Davidson & Calder

Case [2022] FedCFamC1F 951

Federal Circuit and Family Court of Australia

(DIVISION 1)

Davidson & Calder [2022] FedCFamC1F 951

File number: CAC 335 of 2021
Judgment of: GILL J
Date of judgment: 5 December 2022
Catchwords: FAMILY LAW – PARENTING – Application made by mother regarding maintaining current time with the father and children’s attendance at inter-state boarding school – Where the father seeks increased time with the children and opposes boarding school attendance – In context where shared parental responsibility is agreed – Where children are aged 15 and 12 respectively – Consideration of best interests of the children and maintaining a relationship with the father – Where weight is given to the views of the children forged by their lived experiences – Where the continuity and stability of the children is accorded greater weight.

Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA

Cases cited:

Jollie & Dysart [2014] FamCAFC 149

Marsden & Winch (No 3) [2007] FamCA 1364

Mazorski v Albright (2007) 37 Fam LR 518

Phillips & Hansford (2019) 60 Fam LR 160
Division: Division 1 First Instance
Number of paragraphs: 130
Date of hearing: 21–22, 24–25 November 2022
Place: Wagga Wagga
Counsel for the Applicant: Ms Smallwood SC and Ms Warnock
Solicitor for the Applicant: Orman Solicitors
Counsel for the Respondent: Mr Coleman SC and Mr Harper
Solicitor for the Respondent: Dobinson Davey Clifford Simpson

ORDERS

CAC 335 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS DAVIDSON

Applicant
AND:

MR CALDER

Respondent

order made by:

GILL J

DATE OF ORDER:

5 December 2022

THE COURT ORDERS THAT:

1.All previous parenting Orders and injunctions are hereby discharged. 

2.The mother and the father shall have equal shared parental responsibility for the children, X (“X”) born 2007 and Y (“Y”) born 2009 (“the children”). 

3.The mother’s application in relation to the enrolment of the children at E School is refused and dismissed.

4.The parties shall take such steps as are necessary to withdraw any extant application for enrolment of the children at the E School.

5.The children shall live with the mother

6.Unless otherwise agreed by the parties in writing, the children shall spend time and communicate with the father:

(a)During the school term, each alternate weekend, commencing on the first weekend following the commencement of the school term, from the conclusion of school on Friday (or 5.00 pm if a non-school day) until the commencement of school on Monday, or if the Monday is a public holiday or pupil free day, the commencement of school on the Tuesday;

(b)During school holiday time:

(i)For the summer holiday break on a week about basis where:

A.In each even numbered year time with the father shall commence at midday on the first Saturday of the holidays and alternate thereafter until the last Saturday of the holidays when, if the children were otherwise due to return to the father, they shall instead remain with the mother until the commencement of school;

B.In each odd numbered year time…

Continue reading Davidson & Calder

Sign in free to access the full text

Details
AGLC
Davidson & Calder [2022] FedCFamC1F 951
Case
[2022] FedCFamC1F 951
Decision Date

CaseChat Overview and Summary

In the case of Davidson & Calder, the primary concern was the dispute between the parents regarding the care and upbringing of their two daughters, X and Y. The conflict was primarily centered around the mother's desire to enroll the girls in a boarding school, which the father opposed. The case was heard in the Family Court of Australia. The legal issues the court had to address included the girls' views on their schooling and time with their father, the nature of their relationships with him, the impact of parental conflict on the children, and the potential effects of a move to boarding school on the girls.

The court meticulously examined the evidence presented, particularly focusing on the credibility and demeanor of the parents during their testimonies. Both parents exhibited hostility and a lack of cooperation, which made it challenging to ascertain the truth. The court was also concerned with the parents' attitudes toward each other and how their disagreements had influenced the children. Despite these challenges, the court determined that the primary focus should be on the best interests of the children, considering their ages, developmental stages, and emotional investment in the decision.

The court's reasoning led to a detailed judgment that provided clarity on how the decision was made and how the girls' views were considered. The judgment emphasized the importance of the girls understanding the decision-making process rather than being exposed to the conflict between their parents. The court ordered equal sharing of parental responsibility and decided against enrolling the girls in the boarding school. The parenting arrangements included specific visitation schedules, provisions for school holidays, and restrictions on parents speaking negatively about each other. The court also made orders to ensure proper information sharing between parents regarding educational and medical issues and to protect the girls from harmful communication.

The final orders included provisions for the girls to live primarily with their mother but with regular fortnightly visits to their father during term time. School holidays were divided, with the girls returning to their mother before each new term to minimize disruption. The court refrained from making specific orders for celebrations such as birthdays to reduce potential conflict and disruption. The decision also highlighted the importance of the parents' cooperation in making decisions about the girls' psychological and educational needs. Overall, the court aimed to create a stable and supportive environment for the girls, balancing their needs with the parents' rights and responsibilities.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The significant considerations then caused the case to be centred on a narrow band of factual issues. These are:(1)The nature of the girls’ views in relation to school and time with the father, along with what has influenced those views, the reasons underpinning those views, and the level of understanding and maturity of each of the girls in holding those views;(2)The nature of the relationships between the girls and the father, the reasons for limitations in those relationships and the nature of the benefits to the girls of time and relationship with the father;(3)The attitudes of the parents to each other, and the manner in which the parents and their disagreements have influenced and impacted upon the girls;(4)The effects upon the girls if the move to boarding school is refused, in particular the degree to which this may lead to resentment of, and undermining of the relationship with the father; and(5)The impacts upon the girls flowing from a move to the boarding school, in less frequent and substantial time with their parents, displacement from their home, animals, current school and friends, with consideration given to how such a move will impact a particular child given that child’s characteristics.The evidenceAttitudes of the parties to each other If not already apparent from their affidavit material, the oral presentation of the parties in the courtroom convincingly communicated the parties’ suspicion, hostility and ill will toward each other. While it may reasonably be anticipated that it will be difficult for a party to identify the positive in another party under cross-examination, the degree to which the mother struggled, over a lengthy period, to identify anything substantively positive in the father as a parent, communicated her poor view of him as a parent. The father, in his evidence, was explicit in his view that the mother did not consider her actions to be in the best interests of the girls. This, he explained, was not because of some sinister motive, but rather because of the mother’s determination to have her own way. These introductions to each party’s oral evidence echoed throughout the balance of their evidence.Credibility It may be observed that both parties were troubling in their manner of giving evidence. Each regularly deflected from answering what was asked of them, each presenting as hostile to the other, taking opportunities, whether offered by the question or not to criticise the other. When coupled with variability in their answers, there was reason to be cautious about their evidence. However, this was not a matter to be determined on credit and demeanour given the particular issues in the case, and so it is unnecessary to form a solid view on the credibility of the parties.Pre-separation Limited attention was, reasonably, given to issues arising prior to separation. For periods during the relationship, the mother’s now adult children Mr J and Mr H, lived with the parties, and have formed important relationships with the girls.

Decision

Reasons for decision

It is, however, important for the girls, noting their ages, level of development, and investment in the issues, to understand how the decision was arrived at, and how their views were weighed in the balance of considerations, rather than ignored. To this end the parties will be at liberty to provide the girls with the “Further consideration” portion of the judgment should either consider it helpful for the girls to understand this important decision in their lives. The balance of the judgment will not be made available until the girls reach adulthood, there being little benefit in the girls being exposed to the conflict between their parents that played out in court.Conclusion Orders will be made for the equal sharing of parental responsibility. No order will be made for enrolment of either X or Y at E School, and orders will be made to bring any extant enrolment process to an end. The parents will be at liberty to change the arrangements by agreement in writing. During term time the girls will spend three nights per fortnight with the father, and otherwise live with the mother. School holidays will be, generally, split in half, with provision for the girls to return to the mother’s care prior to each recommencement of school, to aid in their process of settling into the new term. Provision will be made for Mother’s and Father’s days. No specific provision will be made for either parent’s birthdays or the girl’s birthdays. Rather each parent and the girls will be able to celebrate such when they are next in the care of that parent, leading to less disruption. Orders will be made sufficient to facilitate each parent having proper information about educational and medical issues. Orders will be made restraining the parents from exposing the girls to that parent saying or otherwise communicating bad things about the other parent. Whilst the father sought an order compelling school attendance unless a child is unwell or attending medical professional, no such order will be made, as insufficient justification has been shown to restrict a parent, in the exercise of parental responsibility, from choosing that a child not attend on a particular day. While the mother sought an order mandating psychological attendances by the girls, and while undoubtedly such would be beneficial, such attendance will be on the decision of the parents in the exercise of their shared parental responsibility, rather than being confined by injunction.

Ratio Decidendi

Legal Principle Established

Whilst such displays are likely deleterious to the girls if the girls are exposed to them, the case was not one that was reliant on a claim of risk in the part of the father. Rather, the incidents of ill controlled temper describe some limitation in his parenting capacity.Events following separation The parties separated on 12 October 2020. The mother and girls initially leaving the family property and the father remaining. After a short number of days, following discussions with a friend of the father, the father decided to vacate the family property to allow the mother and the girls to stay there pending resolution. He moved into a property owned by the parties in City G, an arrangement that has caused him deep unhappiness. The parties, pending trial of the matter, have had many disagreements, including over access by the father to the family property, the running of the family property, the disposal of property, the conduct of his business, disclosure and, importantly, the girls. It is an understatement to observe that the parties are not on good terms. Despite the poor state of their relationship, time was facilitated between the girls and the father on a week by week basis with frequent short periods in and around the girls’ schooling and extra-curricular activities, but not overnight. The father characterised this as the mother exercising control over and dictating the arrangements, whilst the mother characterised this as working in and around the girls’ arrangements. Proceedings were commenced on 19 February 2021, and in June 2021, interim orders were made that provided for the girls to spend six nights per fortnight with the father, in week one from Wednesday until Friday, and in week two from Thursday to Monday, along with half of the school holidays. An application to enrol X at E School was refused. A single expert in the child related matter, Dr B, was appointed. A specific part of his terms of reference related to the issue of whether the girls should be enrolled at E School. He undertook interviews and observations (via remote electronic means), releasing his report in October 2021. In January 2022, a Senior Judicial Registrar heard a further application by the mother for X to enrol at E School for the 2022 year. This again was refused, partly acknowledging that the issue would be determined at final hearing. The time from the making of the June 2021 orders between the father and the girls was, it seems, difficult for both the girls and the father. The mother described the girls’ most significant complaint about this time as being that the father was not more available to them. He accepted that during time with the girls he was frequently outside the house smoking, and/or talking on the telephone. The mother asserts that the girls have made many complaints to her about the father leaving the home to attend on people such as his therapist, or that he is outside the house smoking and talking on the telephone, and that they are effectively on their own ninety percent of the time.