Davidson & Calder
[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 with the father shall commence at midday on the second 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;
(ii)For the holidays at the conclusion of term 1, term 2 and term 3:
A.With the mother for the first half of the term 1, term 2 and term 3 holiday periods in 2023 (and each odd-numbered year thereafter);
B.With the father for the second half of the term 1, term 2 and term 3 holiday periods in 2023 (and each odd-numbered year thereafter);
C.With the mother for the second half of the term 1, term 2 and term 3 holiday periods in 2024 (and each even-numbered year thereafter);
D.With the father for the first half of the term 1, term 2 and term 3 holiday periods in 2024 (and each even-numbered year thereafter).
E.In the event that the children are spending the first half of the holiday period with the father handover shall occur at midday on the day following the last day of school attendance for the term;
F.In the event that the children are spending the second half of the school holiday period with the father handover shall occur at midday on the day prior to the first day of school attendance for the next term;
G.Calculation of division of term 1, term 2 and term 3 school holidays will be on nights and divided by two, where night one is counted as the first night following the last day of the school attendance for the term and the last night of the holidays is the night before the first day of school attendance for the next term;
H.If there is an unequal number of nights then changeover is to be at 6.30 pm on the day that is the midpoint of the holidays;
I.If there is an equal number of nights then changeover is to be at 6.30 pm on the day following the half way point;
7.Unless otherwise agreed in writing, changeovers shall occur at school if the child is at school that day and otherwise shall occur at F Hotel in City G, NSW.
8.Each parent shall authorise any school that the children attend to advise the other parent of information regarding the children
9.Each parent shall authorise any treating medical practitioner, dental practitioner, hospital or medical practice that the children shall attend from time to time to provide to the other parent any information regarding the children.
10.That the parties shall keep the other informed of all appointments made for the children to attend upon a medical professional or other health providers including psychologists and/or counsellors prior to attendance, except in a medical emergency wherein the parent shall notify the other parent as soon as possible.
11.Each party shall keep the other informed of the children’s health and any health issues as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken except in cases of emergency (with the party in whose care the children are in to inform the other party as soon as possible).
12.Each party shall keep the other informed of their residential address, mobile telephone numbers and email address and undertake that they will provide within 48 hours notification of such change taking place.
13.Each parent is restrained from making critical or derogatory remarks about the other party and or members of that family in the presence or within the hearing of the children (including via social media) and that the parties shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other party and or members of their family in the presence or within the hearing of the children (including on social media).
14.Prior to the children reaching their majority, each parent is at liberty to provide the children with the portion of this judgment entitled “Further consideration” should either consider it beneficial to the children to have access to such, and to that end such an extract will be provided to the parties.
15.The parties are otherwise restrained from providing this judgment to the children prior to their reaching their age of majority.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Davidson & Calder has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
introduction
The applicant mother, Ms Davidson, born 1969, and respondent father, Mr Calder, born 1969, commenced living together in 2004. They married in 2016 and separated on 12 October 2020. They were divorced in June 2022. There are two children of the relationship, X (“X”), born 2007 and Y (“Y”), born 2009 (“the girls”).
The mother has two children from a former relationship, Mr H (aged 27) and Mr J (aged 28) who lived with the parties at various times. Mr H and Mr J are both important relationships for the girls.
Nature of the dispute
At the commencement of the trial, orders were made splitting the parenting and property proceedings. This judgment deals with the parenting proceedings only.
The parenting proceedings concern two main issues. The first is as to the time that the girls will spend with the father. The parties agree that the girls will, subject to the next main issue, live primarily with the mother. They agree that there should be a sharing of holiday periods. They however disagree as to whether the girls should spend a three night or five night block with the father across each alternate weekend.
The second main issue relates to the schooling arrangements for the girls. Despite the parties’ common position that they should equally share parental responsibility, they are unable to agree on whether the girls, who currently live near and attend school in City G, should attend E School (“E School”) as boarders over four hours away. The corollary of such an enrolment would be that there would be a significant reduction in the time that the girls would spend with either parent during each term, subject to a parent travelling to Melbourne to spend time with the girls, meaning that if boarding at E School is permitted then the orders regarding the time that the girls will spend with each parent become less significant.
The mother pursues such an enrolment. The father opposes it.
material relied upon
Given the splitting of the proceedings the parties each appropriately relied upon a limited subset of their filed material.
Applicant Mother
The mother relied upon the following:
(1)Affidavit of Ms Davidson filed 15 October 2022;
(2)Affidavit of Ms K filed 16 October 2022; and
(3)Affidavit in reply of Ms Davidson filed 17 November 2022;
Respondent Father
The father relied upon the following:
(1)Affidavit of Mr Calder filed 10 November 2022.
Further, two reports were prepared by the single expert in the parenting matter, Dr B, 29 October 2021 and 3 November 2022 which were relied upon.
Principles
The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of X and Y. That is to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act and, where applicable, following the reasoning process set out at s 65DAA of the Act.
The objects and principles contained at s 60B of the Act provide that:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It may be readily recognised that the objects and principles do not all necessarily point in the same direction.
The Court is required to evaluate the s 60CC considerations to the extent that they are at “issue in the proceedings.”[1] The considerations are to be assessed to the extent that they are “relevant to the particular circumstances of the child”[2] This calls for a focused examination of the considerations that arise in the individual case. The considerations that require closest attention can usually be identified from the matters that the parties ultimately placed emphasis upon in the trial.
[1] Phillips & Hansford (2019) 60 Fam LR 160, [43].
[2] Jollie & Dysart [2014] FamCAFC 149, [45].
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
The two primary considerations (which in large part reflect the emphasis of the Objects) focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations. The second primary consideration was not identified as a consideration of significance in this hearing.
In Marsden & Winch (No 3),[3] Warnick and Thackray JJ observed the prominence of the primary considerations, such that a primary judge is:
78.…of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.
[3] [2007] FamCA 1364.
However, they also noted that the primary considerations are to be considered as part of the suite of considerations that includes the additional considerations:
77. whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
The primary considerations, described as the “twin pillars” upon which the considerations rest by Brown J in Mazorski v Albright,[4] frequently subsume a number of the additional considerations. For example, the additional consideration at s 60CC(3)(j) that concerns family violence involving a child or member of the child’s family will often form a part of the primary consideration relating to the need to protect a child from family violence.
[4] (2007) 37 Fam LR 518.
Similarly, and noting Warnick and Thackray JJ’s analysis in Marsden & Winch (No. 3),[5] that the Act places focus, not on a meaningful relationship as an end in itself, but rather in terms of the benefits to a particular child of a meaningful relationship with a particular parent, the nature of the child’s relationships (s 60CC(3)(b)) and parenting capacity (s 60CC(3)(f)) will often comprise a part of this consideration.
[5] [2007] FamCA 1364.
In this case, issues of parenting capacity and the nature of the relationships between the girls and the important persons in their lives loomed large, as did the extent and capacity of the parents to support relationships between each child and the other parent, and the potential impact of a change in their circumstances.
Of strong significance are the views of both X and Y, to be assessed by taking into account the ages, maturity and understanding of each of the girls.
Some attention was also given to avoiding the prospects of further litigation.
In this case, as an order will be made for equally shared parental responsibility, but in circumstances where neither party contends for an equal sharing of time, it will be considered whether an order for substantial and significant time is reasonably practicable and in the girls best interests, in accordance with the legislative pathway. Given the parties positions, this involves a careful consideration of whether the father’s nine–five proposal will be in the girls’ best interests as opposed to the mother’s eleven–three proposal being in their best interests, or whether some other arrangement is preferable.
Factual issues
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 evidence
Attitudes 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.
The mother had primary responsibility for the care of the girls, the father working long hours in his business. It is notable that X described to Dr B that the mother was the “main parent”.[6] Each of the parties also practically contributed to the running of the family property on which they lived in various ways that it is not currently necessary to define.
[6] Expert Report of Dr B dated 2 November 2022, paragraph 26.
The parties agree that in about 2019 the mother and father discussed his then limited involvement with the girls. It was common between the parties that this discussion heavily impacted upon the father, and in response he made significant changes to his work-life arrangements to enable him to contribute and participate more in the lives of the girls. From this time, he interacted more with the girls, including preparing their lunches each day, taking them to sporting events and being generally more available to them.
Evidence was also led about a number of incidents during the relationship indicating angry outbursts on the part of the father. Three in particular were identified. One involved the father chasing and hitting livestock in his motor vehicle. He explained that he had done so out of frustration at the mother. Another involved an allegation that the father had driven at a neighbour’s dog in a motor vehicle. The father explained that he had done this to prevent the dog from spooking livestock that were then being moved by the mothers, the neighbour having set the dog onto the livestock. The mother’s initial description of this event to authorities matched this explanation, somewhat inconsistently with her description in her affidavit which was critical of the father. The third, shortly prior to separation, involved the father slamming the screen door three times in anger, causing it to come off its hinges.
The incidents, other than the one involving the neighbour’s dog, are suggestive that the father is liable to engage in aggressive physical acts when frustrated.
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.
The ninety percent description should be treated as exaggerated. The mother accepted that the girls, in describing the time with the father to her, would tell her what they thought that she needed to hear and perhaps, in the context of the antipathy between the parties this explains what appears as an exaggerated account.
However, while I do not accept the percentage estimate, the father’s account, coupled with the complaints by the girls, in particular as to a lack of availability, indicate that there has been a deficient engagement between the girls and the father when they spend time with him. This is most eloquently described by X to Dr B when she explained that she had hoped that the father’s house in City G would become another home to them, but that it had not, and that’s it remained the father’s house rather than their home.[7]
[7] Expert Report of Dr B dated 2 November 2022, paragraph 25.
The experience of the girls is consistent with the personal struggles that the father was facing during this time. When the father was initially assessed by Dr B, his symptoms were consistent with reactive depression. By the trial, Dr B assessed the father as having symptoms consistent with a Major Depressive Disorder. The father described himself as miserable most of the time. Perhaps consistently with this, the father described that he hoped to be a better man if he is able to return to the family property, describing his unhappiness at life in City G.
After showing a demonstrable ability to support the girls spending time with the father in accordance with the orders that provided for a six–eight arrangement, in May 2022 the mother ceased to comply. From then, the girls generally spent each alternate weekend from Friday to Monday. Although the mother accepted that she had previously prevailed on the girls to spend time with the father on accordance with the orders, despite some protestation, as at May 2022 she told the girls, in response to their asserted wish to spend less time with the father that “whatever you do, I will support you” and that they should work out how much time they would spend with the father and then “we will do that.”
The father was unable to say that this reduction in time was other than in accord with what the girls wanted. He further accepted that by April 2022 his relationship with the girls was becoming “quite strained.”
Up until this time the mother described only limited specific occasions of the girls’ resistance to spending time with the father (although with a general assertion as to the difficulty of such). As at May 2022 the mother gave little specific description of the purported level of resistance of the girls, detailing no matters that painted a picture of resolute or strong resistance on the part of the girls that could not otherwise have been dealt with as the mother had demonstrated that she was capable of doing over the previous eleven months.
The mother said from this point she was unable to secure compliance. She described this as despite utilising her best efforts to cause the girls to comply. I do not accept this description. The mother impressed, both during the proceedings, in her material, and in her presentation before Dr B as a highly capable and determined person, who I have no doubt was capable of securing the girls ongoing attendance upon the father in accordance with the orders had she been motivated to do so.
The father described that this change in the pattern of time followed a disagreement between the parents, following the resumption of the new school term, as to whether the girls were to spend time in accordance with week one or week two of the ordered pattern. He decided he would retain the girls in accordance with week two of the pattern at the end of the first week of term. This somewhat ridiculous drawing of a line in the sand was neither child focussed nor apt to promote cooperative parenting. While the father attributed the change in the girls’ attendance to this skirmish, I am unable to conclude that this was the case.
The father describes that the limited time with the girls renders him as a distant relative, with X failing to relax until the Sunday.
In November 2022, the property proceedings and child related proceedings were split and the trial of the child related proceedings was heard.
The father considers, unsurprisingly, that these proceedings have cast a heavy burden upon him. He expects that following the resolution of the proceedings that things will be very different in three to six months. He has told the girls that he will be moving back to the family property. He accepted that this may have caused the girls anxiety, in a context that their life on the family property would suffer some disruption were he to take possession of the family property. He also considered that X would make up her own mind about what she would do if he were to have possession of the family property and so she would not feel as though she were kicked off the family property.
I do not expect that the proceedings have failed to take a toll on the mother.
E School
As noted in the beginning of the judgment, the central aspect of the dispute between the parties was whether the girls should be enrolled as boarders at E School.
The mother has pursued orders to permit both girls to be enrolled at E School for 2023. They currently attend a private school in City G. While some issues were identified in relation to the girls’ experience in their current educational arrangements, little substantive criticism arose, and the case was not presented on the basis that E School offers a superior educational experience.
Each of the girls has expressed a desire to attend E School, which the mother accepts reflects her views on the matter. She further accepts that her views have influenced the girls, and that she considers that it is very important to her that they attend E School. She accepted that she has also discussed the father’s opposition to the boarding school to with the girls, identifying that he has changed his mind about boarding school. In hindsight, she accepted that she should not have drawn the girls into such discussions.
The mother describes that X has expressed no reservations to her about E School, and is firm in her view that she should attend. She described that X is still very upset that she is not able to go to boarding school.
The mother is convinced that the attendance at E School is a superior arrangement for the girls. Her evidence is that the girls’ ultimate attendance at a boarding school was agreed during the relationship. Although the father disputes this, he accepts that he proposed alternate boarding schools, having a preference for L School, and that he “played along” with the proposal that the girls attend boarding school. This is sufficient to establish that to all appearances to the mother and to the girls, it was anticipated that they would ultimately attend boarding school.
The mother describes that she attended boarding school, and that it was a positive experience for her, a matter made apparent to the girls. She also describes that X has read the Malory Towers books by Enid Blyton, which appear to present a highly idealised picture of boarding school life (or at least there was no challenge to this assertion by Dr B in expressing his concern that X had an idealised picture of boarding school). The girls’ expressions about boarding school to Dr B are dealt with in the assessment of his evidence.
Although boarding school was apparently the consensus position whilst the relationship remained intact, following its demise it was quickly apparent that it was no longer the consensus. It may be observed that once the relationship ended, the circumstances that underpinned such an arrangement for the girls had come to an end. No longer were they living in a common home, the family property, with both parents, but their relationships with both parents then required a splitting of their time and places of residence.
An indicator that it was apparent that there was no agreement is that the mother arranged a visit for the girls with the mother to E School, and did so in a manner to conceal it from the father, as she expected that he would oppose such. Whilst he discovered the visit in advance of it, and opposed the visit, the mother pressed on with it. It may be considered that this visit represented a firming of the girls’ hopes and expectations that they would attend E School, and formed the starting point of a wedge between the girls and the father. From this point, the girls anticipated attending E School, which the father opposed. His successful opposition to the mother’s repeated attempts by litigation to secure their enrolment must have been apparent to the girls. The father considered that the girls are frustrated with him following his preventing their enrolment, with this resulting in him being “the bad guy”.
The father does not accept that the mother thinks that E School is in the girls’ best interests. Although he does not consider that it is motivated by a sinister intent, such as to get at him, he considers that the mother is pursuing it because “nobody tells [Ms Davidson] what to do.”
The mother accepts that a move to E School would necessitate the separation of the girls during term time from herself, the father, the family property, their brother Mr H and his partner Ms M, various animals and life in City G. While the girls would potentially have support from the other brother, Mr J, who lives in Melbourne, he was not on affidavit in the proceedings and the level of his involvement remained unclear.
The mother accepted that there would likely be a period of adjustment for the girls at boarding school. She thought that it, along with attendant homesickness, could last twelve months. She considered that if, after twelve months the girls were adamant that they could not commit to boarding school, then they would come home.
The father expressed his concern for Y if she was unhappy at E School.
At the end of the trial, the mother confirmed that while her application is for both girls to commence next year, if it was determined that Y was not yet ready, that orders should be made for X to commence immediately with Y to follow later.
In late 2021, the mother took steps to enrol Y at E School, contrary to court orders that specifically precluded such, explaining that the “technicality” had “slipped her mind.” Given the specific and prominent dealing with the issue of enrolment, such an explanation should not be accepted. It may also be noted that she took this step despite the first report of Dr B being specifically unsupportive of Y attending E School at that stage. While the mother could not recall whether she had seen the report at that stage, given the focus of the report on the boarding school issue I do not accept that she was unaware that it was at least hesitant as to the benefits to Y of then attending E School.
The father, contrary to orders, engaged in discussion with the girls in relation to boarding school.
It is apparent that following the resolution of the property dispute, both parties would be in a position to travel to see the girls at E School as frequently as was permitted by the school should they choose to do so.
Single Expert Dr B
Dr B, a psychiatrist, was appointed as the single expert in relation to the parenting dispute. He provided two reports, dated 21 October 2021 and 2 November 2022, and was cross-examined.
He observed that the girls love both parents, having a primary attachment relationship with the mother, with a strong emotional attachment. She was experienced as more available to and engaged with the girls. A loving emotional attachment was also observed between the father and the girls.
Y described to Dr B that she did not like being at the father’s home because it was not her home, and because the father was “not usually there”.[8] She felt that the girls were looking after themselves.
[8] Expert Report of Dr B dated 2 November 2022, paragraph 41.
Dr B identified that X wants an eleven–three arrangement across the fortnight with her father, and to spend half of the school holidays with the father, and Y no more than three nights in a row with the father. Y described that she was happy living on the family property with the mother, that she loves staying there.[9] Y was not sure of spending half school holidays with the father, saying that, as when staying with the father during term time, travelling with him on the holidays involved him leaving the girls alone.
[9] Expert Report of Dr B dated 2 November 2022, paragraph 39.
In relation to attending at E School, he recorded that X described to him that she was “kind of completely crushed” by the court’s refusal to allow her to enrol. She described that she “really wanted to go”.[10] However, in relation to her attendance in 2023 X initially described that “I’m not completely sure. I do think that I still want to go to boarding school. I think”.[11] Reflecting back to X that she appeared more uncertain X then affirmed that she wished to attend boarding school, seeing great opportunities, but anticipating homesickness. She then affirmed several times that she wanted to go. Despite these repeated assertions, the qualified manner of her first expression leads to a conclusion that whilst X still desires to attend E School, that desire is less than unequivocal.
[10] Expert Report of Dr B dated 2 November 2022, paragraph 28.
[11] Expert Report of Dr B dated 2 November 2022, paragraph 29.
Dr B recorded Y as expressing that she wanted to go to E School as it would be “really cool,” identifying that she would have relatives nearby.[12] Although Y described her discomfort with being in the town atmosphere in City G and away from the family property, she considered that Melbourne would be different. Y enjoyed her current school but preferred that she attend boarding school.
[12] Expert Report of Dr B dated 2 November 2022, paragraph 47.
Dr B emphasised the importance of the views of the girls, including the importance of the girls feeling that their views have been considered, respected and given appropriate weight. He observed that to do otherwise would be undermining, disrespectful and potentially coercive. He considered that it was important to affirm their views where they fell within a reasonable range of experience, presumably meaning falling within a reasonable range of outcomes.
Dr B observed that a view for a three night per fortnight arrangement fell within such a range of reasonable outcomes. He however considered that the issue of boarding school was somewhat different, and more clearly a decision for adults rather than for the girls.
Despite their views he did not support the girls’ attendance at boarding school, in particular due to vulnerabilities in both girls.
In his first report, he identified that Y had a “vulnerable temperament raising the likelihood of difficulties should she fail to develop a supportive social network at her new school.”[13]
[13] Expert Report of Dr B dated 29 October 2021, paragraph 153.
Whilst he had, in his first report, considered X competent and likely to do well in the boarding school environment, he amended this view in his second report and oral evidence. Rather, he observed vulnerabilities within X that he had not seen in the first assessment.
This vulnerability could be seen in X feeling overwhelmed with spending extended time with the father in town, experiencing separation anxiety, and struggling to adapt to a new environment. She is now displaying some anxiety around school work and social situations.
This was despite being positive about both parents, her friends and her current school. That is, X was struggling to establish herself in a new environment when everything else was stable and familiar.
A significant example of X’s vulnerability was seen in her inability to go away for a short period of time for a Duke of Edinburgh awards four day hike. This was related, at least in part, to the prospect of homesickness for even such a short period away. X sought to explain her anxiety to Dr B as “teenager stuff” and resulting from being away from the mother and the family property when with the father.[14]
[14] Expert Report of Dr B dated 2 November 2022, paragraph 28.
Hence, Dr B considered that there was a “striking discrepancy between the reality of the girls’ experience and the views expressed by both girls.”[15]
[15] Expert Report of Dr B dated 2 November 2022, paragraph 127.
The framework identified by Dr B for assessing the prospects of boarding school was a model of competence. In summary, he considered that what was important for the girls in their development was an experience of self-efficacy, which involves encountering hurdles, meeting them successfully and developing their self-esteem. If the opposite occurs and they meet hurdles which they fail to overcome, this is likely to result in their anxiousness, with a risk of depression in the context of cumulative developmental stress.
This risk was accentuated in circumstances of the observed vulnerabilities in the girls.
This risk is accentuated for X because she has developed an idealised view of boarding school despite whatever the mother may have told her of the negatives of boarding school, she appears to have developed an idealised picture described in part by the mother as based on reading Enid Blyton books. The difficulty with the idealised picture is that if it is not met, then X risks feeling as though she has let down the mother, but also that she has failed with potential corresponding effects from not successfully meeting the hurdle of boarding school
It was suggested to Dr B that X’s apparent decline in functioning between the two assessments was attributable to the court refusing to permit the boarding school, and X’s expression of being “crushed” He said it would be a contributing factor, but did not accept that it was the cause of X’s anxiety nor her difficulties with school work nor her separation anxiety.
He accepted one benefit of boarding school was that it may allow the girls to escape the conflict between the parents. When asked about the viability of the nine–five arrangement proposed by the father, Dr B observed that he had not observed this matter specifically, but that the mother’s proposal of an eleven–three split maybe easier to maintain as the status quo as the girls have been able to maintain that frequency.
Further, the girls have been exposed to separation and loss and if faced with a further experience of separation and loss it is likely to have a cumulative effect. Hence, separation and loss from the breakdown of family, should be considered cumulatively with separation and loss encountered in boarding school.
Dr B thought that the difficulties experienced by the girls in their transitioning between the mother’s and father’s households pointed to likely difficulties in their transition into boarding school. While no certainty as to the outcome of boarding school could be given, he considered that the demonstrated vulnerabilities “predicted a poor outcome” for the boarding school proposal.[16]
[16] Expert Report of Dr B dated 2 November 2022, paragraph 140.
His assessment was that the girls should not go to boarding school.
However, whilst attendance at boarding school may mitigate resentment and frustration of the father by the validation of their wishes, failure to allow boarding school risks increased frustration and resentment toward the father, in circumstances where there are already issues in the girls’ relationship.
Dr B considered that much of the girls’ reaction if they are unable to go to boarding school will turn on how it is handled by the mother. Although it was also important as to how the father was to handle it, he observed the girls have been placed into a polarising position between the parents and it was a matter of importance that whatever determination is made that both parents support the girls with the outcome. He further observed that the mother is a highly competent individual who has the capacity to support the girls, including if a nine–five split was ordered.
Dr B also considered that the girls’ response to being refused attendance at E School would be influenced by the mother’s response. He considered that it is important that, whatever the outcome, both parents support it as the appropriate outcome to the girls, even if not the outcome pursued by that parent.
He also thought that it is important that the girls understand why the court may not act in accordance with their views, and that their views were considered. He considered that Ms N (who has previous therapeutic contact with the girls) may be an appropriate person to explain the outcome to the girls.
If, contrary to his recommendations, the girls were to attend boarding school, Dr B considered that the arrangement for the equal shared holiday time may be undermined by the primary motivation of the girls to spend time on the family property with the mother. This he anticipated would make it difficult for the girls to spend half the school holidays with the father in town and half the school holidays with the mother on the family property. He anticipated that they would wish to spend the time with the mother on the family property. He further considered that as they had already voted with their feet the predicted that such may continue.
It was noted to Dr B that there is an open question as to which parent may end up living on the family property in the longer term (this being the central aspect of their property dispute), He did not consider that the same dynamics would be present for the girls spending time with the father on the family property, as opposed to spending time with the mother on the family property. He observed under the present circumstances the girls preferred to spend more time with the mother on the family property than with the father in town, and that if the family property situation were reversed, other factors would apply.
While the mother entertained the prospect of X attending boarding school in 2023 with Y following later, Dr B thought that if the girls were to go to boarding school, better to keep them together.
On balance he considered that the girls “will benefit from continuity and stability in their developmental experience rather than further disruption.”[17] This would be facilitated by maintaining their residence and schooling in the local area. He recommended against their attendance at boarding school.
[17] Expert Report of Dr B dated 2 November 2022, paragraph 137.
Dr B was further asked about the prospect of a nine-five arrangement as proposed by the father. He observed that he had not assessed this proposal (I note that this was not a proposal at the time of the assessment). Accordingly there were limitations in his opinions as to such. He however considered, as set out above, the importance of placing weight upon the girls’ views about the amount of time between the two households. He also observed that the current three-eleven arrangement has been able to be maintained (as opposed to the previous six-eight arrangement) pointing toward ongoing sustainability in a nine-five arrangement.
Discussion
The parties were agreed that there should be an equal sharing of parental responsibility, although they differed in respect of how a particular aspect of parental responsibility, being in relation to school enrolment, should be exercised, seeking that the court adjudicate that aspect of the exercise of parental responsibility.
Whilst there should be doubt about the parties’ ability to cooperate to make long term decisions in the manner contemplated by the Act, their joint position on this issue should be accepted. Despite their hostile attitudes to each other, and despite unilateral actions by the mother, particularly in relation to boarding school, their joint involvement in long term decisions is likely to be beneficial to the girls as by such a process each parent will be aware of the underpinning long term issues for the girls, which will assist in each parent having understanding of each child’s needs and the responses to those needs. Further, such an arrangement of parental responsibility will prevent future independent decision making about long term issues.
As to the remaining matters, there is no unequivocally good outcome available. There are potentially adverse consequences for the girls no matter what orders are made, and a degree of tension within the cases pursued by each of the parties.
Against a background that the girls love each parent, the mother pursues orders that the girls spend the bulk of their time with her on the family property, which she justifies as a reflection of their wishes. At the same time, her primary position of enrolment at E School will see them separated from her and the family property for extended periods, again in large part reliant on their wishes.
The father accepts that the girls should live primarily with the mother.
However, the father seeks to prevent the move to E School, in order, in part, to facilitate their relationship with him which will be rendered sparer by such an enrolment. He acknowledges that such a blocking may cause resentment against him, under circumstances that their relationships are already strained.
The competing tensions can be identified as follows:
(a)If the girls are permitted to attend boarding school, this has the potential to mitigate frustration that they hold regarding the father having prevented this to date. It may accordingly relieve pressure on the relationship with the father as the girls have their views respected and implemented in relation to this aspect.
(b)As identified by Dr B, given the girls’ views about the family property and mother, whilst the mother remains in possession of the family property there is potential for the even splitting of school holidays to not be tolerated by them. There is potential for the girls to long for a return to the mother and the family property during the school break, and for the splitting of the school holidays with the father to be unwanted, leading to such an arrangement not being adhered to, leaving the time and relationship with the father even more limited.
(c)There remains the prospect that the father will receive the occupation of the family property on the resolution of the property proceedings. While he appeared to view this as a reason for the girls to want to spend time with him, and while this may be an effect, his occupation of the family property may generate resentment. Even if this is not the case, Dr B identified that the prospect for the girls of spending time with the father on the family property differs from the prospect of spending time on the family property with the mother.
(d)If the girls attend boarding school, there is the prospect of boarding school being an adverse experience for the girls. Dr B’s view was that the girls, in particular X, have developed an idealised view of what boarding school might be, and that the experience of being separated from the mother, father, family property and other supports may lead to a poor outcome, particularly given X’s recent struggles with anxiety, and Y’s vulnerabilities. If boarding school did not work out this has the potential of constituting an ongoing setback for the girls who are already exhibiting vulnerability. Such a setback means that rather than the girls facing adversity, and prevailing and thereby building their sense of self, there is the prospect of, while already exhibiting vulnerability, that sense of self being compromised by the adverse experience of boarding school away from the supports that they so highly value. That prospect is rendered stronger by the prospect that boarding school will not meet the idealised picture developed by X.
(e)Against this, it must be recognised that refusal of the boarding school attendance not only appears to disregard the views of the girls, in ways that may be taken to be disrespectful and undermining of them, but may also be productive of further resentment and frustration with the father, further undermining their limited relationship.
(f)Similarly, the issue of the time that the girls might spend with the father if they remain in City G cuts both ways.
(g)As identified by the father, the three nights per fortnight proposed by the mother means that there is limited involvement in the day to day lives of the girls, limiting the benefits of those relationships. Further, the father describes that the problem with the current regime (which is in similar terms) is that it is not until the Sunday that the girls start to relax into his care.
(h)However, to place the girls into the care of the father for five nights per fortnight conflicts with the views of the girls, being views formed in the context of actually having spent longer periods of time with the father, and having effectively voted with their feet to bring such to an end. The longer periods are at odds with what the girls have functioned with for a now significant period of time, and there are prospects both that to apparently disregard those views is to frustrate and undermine the girls, and also that at their ages they may simply not tolerate the arrangement, particularly should they feel resentment over the boarding school issue.
FURTHER CONSIDERATION
All options carry the prospects to frustrate and undermine the girls by failing to accord with their views, or to result in a relationship of limited character with the father, the mother and other supportive circumstances within their lives.
These are difficult outcomes to weigh against each other.
The benefits of meaningful relationship with the father are currently limited by the restrictive three–eleven arrangement. Increasing that to five-nine enables substantial and significant time wherein the father can contribute more broadly to the girls’ lives, and where the girls may become more at ease in his care. However, such an arrangement counters the girls’ views and may undermine the benefits in their relationships, where there have been deficits perceived by the girls in the time with the father. Countering their views, where, at their ages and levels of maturity their views should bear significant weight carries with it further risk of deterioration of the benefits of the meaningful relationship with the father.
In the above context, in considering the time to be spent with the father, the girls’ views should be given significant weight. They have been forged in direct practical experience of time with the father. Their views that a three–eleven arrangement is desirable have been shown to be sustainable, and carries with it a lower prospect of frustration and resentment in the relationship with the father.
The views in relation to boarding school should also attract significant weight, particularly in the knowledge that failing to accede to those views may undermine the relationship with the father if they resent him as a result. However, making orders in accordance with those views more significantly undermines the benefits of meaningful relationship with the father. While he may travel to visit the girls at school, there is little to suggest that this experience would be of the nature of regular weekends in whatever home is ultimately established by the father. There is good reason to consider that even the limited school holiday time that would be available would be something readily tolerated by the girls.
Further, their views have not been forged on the basis of experience, but on the basis of an idealised view of boarding school. Those expectations are unlikely to be met, in a manner prejudicial to them in their demonstrated vulnerability. Despite careful weighing of those views, the opinion of Dr B that the girls “will benefit from continuity and stability in their developmental experience rather than further disruption” should be accorded greater weight.[18] They should not be exposed to the accumulated experience of separation and loss connected with attendance at boarding school in addition to the separation and loss that they have already experienced.
[18] Expert Report of Dr B dated 2 November 2022, paragraph 137.
Hence, having considered the nature of the relationships with each parent, the particular characteristics of the girls, the differing parental capacities of the parents, the effects of changes in circumstances, the views of the girls and the benefits of meaningful relationship as the predominant considerations, orders will be made to provide for an eleven–three split during term time, despite its limitations, and no order will be made to permit enrolment at E School. School holidays will be divided equally, even though this leads to an arrangement that exceeds three nights, as the benefits of holiday time may be seen to outweigh the girls’ reluctance.
I also consider that this arrangement is least likely to result in further litigation, as the three–eleven split is in accordance with the girls’ views, has been established to be maintainable, and I am confident that the mother is well able to cause it to continue.
An issue remains as to how the result can be communicated to the girls. There is no clear means for this to be facilitated. Despite the floating of Ms N as a potential conduit, it may be observed that the girls are neither seeing her at present, and so her suitability is not assured.
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.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 5 December 2022
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