M8 – SMS text messages between the parties dated 2 December 2016 to 19 December 2016;
i)Exhibit M9 – SMS text messages between the parties dated 3 March 2017 to 10 March 2017;
j)Exhibit M10 – SMS text messages between the parties dated 14 May 2017 to 15 May 2017; and
k)Exhibit M11 – SMS text messages between the parties dated 14 April 2017 to 15 April 2017.
The Mother, Ms D and Ms J were cross-examined.
A Family Report prepared by Dr O, Family Consultant, was marked as an exhibit as follows:
a)Court Exhibit 1 – Family Report prepared by Dr O dated 20 January 2016.
Dr B and Dr O (“Dr O”) were cross-examined.
The Parties’ Proposals
The Father’s Proposal
The Father’s proposed parenting orders are as follows:
1)That the Father and the Mother have equal shared parental responsibility for the children of the relationship, X born (omitted) 2007 and Y born (omitted) 2009.
2)That during school term time (suspended during holidays), the children live with each party in each fortnight as follows:
a)With the Mother from the conclusion of school on Monday in the first week until the commencement of school on Monday in the second week; and
b)With the Father from the conclusion of school on Monday in the second week until the commencement of school on Monday in the following week.
3)That the children spend time with the Father for one half of all gazetted school holiday periods, being the first half in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter; and that any provision for time that is inconsistent with school holiday time be suspended during gazetted school holiday periods.
4)That the children spend time with the Mother for one half of all gazetted school holiday periods, being the second half in odd numbered years and in alternate years thereafter and the first half in even numbered years and in alternate years thereafter; and that any provision for time that is inconsistent with school holiday time be suspended during gazetted school holiday periods.
5)That in all even numbered years:
a)The children spend time with the Father from 12pm Christmas Eve until 12pm Christmas Day;
b)The children spend time with the Mother from 12pm Christmas Day until 12pm Boxing Day; and
c)The children spend time with the Father from 10am on Good Friday until 6pm on Easter Monday.
6)That in all odd numbered years:
a)The children spend time with the Mother from 12pm Christmas Eve until 12pm Christmas Day;
b)The children spend time with the Father from 12pm Christmas Day until 12pm Boxing Day; and
c)The children spend time with the Mother from 10am on Good Friday until 6pm on Easter Monday.
7)That for Father’s Day, the children spend time with the Father from 6pm the preceding Saturday until 9am or the commencement of school on the Monday following Father’s Day.
8)That for Mother’s Day, the children spend time with the Mother from 6pm the preceding Saturday until 9am or the commencement of school on Monday following Mother’s Day.
9)That the children spend equal time with the Mother and the Father on the children’s birthdays, the Mother’s birthday, and the Father’s birthday at times to be agreed between the Mother and the Father and, failing agreement:
a)On the Father’s birthday if the children are not in the Father’s care, from after school or 3.30pm until 6.30pm on weekdays and if on a weekend from 10am until 6pm, with the children to spend the same time with the Mother if her birthday falls on a day when the children would otherwise be in the Father’s care; and
b)On the children’s birthdays, if on a school day and they are in the Mother’s care, they will spend time with the Father from 3.30pm or after school until 5.30pm and if on a weekend from 2pm until 6pm with the children to spend that same time with the Mother if the day falls on a day when the children would otherwise be in the Father’s care.
10)That if either parent is ill and/or unable to care for the children, the other parent is the primary contact to look after the children.
11)That each parent keep the other informed of their current residential address and each party provide the other with not less than seven days’ prior written notice of any proposed change of address or telephone number and provide such details to the other parent within 24 hours of any change.
12)That the Mother pay the Father’s costs of and incidental to this Application.
13)Such further or other orders as this Honourable Court deems appropriate.
Although not stated in the proposed orders contained in the Father’s Amended Initiating Application filed on 15 January 2016, I am satisfied that the Father supports an order requiring the parties to engage in family therapy with Dr B and to comply with all of her recommendations.
The Mother’s Proposal
The Mother’s proposed parenting orders are as follows:
1)That the Mother and Father have equal shared parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2009 for all matters excluding those matters listed in Order 2 below, for which the Mother shall have sole parental responsibility.
2)That the Mother have sole parental responsibility for decisions related to the children’s medical, optical and dental care and their enrolment in extracurricular activities.
3)That the children live with the Mother.
4)That the children spend time with the Father five nights a fortnight.
5)That the children spend time with the Father for one half of all end of term (short and long Summer) school holiday periods, being the first half in odd numbered years and the second half in even numbered years, with the school holidays commencing on the last day of school prior to the holidays.
6)That the children spend time with the Mother for one half of all end of term (short and long Summer) school holiday periods, being the second half in odd numbered years and the first half in even numbered years, with the school holidays commencing on the last day of school prior to the holidays.
7)That upon the Mother advising the Father in accordance with Orders 39 and/or 40 below that she is taking the children overseas, the holiday time as set out in Orders 5 and 6 above is suspended and the children shall spend time with the Mother in accordance with Orders 39 and/or 40 and the remainder of such holiday with the Father.
8)That in all even numbered years:
a)The children spend time with the Father from 9am on Good Friday until 12pm on Easter Sunday (this Order was amended by the Mother in cross-examination on 30 October 2017);
b)The children spend time with the Mother from 12pm on Easter Sunday until 6pm on Easter Monday;
c)The children spend time with the Father on Halloween, 31 October, from 9am on Halloween until 9am the following day on non-school days or from after school until 8pm on school days;
d)The children spend time with the Father from 12pm Christmas Eve until 12pm Christmas Day; and
e)The children spend time with the Mother from 12pm Christmas Day until 12pm Boxing Day.
9)That in all odd numbered years:
a)The children spend time with the Mother from 9am on Good Friday until 12pm on Easter Sunday;
b)The children spend time with the Father from 12pm on Easter Sunday until 6pm on Easter Monday;
c)The children spend time with the Mother on Halloween, 31 October, from 9am on Halloween until 9am the following day on non-school days or from after school until 8pm on school days;
d)The children spend time with the Mother from 12pm Christmas Eve until 12pm Christmas Day; and
e)The children spend time with the Father from 12pm Christmas Day until 12pm Boxing Day.
10)That the children spend time with the Mother from 9am on (holiday omitted), 1 July, until 9am the following day on non-school days or from after school until 8pm on school days.
11)That the children spend time with the Mother from 9am on (holiday omitted) on the second Monday in October, until 9am the following day on non-school days or from after school until 8pm on school days.
12)That the children shall spend time with the Father from 5pm on the day prior to Father’s Day until 6pm on Father’s Day.
13)That the children shall spend time with the Mother from 5pm on the day prior to Mother’s Day until 6pm on Mother’s Day.
14)That the children shall spend time with the Mother and Father on the children’s birthdays and the birthdays of any siblings or step-siblings, with the children to spend time with whichever parent they are not otherwise in the care of from the conclusion of school until 6:30pm on school days and from 2pm until 6pm on non-school days (including curriculum days and public holidays).
15)That Orders 3 and 4 above are suspended to give effect to the special occasion and holiday time set out in Orders 5-14 above and 39-40 below and shall then resume as though the cycle had not been interrupted.
16)That the children may otherwise spend time with the Mother and Father as agreed between the parties in writing.
17)That changeover shall take place at school when time commences or concludes with school and otherwise shall be at (omitted).
18)That the children shall communicate with the Mother:
a)Between 7:00pm to 7:30pm on Saturday and Monday evenings when the children are otherwise spending time with the Father during school terms; and
b)Between 7:00pm to 7:30pm on Saturday, Monday and Wednesday evenings during school holidays.
19)That the children shall communicate with the Father:
a)Between 7:30pm to 8pm on Saturday and Wednesday evenings when the children are otherwise spending time with the Mother during school terms; and
b)Between 7:30pm to 8pm on Saturday, Monday and Wednesday evenings during school holidays.
(The changes in time spent were consented to by the parties during the proceedings).
20)That the Mother shall forthwith provide X with a mobile phone which she and Y may use to communicate with the parent whose care they are not in whenever they wish, and the parties are restrained by injunction from interfering with the children’s use of the mobile phone to communicate with the other parent.
21)That the Mother and Father must ensure that the children or either of them have privacy when they are communicating with the other parent.
22)That the Father is restrained by injunction from:
a)Leaving the children unattended in a vehicle; and
b)Taking the children to work.
23)That the Mother shall engage the children in counselling with a suitable qualified counsellor as follows:
a)The Mother shall provide the Father with the counsellor’s name and contact information prior to the children commencing counselling;
b)The Father shall forthwith upon receiving notice of the details of the counsellor from the Mother, sign and do all things necessary to enable the children to commence counselling;
c)The Mother and Father may both instruct and liaise with the children’s counsellor;
d)Such counselling is to continue as recommended by the counsellor; and
e)Out of pocket expenses are to be met equally by the parties.
24)That the parties shall communicate about the children by SMS, except in an emergency, and shall each reply as soon as practicable to SMS messages from the other parent.
25)That the Mother shall have the sole choice of Dentists, Orthodontists, Optometrists and ongoing medical treatment practitioners for the children and shall notify the Father of the appointments. The Mother shall nominate designated medical practitioners and dentists that the children shall be taken to in an emergency, where practicable.
26)That in the event that the children require emergency medical attention while in the Father’s care, the Father is permitted to take the children to a doctor or related professional and make emergency decisions.
27)That if the children suffer a medical emergency, the party whose care they are in must inform the other party as soon as practicable of the details of the treating practitioner and/or body and the location of where the child/ren are and shall seek to consult and reach agreement on any treatment decisions.
28)That the parents shall both have access to all medical records.
29)That each parent must keep the other parent informed with respect to all medical and health issues regarding the children, and provide details of all medication required to be taken by the children and any required medical treatment or specific instructions about the children’s medical care from a treating practitioner.
30)That the Mother may select and enrol or discontinue the children’s or either of their enrolments in extracurricular activities without the agreement of the Father.
31)That the Father is restrained by injunction from enrolling the children in extracurricular activities.
32)That the Mother shall make a plan for the children’s extracurricular activities at the commencement of each school year, with each parent to ensure the children’s attendance at the activities during their time with them and the costs of the activities to be met equally by the parties.
33)That each party advise the other with any changes to their mobile telephone number within 48 hours of such change.
34)That both parties are at liberty to obtain all of the children’s school reports, circulars, memoranda, correspondence, photo order forms or information specifically or individually relating to the children’s education and sporting activities.
35)That the parties are both permitted to attend parent teacher interviews and meetings, school plays, sporting events and all other similar activities that parents are usually entitled to attend.
36)That within 30 days of the date of these Orders, the parties do all things necessary and sign all such forms to ensure that the children both hold a valid Australian passport until they turn 18.
37)That within 30 days of the date of these Orders, the parties do all things necessary and sign all such forms to ensure that the children both hold a valid (nationality omitted) passport until they both turn 18.
38)That the Father do all things necessary to sign an application and any documentation provided by the Mother to him and otherwise do all things necessary to obtain dual citizenship of Australia and (country omitted) for the children within 30 days of these Orders.
39)That the Mother be permitted to take the children to a country that is a signatory of the Hague Convention during any of the school holiday periods and for up to one week of school time, for the purpose of overseas travel, for up to four weeks, on one occasion each year provided:
a)That the Mother has provided the Father with a minimum of 60 days’ written notice including a full itinerary including copies of tickets and location of accommodation;
b)In the event that the Mother is taking the children overseas during the Father’s time, the Mother is to provide make-up time to the Father in the next school holiday period;
c)That the children do not miss spending time with the Father over Christmas for two consecutive years; and
d)As otherwise agreed in writing.
40)That the Mother and children may travel to (country omitted) for a period of up to three weeks in (omitted) 2019 to celebrate the Maternal Grandmother’s (omitted) birthday and the Maternal Grandfather’s (omitted) birthday provided:
a)That the Mother has provided the Father with a minimum of 60 days’ written notice including a full itinerary including copies of tickets and location of accommodation; and
b)In the event that the Mother is taking the children overseas during the Father’s time, the Mother is to provide make-up time to the Father in the next school holiday period.
41)That the Mother and Father are restrained by injunction from removing the children from the State of Victoria for the purposes of travelling interstate without first providing the other parent with seven days’ written notice including a full itinerary of the children’s travel arrangements, who the children will be staying with, contact addresses and phone numbers during such travel.
42)That in the event that either parent intends to take the children on a holiday or camping during the time that the children are spending time with them, that parent is to provide the other parent with details of where the children will be staying and when they will be expected to be away.
43)That the parties are restrained by injunction from:
a)Exposing the children, whether directly or indirectly, to family violence;
b)From abusing, belittling or denigrating the other party or a member of their family, household or friendship group, within the presence or hearing of the children; and
c)The Father is restrained by injunction from consuming alcohol to excess 24 hours prior to and during any time that the children are in his care.
44)That the Father is restrained by injunction from enrolling the children in extracurricular activities and/or taking the children to any non-emergency medical, dental or optical appointments except with the express prior written consent of the Mother and with such communication to be initiated by the Mother.
45)That the Father forthwith complete an alcohol assessment by a community organisation and provide evidence of his completion of the assessment and the outcome of the assessment to the Mother within seven days of completing the assessment.
46)That the Father must forthwith sign and do all things necessary to enrol in, attend and complete a Men’s Behaviour Change Program and must forward his certificate of completion to the Mother within seven days of finishing the program.
47)That the parties forthwith sign and do all things necessary to enrol in, attend and complete an intensive child inclusive parenting intervention, being the Family Life Parenting Orders Program offered by Family Life, (omitted), if available, or, if unavailable, as agreed between the parties in writing.
In closing submissions, Counsel for the Father said that the Father agreed to the following proposed orders of the Mother:
a)Orders 10 and 11 regarding (holiday omitted) and (holiday omitted), provided they fall within the time the children spend with the Mother on holidays or weekends;
b)Order 22, provided the restraint applies to both parents;
c)Order 26, provided it applies to both parents; and
d)Order 46, without admission of the necessity to undertake the program.
Evidence
I shall commence the recitation of the evidence before the Court by setting out the independent expert evidence of Dr O, who prepared two Family Reports for the purposes of the proceedings, and Dr B, whom the parties and children attended upon for family therapy from the end of 2016 until shortly before the first day of hearing.
Dr O
The first Family Report prepared by Dr O is dated 20 January 2016 (“the First Family Report”) and was prepared following an order by the Court on 13 April 2015. The second Family Report prepared by Dr O is dated 14 November 2016 (Annexure O 1 to the affidavit of Dr O filed on 23 November 2016) (“the Second Family Report”) and was prepared at the mutual request of the parties.
Dr B prepared a written report at the request of the Father’s solicitors dated 8 August 2017 (Annexure C to the affidavit of Dr B filed on 8 August 2017) (“the Family Therapy Report”).
In the First Family Report, Dr O commenced her evaluation by noting the parents highly divergent accounts of their relationship and alleged behaviours (First Family Report at [91]). This is an apt observation in relation to much of the evidence before the Court.
Dr O continued her assessment as follows (First Family Report at [92]-[109]):
92) On one hand X and Y appear to be performing and functioning well and within their expected developmental range. Observations and reports suggest they have strong attachment and bond with both Mr Channing and Ms Snow. On the other hand there is evidence of the impact that the discord between the parents has had on the children. Both present as reserved and shy, why this may be to a degree inherent personality and temperament, they also present as guarded and fearful of talking about the family unit. Both children displayed apparent discomfort about saying anything negative or critical about one parent or the other. X in particular provided a completely sanitised and clearly untruthful account of family interactions. Both children appear fearful of their parents coming into contact with each other, and they avoid talking about one parent to the other. Their concern and hypervigilance provides evidence of their exposure to parental discord and the negative impact of such. The children are likely to have been exposed to some of this verbal violence in the past and increasingly exposed to it since the parties have separated.
93) It was noted throughout the interview with Ms Snow that she appeared to be significantly distressed by the past and present behaviour of Mr Channing. While some distress was understandable, her distress appeared to be disproportionate to the frustration she reported as a result of the difficulties she has faced since the demise of the relationship. Her greater emotional response toward Mr Channing could also be considered incongruent given the reasonable time lapse since separation, and that she reportedly has disengaged from the relationship with Mr Channing and established a new intimate relationship.
94) While it is beyond the mandate of the Family Assessment to conduct a diagnostic or clinical assessment with the parties, the extent of Ms Snow’s emotional reactiveness would usually lead the writer to call into question the possibility of Adjustment Disorder. A person with an adjustment disorder/stress response syndrome develops emotional and/or behavioural symptoms as a reaction to a stressful event such as relationship breakdown. The reaction to the stressor is greater than what is typical or expected for the situation or event. Typically however, symptoms generally begin within three months of the event and rarely last for longer than six months. Having been nearly two years since separation one could expect greater emotional stability and emotional distance from the relationship issues with Mr Channing unless, of course, there is a more significant psychological problem experienced by Ms Snow, or that her account of Mr Channing’s efforts for dominance and control continue to be experienced as a stressor by Ms Snow. Further assessment many be advantageous however, Ms Snow reports attending psychological counselling and the issues while noteworthy do not appear to impact upon her capacity to directly care for the children.
95) Without question it is in the children’s best interests to have a significant relationship with both parents. To facilitate this relationship in a child focused manner requires the parties to develop a form of communication that enables the parties to remain child focused and make decisions in the best interests of the children and not based on anger, hostility and one-upmanship between the parties. It does appear evident, given that in the year since separation there has been no progress, resolution of the issues and improved communication are unlikely to occur without external assistance and intervention.
96) While not discounting the seriousness of the issues raised by Ms Snow, it does appear that Mr Channing has a propensity for volatile reactions toward Ms Snow, and in turn, on occasion she has responded in an equally heightened state. Ultimately, the impact of the parents’ discord is highly likely to have had an impact on X and Y, and continues to be distressing. The presentation of the children during interview suggests this is the case, and their reported fear of their parents coming into contact further supports the psychological and relationship damage already done.
97) It is apparent that both Mr Channing and Ms Snow love the children and want to be equally and directly involved in parenting. Accordingly, it is clear that the children are likely to benefit, both now and in the future, from having a meaningful level of relationship with both of their parents.
98) Shared parental responsibility would in most instances be considered in the children’s best interests. Practically, shared parental responsibility requires collaboration and cooperation between the parties. It appears that the current circumstances and communication between the parties call into question the capacity for shared parental responsibility. Notably however, the parents currently retain shared parental responsibilities, and it would appear a backward step to make alternative recommendations. However, given the history and current situation between the parents, the manner in which shared parental responsibility could be completely and effectively implemented is a concern for the writer. In particular, Ms Snow’s emotional stability would appear to be at ongoing risk of being undermined in situations requiring ongoing contact and negotiation with Mr Channing. Equally, should the Court determine Ms Snow’s assertions about Mr Channing’s attempts to control are considered truthful, there is potential risk in Mr Channing using shared parental responsibility to continue to assert undue control and pressure upon Ms Snow. The writer is of the opinion that shared parental responsibility with some necessary exclusions may be advantageous. Recommendations reflect this view.
99) Clearly, it remains imperative that both Ms Snow and Mr Channing have capacity to have input into the children’s lives. Mr Channing appears to have demonstrated his commitment to focus and provide input in the children’s care, welfare and development since the demise of the relationship with Ms Snow in early 2014.
100) While it remains the domain of the Honourable Court to make determination of the veracity of the accounts of the parties it is noted that there has been allegation that the children have either been subjected to violence, or exposed to family violence. Since the parents have separated, the animosity between them continues and the children have witnessed the discord.
101) The proposals made by Mr Channing for the children to spend time with him would ensure that the children are able to continue to have a meaningful level of relationship and indeed consolidate and extend the relationship. The extent of time spent with X and Y requested by Mr Channing does not compromise the primary care relationship with Ms Snow.
102) Notwithstanding the allegations of concerning behaviour by Mr Channing in the past, I have no evidence to suggest that Mr Channing currently represents a risk to the children when spending time with them. It would appear that the best way of protecting the children is to ensure that the parents have a clear expectation of the access arrangements ensuring that X and Y continue to have the benefit of a meaningful relationship with each of their parents.
103) Both parties assert that they support and encourage the relationship with the other parent. Observations during interview would suggest this is not the case. The children are clearly aware of the conflict between the parties and fearful of them coming into contact, which clearly suggests there are ongoing negative interactions and discord between their parents.
104) Ms Snow presents as a loving and concerned parent who is working hard to support her family. Again, while it remains the domain of the Honourable Court to determine the veracity of the parties’ accounts it is clear that Ms Snow has, and continues to have, a heightened emotional reactiveness to related interactions with Mr Channing. To some extent from a psychological perspective this goes some way to support her historical account of the relationship, which in its simplest form must be reflective of, at the very least, perception of some distressing experience. Understandably however, Ms Snow appears somewhat lacking in insight regarding this, and this does undermine her capacity to effectively facilitate the children’s relationship with Mr Channing.
105) Mr Channing attempted to present a balanced, dispassionate and non-judgemental attitude towards Ms Snow. He denied allegations of excessive drinking and anger management problems. Superficially he presented a believable and cogent account of the history. However, on the other hand upon examination he says he was shocked and unprepared for separation, yet alleges Ms Snow was drinking and going out without him. His statements that this was to the extent that the children “didn’t know her” would appear to exaggerate and misrepresent the situation. Equally, his proposal after separation appears ill informed and strange behaviour given the circumstances. In addition X’s presentation during interview strongly suggests that she had been given guidance and possibly direction as to what to say. Given the content of her assertions it would appear more likely by Mr Channing. As stated previously it remains the veracity of the Honourable Court to test the evidence and veracity of the parties’ accounts, however it was the writer’s opinion that Mr Channing was not as unwitting and innocent as he attempted to portray during interview. In addition Mr Channing’s propensity to externalise all blame to Ms Snow is concerning.
106) Mr Channing does appear inflexible in his views related to certain topics. Specifically, he adamantly rejects requests for the children to holiday in (country omitted). He appeared unable to perceive any benefit to the children having such experience and despite the existing conventions between countries and suggestions of safeguards Ms Snow could put in place, he flatly rejected the discussion.
107) There are no reported practical issues regarding location of the parties’ residences, travel distances, or the like at this time. Mr Channing is living close to the children’s school and within 10 minutes drive to Ms Snow’s home. Both parties talked of remaining in their respective residences for the foreseeable future or remaining in the same geographical area if they were to move. Certainly, Ms Snow reported no intent or desire to relocate to (country omitted), describing Australia as her home where she anticipated remaining long term.
108) Each of the children expressed a wish to have contact with both parents. Y was more vocal about the impact of the verbal abuse between the parents, but both children appeared to want to describe their parents equally in a positive light. The children are however, limited developmentally in their ability to express an opinion. Equally, the hostility and pressure that appears to be experienced by these two children is such that the writer is reticent to recommend weight being placed on the expressed wishes of the children.
109) The current parenting plan appears to be implemented satisfactorily. It appears each parent has the capacity to meet the children’s daily needs when in their care. Any consideration of shared care of the nature of 50:50 arrangement as proposed by Mr Channing could be considered at such time that the parties were able to demonstrate the capacity to communicate without animosity or involve the children in their discord.
Dr O recommended that the parents continue shared parental responsibility for the children for all matters excluding medical and dental treatment to avoid the discord which has arisen out of the children attending different medical treaters in the same specialty.
Dr O recommended the parties continue the shared care arrangement under which the children were spending nine days with the Mother and five days with the Father. Dr O also recommended that the Mother be permitted to engage the children in counselling, with the counselling to be provided in circumstances where the counsellor is equally informed by the Mother and in consultation with the Father. Dr O further recommended that the children be provided with a mobile phone for the purpose of communication with each parent when the children are in the care of the other parent.
In the Second Family Report, Dr O observed that the parents’ highly divergent accounts of their relationship and alleged behaviours continued. Dr O stated that (Second Family Report at [25]):
25) Observations at time of previous assessment, Mr Channing was noted to engage with the children with familiarity and warmth, reacting appropriately to their needs. They did not display any fear or hesitation in his presence. There was no change to observed behaviour in the current assessment.
Dr O reported that the Mother has continued to feel disrespected by the Father since separation and identified the Mother’s issues with the Father to be as follows (Second Family Report at [37]):
37) …
i) Exacting in times for handover, complaining if she is even a few minutes late due to traffic however, thinks nothing of keeping children in the car past handover time if he desires to do so.
ii) Unilaterally takes the children to medical and dental appointments and then refuses to provide any information about medical and dental appointments or what is happening with the children, but then accuses Ms Snow of neglecting their health care.
iii) He has enrolled the children in extracurricular activities without discussion with Ms Snow. He refuses to permit the children to take (hobby omitted) uniforms with them despite being needed during the weekend with Ms Snow.
I note that the above issues identified by Dr O reflect the following issues raised by both parents in these proceedings:
a)the conduct of the other parent at changeover and the negative impact on the children;
b)unilateral decisions being made about medical and dental appointments for the children and failure to provide the other parent with information about those appointments; and
c)unilateral enrolment of the children in various extracurricular activities and the lack of cooperation in providing the necessary uniform(s) for the children to attend those activities.
Dr O reported that the Mother said that she was not opposed to a more equal shared care arrangement, but said that such an arrangement would have to be contingent upon the parties establishing effective communication and cooperation (Second Family Report at [40]).
In relation to the children’s views expressed to Dr O during interview, it is clear that X’s initial view that there should be “equal time” was one which reflected, and was likely prompted by, views expressed by a parental figure (Second Family Report at [49]-[53]). X ultimately stated that her wish was for her parents to be nice to each other and that the time she spent with each of them stayed the same (Second Family Report at [53]). Y expressed a similar view, saying that he wished his parents would get along better and that he was content with the current arrangements (Second Family Report at [57]-[58]).
In her evaluation, Dr O made it clear that whilst she had no concerns regarding the Father’s parenting of the children, she did have serious concerns about the Father’s behaviour towards the Mother. To be fair to Dr O, part of her opinion was formed upon the basis of SMS exchanges between the parents provided to her by the Mother. As the evidence in these proceedings has revealed, however, they did not represent a complete picture of the SMS exchange between the parties. For example, during the hearing the Court had before it SMS messages sent by the Mother to the Father which could be said to be equally as imperious and denigrating of the Father. Dr O understandably expressed frustration about Y’s report to her that he was looking forward to participating in (hobby omitted), but that he was unable to do so because his mother could not afford another (hobby omitted) uniform and his father had not provided the children with their current uniforms on a particular week that they were in the Mother’s care. On the evidence before the Court, I am satisfied that the parents have behaved extremely poorly at times, however, I am not satisfied that the Father bears sole responsibility for this, as the Mother has claimed.
In order to provide a comprehensive exposure of Dr O's Second Family Report, I have extracted her evaluation in full below (Second Family Report at [60]-[80]):
60) It is evident in the updated assessment that despite a reasonable passage of time there has been no improvement in the interactions between the parties. There are ongoing concerns about unilateral decision making, lack of consultation and lack of respect in interactions.
61) Ironically, the examples of these behaviours made by each party are almost identical to the other party. For example, both Mr Channing and Ms Snow accuse each other of failing to maintain X and Y’s dental care; taking the children to another dentist and refusing to provide practitioner details. Both accuse the other of failing to allow the children to talk to the other parent when in the care of the other. It is noted that Ms Snow provided examples of text messages where she had made efforts to provide information to Mr Channing somewhat conflicting his report. Mr Channing did not provide to the writer any evidence of his attempts to communicate with Ms Snow.
62) It is noted that Mr Channing’s text messages, albeit a small number in Affidavit attachment, are in a distinctly imperious tone and certainly at odds with his assertion that he is “always nice”. Mr Channing makes comment about “my children” and repeats a demand ignoring and not responding to Ms Snow’s questions culminating in a text that says “I told you 3 times to make sure…”.
63) As noted above Mr Channing accused Ms Snow of never giving him details of medical or dental appointments. Despite this assertion it is noted Ms Snow provided text message inviting Mr Channing to dental appointment providing date and location.
64) X and Y continue to perform and function well and within their expected developmental ranges. Observations similarly continue to suggest they have strong attachment and bond with both Mr Channing and Ms Snow. On the other hand, interview with X and Y suggests ongoing evidence of the impact that the discord between the parents has had on the children. I am of the view that this has been exacerbated since the Family Assessment Report. Consistent with previous assessment initially they appeared guarded and fearful of talking about the family unit and discomfort about saying anything negative or critical about one parent or the other. However, unlike previous assessment they were both more willing to express concerns. In previous assessment X was reported to have “provided a completely sanitised and clearly untruthful account of family interact ions”.
65) Ultimately, each parent presents as capable of caring for the children and the children present as high functioning and socially responsive, so no matter what is happening in the parental relationship, in the main the children continue to be resilient and not overly impacted.
66) More importantly however, without a doubt both parents are intolerant of the other and quick to temper when they talk. The writer is left with the feeling that Ms Snow is the quicker to become emotional and consequently, Mr Channing does not have to work too hard in setting up situations in a manner that will undoubtabley cause upset. His assertion that he is “always nice” and never responds, in the writer’s opinion, is an inaccurate representation of interactions with both parties being responsible for the appalling state of communication.
67) The writer continues to be concerned about Ms Snow’s emotional reactiveness. As previously suggested this could be result of Adjustment Disorder with emotional and/or behavioural symptoms being greater than what is typical or expected for the situation or event. As previously reported however, the time since separation and her account during the current assessment suggests Ms Snow’s response is a more direct result of her experience of interactions with Mr Channing, feeling like ongoing efforts for dominance and control, which act as a stressor by Ms Snow. As stated previously however, the writer believes Mr Channing is well aware of this dynamic and in part innately continues to seek control, but also seeks to capitalise on Ms Snow’s emotionality.
68) Without question it is in the children’s best interests to have a significant relationship with both parents. As stated at the time of previous assessment to facilitate this relationship in a child focused manner requires the parties to develop a form of communication. This would enable the parties to remain child focused and make decisions in the best interests of the children and not based on anger, hostility and one-upmanship between the parties. Yet another year on there has still been no progress. Consequently, I remain of the opinion that resolution of the issues and improved communication are unlikely to occur without external assistance and intervention. Further, I am of the opinion that in light of this situation any progress in time or change to the existing Parenting Orders would be ill informed. Any progress needs to occur only when there is evidence that the parties are better able to parent collaboratively and communicate effectively in a child focused manner. Recommendations reflect this view.
69) I had previously stated and remain concerned that the parents’ discord is having an impact on X and Y, and continues to be distressing. The presentation of the children during interview suggests this is the case and their reported fear of their parents coming into contact further supports the psychological and relationship damage already done.
70) I remain of the opinion that Mr Channing and Ms Snow love the children and want to be equally and directly involved in parenting. It seems that separate to each other they are both responsive, caring and capable parents. Accordingly, it is clear that the children are likely to benefit, both now and in the future, from having a meaningful level of relationship with both of their parents. However, this is only if both parents are able to put relationship issues aside and parent the children in a child focused manner.
71) Shared parental responsibility would in most instances be considered in the children’s best interests. Practically, shared parental responsibility requires collaboration and cooperation between the parties. It appears that the current circumstances and communication between the parties call into question the capacity for shared parental responsibility.
72) The parents currently retain shared parental responsibilities, and it would appear a backward step to make alternative recommendations however, the writer remains concerned about the inability of the parents to co-parent. This has already resulted in multiple unnecessary dental appointments. The writer is of the opinion that shared parental responsibility with some necessary exclusions may be advantageous. Recommendations reflect this view.
73) While it remains the domain of the Honourable Court to make determination of the veracity of the accounts of the parties, it is noted that there has been allegation that the children have either been subjected to violence, or exposed to family violence. Since the parents have separated, the animosity between them continues and the children have witnessed the discord. Unfortunately, in the course of Family Assessment, nearly twelve months later, nothing has changed during Family Assessment update.
74) Obviously, this is of great concern. The children’s ongoing exposure to hostility and tension between the parties and exposure to Ms Snow’s reactions to Mr Channing’s perceived lack of respect is extremely damaging to the psychological wellbeing of X and Y.
75) The recommendations in the Family Assessment Report in January 2016 were made in anticipation that the children would be engaged in counselling with the intent of both parents being equally engaged. This was with intent to gain clarity as to the real source of communication difficulties; to better determine how increased time could be effectively facilitated and optimism that both parties or whomever was the primary source of difficulty would gain insight into the negative impact of the parental behaviour on Y and X. Unfortunately, as noted there has been no improvement, rather ongoing demise in the capacity for shared parenting. As such the previous recommendations are strongly reiterated. I am of the opinion that it is highly detrimental for any change lo the existing Parenting Orders or plans for increased time with Mr Channing, when basic communication about the children’s needs is unable to occur and the children are placed in situations such as having to miss (hobby omitted) because of some pettiness over Mr Channing refusing to permit the children to take their uniforms, because he paid for the uniform.
76) As noted in the previous Family Assessment report the existing Parenting Orders permit Mr Channing and the children to spend time together and ensure that the children are able to continue to have a meaningful level of relationship with him. The amount of time currently spent by X and Y with Mr Channing does not compromise his relationship with the children or the primary care relationship with Ms Snow.
77) I continue to hold the opinion that Mr Channing does not currently represent a direct risk to the children when spending time with them. It would appear that the best way of protecting the children is to ensure that the parents have a clear expectation of the access arrangements ensuring that X and Y continue to have the benefit of a meaningful relationship with each of their parents.
78) I do however, hold increasing concern that Mr Channing presents himself in an overly positive manner, suggesting that he is an engaged and exemplary father. In reality, l am increasingly of the view that while his direct interactions with the children are not at fault, he has not acted in an exemplary manner in co-parenting with Ms Snow and does act in an unnecessarily inflexible and disrespectful manner towards Ms Snow. ln doing so Mr Channing destabilises and demoralises Ms Snow’s parenting and personal stability and therefore indirectly undermines the best interests of X and Y.
79) Both parties consistently assert that they support and encourage the relationship with the other parent. Observations during interview would suggest this is not the case. The children are clearly aware of the conflict between the parties and fearful of them coming into contact, which clearly suggests there is ongoing negative interactions and discord between their parents.
80) It was reported to the writer that the purpose for updated assessment report was that the previous report would be outdated due to passage of time. While time has passed, regretfully nothing has improved and certainly not to an extent that would justify change to the original recommendations. As previously noted the current parenting plan appears to be implemented satisfactorily albeit with unsatisfactory communication and collaboration between the parties. It appears each parent has the capacity to meet the children’s daily needs when in their care. Any consideration of shared care of the nature of 50:50 arrangement as proposed by Mr Channing could be considered at such time that the parties were able to demonstrate the capacity to communicate without animosity or involve the children in their discord.
Dr O recommended equal shared parental responsibility for the children, save for medical intervention and the selection and enrolment into extracurricular activities. Dr O recommended a continuation of the 9/5 arrangement for the children, that the Father engage in a Men’s Behaviour Change Program and that the Mother engage the children in counselling. Dr O also recommended that the Mother be permitted to travel overseas with the children for a period of four weeks.
Prior to giving evidence at the hearing, Dr O was provided with a copy of the Family Therapy Report prepared by Dr B. Dr O confirmed that she had read the Report.
In cross-examination by Counsel for the Mother, Dr O gave the following evidence:
a)she would not give weight to any of the views expressed by the children during her interviews with them. Dr O said that, in her opinion, X’s views that she wanted more time with her father were likely influenced by the Father. On the other hand, Dr O opined that X’s view that she did not want any change to the current arrangements reflected X’s desire not to upset her parents any further and to avoid conflict;
b)with respect to Dr B’s evidence that the children expressed to Dr B during a therapeutic session in the presence of herself and the parents a desire for an equal time living arrangement, Dr O observed that since her interviews with the children and the parents they had had the benefit of participating in family therapy. Dr O noted that the evidence of Dr B was that there had been an improvement in communication between the parents. When put to Dr O during cross-examination that the Mother does not feel that any improvement in communication between the parties that may be apparent in the therapy sessions continues outside of the therapy, Dr O said that this would be a concern. However, Dr O said that her reading of Dr B’s report was that Dr B was aware of this issue and had dealt with it as part of her ongoing assistance to the parties in counselling;
c)with respect to Dr B’s evidence that the parties were not yet at a stage where they had fully consolidated the strategies learnt and agreed upon in therapy sessions, outside of therapy sessions, Dr O said that this did not necessarily raise concerns about changing the living arrangements of the children, provided that the parties continued to engage in ongoing counselling and therapeutic assistance;
d)she agreed that an argument between the parents which occurred in the presence of X when X was in hospital was consistent with the kind of conflict that Dr O had described in both of her Family Reports;
e)she agreed that an SMS message from the Father to the Mother in April 2017 was “imperious and disrespectful” in tone. Dr O observed, however, that even though that message was sent after the parties had engaged in family therapy, it would be unrealistic to expect the dynamics between the parties to change so quickly;
f)she observed that the Father’s actions in providing mobile phones for the children to be kept at school and his instructions that they only be used to call him defeated the purpose of Dr O’s recommendation in her Family Report that the children be provided with a mobile phone. Dr O was of the view that the Father’s actions in this regard were “just nonsense”;
g)she said that the reason she recommended in her Family Reports that there should be some “exclusions” to the parents having equal shared parental responsibility was because of the conflict between the parents about who takes who to the dentist and general medical practitioners. Dr O said that ultimately this conflict impacts on the children and therefore believed that only one of the parents should be given sole parental responsibility so as to remove the impact of the parents’ discord on the children. When asked why she nominated the Mother, Dr O said this was because the children spent the greatest time with the Mother and providing the Mother with sole responsibility in relation to these issues would give her greater control and would help the dynamics in terms of her interactions with the Father. Dr O clarified that by “exclusions” she was referring to the suggestion that only one party take control of making appointments for the children and so forth with the obligation to communicate this information to the other party;
h)when asked whether she believes that the Mother would be in a position to communicate with the Father about appointments, the Mother had made for the children with medical and dental treaters, Dr O said that she believed it would be hard for the Mother and that this was an issue that would need to be dealt with in ongoing family therapy;
i)Dr O opined that it was inappropriate for the children to determine which extracurricular activity they should attend because the competitive behaviour of the parents places the children in a difficult position. Dr O further opined that the decision as to the extracurricular activity should appropriately be identified and considered in the family therapy sessions;
j)when asked whether she believed the parents were able to implement an equal time living arrangement in a child-focused manner, Dr O responded that she felt conflicted as Dr B's Family Therapy Report suggested that there have been improvements in the parties’ communication, however, Dr O had also been informed by Counsel that there are recent affidavits which suggest that maybe it has not. Dr O said that she believed this was a question better put to Dr B. Dr O said that she did not think that the current state of the relationship between the parents precluded the implementation of an equal time living arrangement. Dr O noted that such an arrangement may actually be of benefit to the children who are continually exposed to conflict at handover where changeover occurs at school. Dr O also said that there would need to be a strategy in place for the parents to manage the children’s extracurricular activities from week-to-week if an equal time living arrangement is introduced.
In response to questions from the Court, Dr O gave the following evidence:
a)she would recommend ongoing therapeutic counselling for the parties, whether or not the Court decided that the living arrangements for the children should be changed;
b)she believes that both parents can behave in an inappropriate and reactive way. Dr O referred to her observations in her Family Reports that the Mother has a tendency to become emotional very quickly and that it does not take much to upset and destabilise her. Dr O said that, in her opinion, part of the Father’s personality was being directive and controlling which has the effect of destabilising the Mother. Dr O opined that, as a consequence, a cyclic kind of dynamic arises where the Father, not necessarily overtly or with malicious intention, can behave in a way that “rattles the Mother’s cage” and the Mother then responds in an emotional and hypersensitive manner. The result is that both parents end up in a constant cycle of conflict.
In response to questions from Counsel for the Father, Dr O gave the following evidence:
a)in the First Family Report she was not necessarily accepting the interpretation of the Father’s behaviour as reported to her by the Mother;
b)she accepted the evidence put by Counsel for the Father that after the First Family Report in which Dr O recommended the parties engage in counselling, the Father, through his solicitors, requested on numerous occasions that the Mother commence engaging in counselling but that the Mother failed to respond to these approaches. Dr O acknowledged that this was of concern. However, Dr O said that it was positive, even if it followed an order from the Court, that the Mother commenced engaging in counselling through family therapy with Dr B;
c)she clarified that, in the context of referring to the Mother’s heightened emotional reactivity, Dr O’s statement that “To some extent from a psychological perspective this goes some way to support her historical account of the relationship…” (First Family Report at [104]) was not a statement that she accepted the Mother’s version of the dynamics in the parents’ relationship, namely, that the Father engaged in controlling behaviour towards the Mother. Dr O stated that the opinion she intended to convey was that, because of the Mother’s history and her style of reaction, the Mother may well have perceived things in the relationship a particular way, which might not have been perceived the same way by others. Dr O’s opinion was therefore that the Mother’s heightened emotional response to things may well have exacerbated the conflict between the parties;
d)in the First Family Report, she formed the view that, given the period since separation was two years, the continued extreme nature of the Mother’s emotional responses to the Father was a concern. Dr O clarified that this had nothing to do with the Father and that what she was conveying was that the Mother seemed to still be invested in her relationship with the Father despite having moved on with another relationship at that time. Thus, it seemed to Dr O that there was something else underlying this dynamic between the parties in addition to the Mother’s experiences with the Father. Dr O said that there is a significant amount of evidence to suggest that the Mother reacts in an emotionally heightened manner for which the Father cannot always be blamed;
e)she refuted the suggestion put by Counsel for the Father that she had expressed the view in her Family Reports that, because of the Mother’s emotional reactivity to the Father, the Father’s time with the children and the Mother’s engagement with the Father should be restricted so that the Mother’s parenting capacity was not compromised;
f)she emphasised that her observations of the parties’ dynamic in their ongoing relationship and the subsequent impact on the Mother’s emotional well-being in no way speaks to the balance of time with the children or shared parental responsibility, but speaks to the need for the Mother to engage in psychological counselling;
g)she said that if the evidence revealed that the Father was not consuming alcohol excessively but the Mother persisted with this allegation, this would support the concern Dr O had raised in both Family Reports about the Mother’s intensity of focus on the parties’ relationship post-separation, particularly in the context where the parties had been separated for some time and the Mother had repartnered;
h)she opined that even if the communication between the parties outside of the therapeutic sessions showed little or no progress, as asserted by the Mother, this should not be used as a basis for a conclusion that the best interests of the children would not be served by an equal time living arrangement. Dr O said that there were clearly risks involved if the conflict between the parties continued unabated, however, her opinion was that this risk could be minimised by the parties continuing to engage in family therapy with Dr B assisting the parties with communication and guidance.
Dr O's Family Reports were prepared during 2016 and before the family had commenced therapeutic counselling. Dr O made it clear that her central recommendation, which she saw as being in the best interests of the children, was the engagement of the parties in counselling. This process did not take place until an order was made by the Court for the parties to attend upon Dr B for family therapy. Dr O gave evidence around one year after she prepared the Second Family Report, with the benefit of perusing Dr B's Family Therapy Report and having been given the benefit of some of the evidence provided to the Court by the parties.
Having considered Dr O’s oral evidence arising out of cross-examination, I am satisfied her opinion is, in summary, that:
a)the continuing nature of the Mother’s emotional response to the Father likely reflects an undiagnosed mental health issue and that this issue exists beyond the Mother’s experience of the Father during the relationship and in the post-separation period;
b)the dynamic of the parents’ relationship both during the relationship and after separation reflects the Mother’s hypersensitivity to the Father’s directive and controlling personality. However, this did not necessarily support a conclusion that the Mother’s perception of the Father as controlling and abusive was a true reflection of the dynamic of the parties’ relationship;
c)the ongoing dynamic between the parents reinforces the need for ongoing family therapy;
d)the Mother’s continued heightened sensitivity to the Father and its impact on her emotional stability is somewhat unexplained and is not a determinative consideration about the appropriate balance in the future living arrangements for the children and the sharing of parental responsibility;
e)the current state of the parents’ relationship did not preclude an equal time living arrangement, provided the parties continued to engage in family therapy and adopted strategies to avoid face-to-face contact at changeover;
f)irrespective of the orders made by the Court, continued family therapy was in the children’s best interests. Dr O opined that given the dynamic of the parties’ relationship, the expectation about the pace at which communication between them would improve needed to be realistic. Consequently, Dr O was of the view that progress and improvement in communication required ongoing family therapy for these parents;
g)her recommendation that the Mother have sole responsibility for decisions about the extracurricular activities the children should be enrolled in and the medical and dental treaters the children should attend was predicated on Dr O’s then view that the current 9/5 living arrangement should continue;
h)Dr O opined that given Dr B’s more recent involvement with the family, Dr B was better placed to provide the Court with opinions regarding the future living arrangements for the children.
Dr B
Dr B prepared the Family Therapy Report at the request of the Father’s solicitors (Annexure B to the affidavit of Dr B filed on 8 August 2017 at 8-9). It was requested that Dr B’s report address the following issues (Annexure B to the affidavit of Dr B filed on 8 August 2017 at 9):
1. Your observations of our client’s relationship with the children.
2. Your views on our client’s application for equal shared care of the children.
3. Your recommendations as to the parenting arrangements for the children.
Dr B gave oral evidence at the hearing that at the time she prepared the Family Therapy Report there had been eight sessions with the family, two of which were intake sessions conducted in December 2016 and six sessions which were therapeutic sessions. Two of the therapeutic sessions were conducted with both the children and the parents. The therapeutic sessions occurred during the period from February to July 2017. The Father attended two sessions alone with Dr B. Dr B said that she provided these individual sessions for the Father at his request to assist him with his parenting input. Dr B said that in the joint sessions she met with the parents both individually and together.
Dr B's Family Therapy Report traverses various issues. Under the heading “The parents’ relationship”, Dr B says the following (Family Therapy Report at [13]-[17]):
13. As individuals, Mr Channing and Ms Snow present as mature and capable. They particularly present as competent in their parenting of X and Y. Both Mr Channing and Ms Snow interacted warmly and appropriately with the children in the joint family sessions and over the course of the therapy, they discussed the children’s needs and development with thoughtfulness and attunement to the age-appropriate issues for each child.
14. The focus of the family therapy was to engage with Mr Channing and Ms Snow in improving their parenting relationship. While at times Mr Channing and Ms Snow conveyed mistrust of each other’s motivation and frustration about the communication, in the joint sessions, they were responsive to my intervention and resolved a number of issues about the children, such as extracurricular activities and logistics for managing such issues as clothing.
15. Nevertheless when they returned for follow up sessions, they would report that the other had not continued with the positive changes and so issues were again considered and resolved again. In this dynamic, it is apparent that Mr Channing and Ms Snow can make the positive changes required, but at this point in their parenting relationship, they need the intervention of a professional such as a family therapist to ensure that the changes are consolidated.
16. Mr Channing was particularly responsive to feedback and he managed to adjust some key issues of his communication approach with Ms Snow. Mr Channing has the capacity to manage long-term changes in this area.
17. Ms Snow was also responsive in the sessions, particularly in relation to the impact on the children of the ongoing communication difficulties with Mr Channing. She could easily become reactive, but with support, she could also manage appropriate communication with Mr Channing. It was notable that when Mr Channing and Ms Snow were together with the children, they were focussed on X and Y and conveyed a calm and friendly demeanour towards each other.
Dr B then proceeds to provide an example of what she describes as ongoing sensitivity in communication between the parties, that being the introduction of the Father to the Mother’s partner, Mr T. Dr B noted that the children had expressed a view that they would like their father to meet Mr T. She notes that the parties had disparate views about why the Father had not yet formally met Mr T. Dr B noted that, nevertheless, the parents had agreed in a family therapy session that it should be the adults to initiate the introduction of any new partners to the other party.
Dr B made the following conclusion (Family Therapy Report at [21]):
21. In the course of the family therapy, Mr Channing and Ms Snow have maintained commitment to address their relationship. They have particularly demonstrated responsiveness to my intervention, despite the ongoing reactivity as noted above. If they elect to continue, I consider that Mr Channing and Ms Snow would benefit from further input.
Under the heading “The children’s attachment relationships”, Dr B stated as follows (Family Therapy Report at [23]-[24]):
23. In summary, the children demonstrate secure attachments to both parents. They have positive self- images and while they are aware that Mr Channing and Ms Snow do not ‘like each other’, they nevertheless present as able to manage this level of negativity. For example, X wrote ‘Mum and Dad don’t hate each other, but they don’t love each other’ and Y wrote, ‘they kind of argue …’
24. X and Y said that they would like to spend more time with their father. In the family session on 3rd May 2017, X and Y said that they would like to spend equal time with their parents. This statement was spontaneous when they were asked if there was anything that they would like to say to their parents. Mr Channing and Ms Snow were appropriately responsive, but remained noncommittal.
In response to the specific questions the Father’s solicitors requested be addressed in the Family Therapy Report, Dr B stated that the Father presents as a competent and facilitative parent, that the children demonstrated a secure attachment to him and that she would support the Father’s wish for equal shared care.
Addressing the request for recommendations about future parenting arrangements for the children, Dr B noted that “…[the parents’] still strained communication continues to potentiate anxiety for the children about transitions” (Family Therapy Report at [31]) and then said the following (Family Therapy Report at [32]-[34]):
32. X and Y would benefit from longer periods of time in Mr Channing’s care so that he can be as actively involved in as many areas of their lives as possible. They would also benefit from the opportunity of more down time in Mr Channing’s care, not because of any deficits in Ms Snow’s care, but because of Mr Channing’s capacity to provide such nurturing.
33. It is beyond the brief of the family therapy to recommend specific living arrangements for X and Y, save to note that on the basis of my observations gained during some seven months of engagement with this family, Mr Channing does present as a competent parent who could provide facilitative caregiving of X and Y for extended periods of time.
34. Mr Channing and Ms Snow’s relationship is still strained, but they have demonstrated over seven months that they can be responsive to therapeutic interventions and it is likely that changes they have made have continued to protect their children’s development and welfare. If Mr Channing and Ms Snow elect to continue with family therapy, specific goals around communication would need to be established.
As the present living arrangements are a 9/5 arrangement, an increase in the children’s time with their father either results in an 8/6 or 7/7 arrangement.
Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
The children have a close and affectionate relationship with both parents.
I have no doubt the children have a loving relationship with their maternal grandmother and keep in regular contact with their relatives in (country omitted).
Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with the child, and to communicate with the child
The parents’ dispute about long-term issues affecting the children seems confined to one dispute about orthodontic treatment for X.
I do not regard the parents’ inability to agree about whom should be the children’s general practitioner or dentist as a long-term issue affecting the children’s health.
The Mother seeks sole parental responsibility for deciding the long-term issues affecting the children’s health. In my opinion, this is not justified by the evidence before the Court.
The Father wants equal shared parental responsibility. This order could only be effective where the parties engage in family therapy.
Otherwise, I am satisfied both parents have taken every opportunity to engage in and be part of their children’s lives.
It is important to note that notwithstanding the emphasis in this case on poor communication between the parents, the evidence is that the children are thriving because of their parents’ engagement with them.
Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The evidence is that the Father has paid amounts to the Mother in accordance with assessments by the Child Support Agency (“CSA”). A recent assessment by the CSA, however, shows that the Father is assessed to be around $26,000 in arrears. The Father’s evidence is that he will pay these arrears.
Otherwise, despite complaints by the Mother, there is no evidence that the Father does not contribute to school fees and other associated costs. The vexed question of the parent’s contributions to the children’s extracurricular activities has been dealt with above.
Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Mother’s proposed orders involve no change to the children’s living arrangements. The Father’s proposed orders increase the children’s living arrangements with him by two nights.
The evidence of Dr O and Dr B is that the children could manage a change to an equal time arrangement provided the parties continue to engage in family therapy with Dr B.
The Mother seeks orders to enable her to take the children to (country omitted) to see their relatives and experience her country of origin. The Father does not oppose this. The dispute is around the amount of time the children spend overseas. The Mother seeks four weeks. The Father says time should be limited to two weeks initially in holidays until Y is 11 years of age, and then the time should increase to three weeks. Both parties agree that there should be make-up time.
No evidence was produced from the children’s school about any adverse impact of the children missing one or two weeks of school were the overseas travel to occur in school term holidays.
Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is a dispute about the frequency of communication by the non-resident parent with the children when they are in the other parent’s care. The Mother proposes she provide a mobile phone for the children to communicate with both parents. The Mother is to be commended for this common sense proposal.
Otherwise, neither party’s proposal involves any practical difficulties or expenses which impact on the children.
Section 60CC(3)(f) – the capacity of each of the child’s parents, and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The parents are genuinely committed to providing for their children’s intellectual and emotional needs and are aware of the impact of their persistent conflict on their children. It is in the children’s best interests for both parents to re-engage in family therapy.
In cross-examination by Counsel for the Father, the Mother conceded that she has had difficulties in getting the children to school on time in the past and that this was a factor behind Y being subject to bullying at school. The Mother conceded that she had received correspondence from the school regarding Y’s absence. Correspondence sent on 28 March 2017 from the Principal of the school to the Mother commenced by stating “Regular attendance at school is important for students to reach their potential” (Exhibit F1). The Mother agreed that, on occasions, she had failed to inform the school about the reasons for the children’s absences. Her explanation was that she had forgotten she needed to inform the school. The Mother said that things had improved in recent times and that she has not received any correspondence from the school since March 2017 regarding the children’s attendance.
No issue arises about the Father’s capacity to ensure the children attend school on time. Arguably, the Father’s proposed order for an equal time arrangement may even better facilitate the children’s attendance at school on time.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
It is unnecessary to consider this factor.
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right.
This factor is not relevant in these proceedings.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I have dealt with this consideration earlier.
Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family
Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family: any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; any other relevant matter
I have dealt with the Mother’s allegations.
Neither party have taken out Intervention Orders against the other.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Clearly it is desirable to make orders which are least likely to result in further litigation. These parents need to move on from the dynamic that has characterised their relationship post-separation. It will require genuine reflection by both parties regarding their contribution to their ongoing conflict about matters which are of little moment in the scheme of things.
Whatever orders are crafted, it seems to me that the best chance for these parents to move on is to re-engage in family therapy with Dr B.
Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
There is no other fact or circumstance that the Court considers to be relevant.
Sections 61DA and 65DAA of the Act
The Father seeks an order for equal shared parental responsibility. The Mother seeks an order for equal shared parental responsibility, save for decisions relating to long-term issues affecting the children’s health and decisions about the extracurricular activities the children should attend. With respect to these two issues, the Mother’s orders propose that she have sole parental responsibility. I doubt whether the extracurricular activities the children should attend falls within the scope of decisions about a major long-term issue in relation to the children.
Generally, poor communication is treated as a contraindication to making an order for equal shared parental responsibility. This is because such an order carries with it the statutory requirement for consultation with genuine effort and for parties to make a joint decision concerning all major long-term issues in relation to children (s.65DAC of the Act).
The Mother’s case is that the parties’ communication is so poor and continues to be so poor despite family therapy that the presumption of equal shared parental responsibility is rebutted.
However, the evidence before the Court is that:
a)the parties’ conflict is mostly confined to issues which are not long-term. In my opinion, the day-to-day medical or even dental treatment of the children does not fall within the scope of long-term issues, but attendance on medical specialists certainly does. However, there has been only one dispute about this, which seems only to have resulted in X unnecessarily attending two orthodontists;
b)it appears to be assumed that by giving the Mother sole decision-making responsibility, the parties’ conflict will disappear. I disagree with this. In my opinion, the only opportunity for the parties to learn how to genuinely communicate and reach joint decisions is by them taking responsibility for changing their behaviour towards each other. I am not confident the Mother has acquired the skills yet to communicate appropriately with the Father about the decisions she has made.
I am not satisfied that the presumption of equal shared parental responsibility is rebutted. This finding is, however, subject to the parties re-engaging with and accepting the recommendations of Dr B.
I am now required to consider, firstly, whether it is in the best interests of the children and is reasonably practicable for the children to spend equal time with both parents and, if so, whether an order for equal time should be made under s.65DAA(1) of the Act.
The matters to be taken into account in determining what is “reasonably practicable”, and the interplay of best interests and reasonably practicable, was considered by the High Court of Australia in MRR v GR [2010] HCA 4 (“MRR v GR”) where the High Court said (at [9]):
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
The High Court of Australia went on to say (MRR v GR at [13]) that s.65DAA(1) of the Act is expressed in imperative terms, and obliges the Court to consider both the question of whether it is in the best interests of the child to spend equal time with each parent or substantial and significant time, and whether it is reasonably practicable for either order to be made. The High Court stated that it is only where both questions are answered in the affirmative that consideration may be given to the making of an order for equal time or substantial and significant time under s.65DAA(1)(c) of the Act.
I am satisfied that it is in the best interests of these children to spend equal time with their parents. I have formed this opinion on the following bases:
a)both parents have a demonstrated commitment to meeting the intellectual and emotional needs of the children;
b)both parents have a demonstrated ability to be involved in their children’s lives;
c)the Father is self-employed and has given evidence that he can adjust his commitments to manage additional time with the children. I accept this evidence;
d)this arrangement provides the scope to reduce the parents’ face-to-face contact on changeover which has proved to be a major source of conflict to which the children have been exposed;
e)the children have spent time with each parent under a 9/5 arrangement. Thus, the change to a week on/week off arrangement is one, even at their age, the children are likely to manage;
f)the children will devise the benefits from additional time with an actively engaged father.
In my opinion, an arrangement where the children spend time with their parents from Monday after school until the commencement of school the following Monday is in their best interests.
Because of the proximity of the parents’ homes and the schools, I can see no practical difficulty with an equal time arrangement.
The parties agree that the children should spend half the school holidays with each parent. The Father, however, says that because of Y’s age the long Summer school holidays should, until Y is 11 years of age, be arranged so that the children spend two weeks in each parent’s care and then half of the residual long-term holidays in each parent’s care.
No evidence was produced about the benefits of the arrangements over the long-term Summer school holidays. I am, however, satisfied that the children’s best interests are best served by them spending half of the long-term school holidays with each parent on an alternating basis.
Other Issues
There are three further issues about which the parties are in dispute:
1)the frequency and extent of time the children should be permitted to travel overseas;
2)whether the Mother should be permitted to obtain (nationality omitted) passports and dual citizenships for the children; and
3)the children spending time with their mother on (holiday omitted) and (holiday omitted).
With respect to international travel, both parents should be permitted to take the children overseas, provided it is within the time they have the care of the children in the school holidays or longer and provided an arrangement exists for make-up time.
The real gist of the parties’ dispute is the Mother’s proposal to take the children to (country omitted) in (omitted) 2019 for up to three weeks so that the children can join in the birthday celebrations of their maternal grandparents who are to turn 70 and 71 years of age, and the Mother’s proposal that she also be permitted to take the children overseas for a period of four weeks in each year which shall include one week of school term.
Grandparents’ birthdays are clearly special occasions and, in my opinion, it is in the children’s best interests that they be permitted to travel overseas for this purpose for three weeks only.
However, I have not been informed about the actual time period the Mother proposes to travel or whether the proposed travel falls in the school holidays. In these circumstances, I am satisfied that for 2019 the children should be permitted to travel for three weeks, provided the children miss no more than two weeks of school time and that the Father is provided with make-up time.
Otherwise, I am satisfied that the parents should be permitted to travel overseas with the children by agreement, or in default of agreement:
a)during their time with the children in the long Summer school holidays. This should permit travel after Christmas Day for around three weeks; and
b)two weeks in a school term holiday in each alternate year. By this I mean that the Father be permitted to travel for two weeks in school term holidays in 2018, 2020 and so on, and the Mother be permitted to travel in 2019, 2021 and so on.
Any international travel should be subject to the provision by the travelling parent to the non-travelling parent of a full itinerary 30 days prior to travel upon 60 days’ written notice of that parent’s intention to travel to a particular destination. There should also be a requirement that, to the extent possible, communication occur by Skype with the non-travelling parent as often as is reasonably feasible. Of course, there should be make-up time for the non-travelling parent in the next school holidays.
I am not prepared to make any special provision for (holiday omitted) or (holiday omitted). I appreciate the desire of the Mother that the children enjoy these days which are special to her. However, I am concerned that they make the orders unnecessarily complex. There is no reason why, at least in the future, the parents could not agree on time spent on these days. In the meantime, the children may well have the capacity to enjoy these days with their mother during the times they spend with her.
Although the Mother’s orders providing for the children to obtain a (nationality omitted) passport and (nationality omitted) citizenship were opposed by the Father, no substantive reason has been proffered by him for opposing these orders. I am satisfied that it is in the best interests of these children to have both (nationality omitted) and Australian passports and both (nationality omitted) and Australian citizenship.
A key issue in dispute in these proceedings has been around the children’s extracurricular activities.
I questioned the Mother about whether she would accept an order which restrained the parties from enrolling the children in any further extracurricular activities unless agreed to in therapy with Dr B. The Mother said that she was agreeable to this. I did not put this proposition to the Father as he had already given his evidence, however, I did not understand this approach to be opposed by the Father in closing submissions.
I will therefore not make an order giving the Mother the sole decision-making power with respect to extracurricular activities, nor will I make an order giving the Mother the sole decision-making power with respect to the children’s treating dental and medical practitioners.
I will make an order that the parents are restrained from enrolling the children in any additional extracurricular activities unless agreed to during family therapy or otherwise.
I will make a further order requiring the parties to ensure that all uniforms and equipment required for any activities during the week the children are to be in the other parent’s care are provided to that parent. I found the Father’s behaviour in not returning uniforms to the Mother in the past to be very non-cooperative.
I am also of the view that if a parent wants a child to engage in private lessons in music or other area, that parent should bear the costs of those lessons. Otherwise, the costs of extracurricular activities and uniforms should be borne equally by the parents.
I shall make an order that the parties engage in family therapy with Dr B and that they comply with her recommendations. Dr O opined also that this was recommended whatever orders the Court made. I do not accept the Mother’s evidence that the parties’ engagement in family therapy has produced no change in the parents’ communication. This contradicts the evidence Dr B gave about the Mother’s report to her that communication was improving. My opinion is that the Mother’s evidence regarding the benefits of family therapy was designed to bolster her case.
I accept that the limited number of therapeutic sessions has not produced significant changes in the parties’ communication. In my opinion, however, given the parties’ ingrained dynamic, the expectation that there would be vast improvements is naïve. On the other hand, I am confident that both parents, appreciating that it is in the best interests of their children, will genuinely engage in the therapeutic process moving forward.
I shall make an order that Dr B be provided with a copy of these Orders and this judgment.
Conclusion
For the reasons set out in this judgment I make the orders set out above.
I certify that the preceding one hundred and ninety-nine (199) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 23 February 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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