Davison & Jenkins
[2021] FamCA 317
•20 May 2021
FAMILY COURT OF AUSTRALIA
Davison & Jenkins [2021] FamCA 317
File number(s): SYC 533 of 2017 Judgment of: CLEARY J Date of judgment: 20 May 2021 Catchwords: FAMILY LAW – CHILDREN – Parenting arrangements for two children – Where the parties entered into interim orders by consent for equal time in an arrangement requiring the children to move between the parents three or four times per fortnight – Ordered the proposal of the father for living arrangements – Ordered for the father to have sole parental responsibility for education and medical/health decisions – Other long term issues are open to the parties to determine on an equal shared basis. Legislation: Family Law Act 1975 (Cth) ss 60CC, 64B Number of paragraphs: 166 Date of hearing: 13-16 April 2021 Place: Heard in Sydney, delivered in Newcastle Counsel for the Applicant: Mr Dura Solicitor for the Applicant: Sharon Payne Family Lawyers Counsel for the Respondent: Not Applicable Solicitor for the Respondent: Self-Representing Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 533 of 2017 BETWEEN: MS DAVISON
Applicant
AND: MR JENKINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
20 MAY 2021
THE COURT ORDERS THAT:
1.That all prior parenting orders in relation to X born … 2007 (“X”) and Y born … 2013 (“Y”) (“the children”) are discharged.
Parental responsibility
2.That the father have sole parental responsibility for making decisions in relation to major long term issues concerning medical treatment/health and education of the children.
3.That the parents have equal shared responsibility for making decisions in relation to long term issues other than medical treatment/health and education.
4.In exercising sole parental responsibility pursuant to Order 2 the father shall:
4.1Notify the mother in writing of a decision to be made and the preliminary proposal of the father, if any;
4.2Invite the mother to express her opinion and to put forward any different proposal she may have within a defined period of time;
4.3Give genuine consideration to any timely opinion or proposal put forward by the mother;
4.4Notify the mother of the decision the father has made.
5.In relation to the children’s health:
5.1The father is to keep the mother informed as to the names and contact details of all medical specialists and therapists assessing or providing treatment to either of the children;
5.2The father is to notify the mother in advance of all appointments for either of the children with a medical specialist or therapist;
5.3The mother is at liberty to attend the children’s appointments with medical specialists or therapists together with the father (provided the mother informs the father in advance that she intends to do so) or otherwise is at liberty to arrange her own appointments with the specialist or therapist;
5.4Each parent is to inform the other parent as soon as practicable in the event that either child is hospitalised, or suffers a significant injury or illness, while in that parent’s care;
5.5Both parents are at liberty to communicate directly with the children’s medical specialists and therapists in relation to the children’s health;
5.6The father is to provide the mother with a copy of all written information received by him from the children’s medical specialists and therapists in relation to the children’s health; and
5.7The father is to provide a sealed copy of these orders to each of the children’s medical specialists and therapists within 7 days.
6.In relation to the children’s education:
6.1The father is to provide a sealed copy of these orders to each of the children’s schools within 7 days;
6.2The father is to do all things necessary within 7 days to authorise each child’s school to provide directly to the mother a copy of the children’s school reports and to place the mother’s name on any general parent email list;
6.3The father is to provide the mother with all information necessary to enable her to access any App used by either of the children’s schools to communicate with parents;
6.4Subject to any direction otherwise by the school both parents are at liberty to:
6.4.1Communicate directly with the staff at each child’s school in relation to the children’s education;
6.4.2Attend school functions and events to which parents are generally invited;
6.4.3Attend parent-teacher interviews (jointly or separately).
Residence
7.That the children live with each parent, unless otherwise agreed in writing, as follows:
7.1During School Terms:
7.1.1X in an equal time, week about, arrangement with changeovers to occur on Thursday commencing on the first Thursday of Term Three in 2021;
7.1.2Y with the mother from Thursday after school until Monday before school in each alternate week, and otherwise with the father; commencing on the first Thursday of Term Three in 2021.
7.2During school holidays at the end of Terms One, Two and Three for both children:
7.2.1For half the holiday period commencing in the holiday period at the end of Term Two 2021 and thereafter for the first half of the holidays with the parent whom they are scheduled to live with on the Thursday in the last week of term.
7.3During school holidays at the end of Term Four:
7.3.1On a week about arrangement in December 2021/January 2022;
7.3.2For one week with each parent followed by a two week block for each parent in December 2022/January 2023;
7.3.3For one half of the holiday period in December 2023/2024 and all Term Four holiday periods thereafter.
8.That school holiday periods be defined for the purposes of these orders as commencing at the end of school on the last day of term and concluding at the start of a school day on the first Thursday of the following term.
9.When the children are living with one parent over the Christmas period, time is suspended from 4.00 pm on 24 December until 4.00 pm on 25 December which time shall be spent with the other parent.
10.In the event that the children or either of them are living with the father on the weekend of Mother’s Day the children shall spend time with the mother from 6.00 pm on the previous evening to 5.00 pm on Mother’s Day.
11.In the event that the children or either of them are living with the mother on the weekend that includes Father’s Day the children shall spend time with the father from 9.00 am to 5.00 pm.
Changeovers
12.Unless otherwise agreed in writing between the parties, changeovers shall occur at the children’s schools on school days and otherwise at B Shopping Centre outside “C Cafe”.
Injunctions and Restraints
13.That each parent be and hereby is restrained from denigrating or making derogatory remarks about the other parent to, or within the hearing of, either of the children.
14.That within 7 days of the date of these orders, both parents are to do all acts and things necessary to obtain subscriptions to the Our Family Wizard application, and thereafter the parents are to use Our Family Wizard as the primary mode of communication regarding the children, except in the case of emergency.
15.That each parent keep the other informed of their residential address, email address and contact telephone number(s) and advise the other of any change in these details within 48 hours of such change.
Independent Children’s Lawyer
16.The Independent Children’s Lawyer shall meet with the children to explain these orders to them and to answer any relevant questions they may have, and is thereafter discharged.
17.That within 28 days of the date of these orders, the mother pay to Legal Aid NSW the sum of $6,497.25 being the mother’s contribution towards the costs of the Independent Children’s Lawyer in these proceedings.
18.That within 28 days of the date of these orders, the father pay to Legal Aid NSW the sum of $4,847.25 being the father’s contribution towards the costs of the Independent Children’s Lawyer in these proceedings noting that the father has paid the initial contribution of $1,650.00.
NOTATIONS
(A)Family Consultants have recommended that:
(i)The parties would be assisted by attending a post separation parenting course such as D Program offered by E Family Services;[1]
[1] CAPIA of Ms O dated 10/07/2017 par 52.
(ii)Each parent access therapy to enable them to resolve past grievances.[2]
[2] Family Report of Ms H dated 17/02/2020, par 99.
(B)The parties have each expressed willingness to engage in therapeutic counselling together or alone which would assist them to communicate and cooperate as parents.
(C)The father intends to arrange as soon as practicable an appointment for X to be reviewed by his paediatrician Dr F.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Davison & Jenkins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CLEARY J:
INTRODUCTION
This is a dispute over parenting arrangements for two children, boys aged 13 and eight years at date of trial. The elder boy has an attention disorder. The younger child has a developmental delay related both to receptive and expressive language and also in motor skills. He too has an attention disorder.
The parties lived together in a de facto relationship for approximately ten years before their relationship broke down in November 2016. They then lived separately in the unit which was the family home for two or three months.
On or around 27 January 2017 the father moved out of the home and into similar accommodation within the same unit complex.
On 30 January 2017 the mother filed an Initiating Application in this Court.
On 15 February 2017 the mother moved out of the family home and into the home of the maternal grandmother.
On 10 April 2017 the parties entered into interim orders by consent for equal time in an arrangement requiring the children to move between the parents three or four times per fortnight.
On 11 May 2017 the parties finalised orders in respect of property.
A wary, competitive, conflicted relationship has endured for the four years since separation, with specific adverse consequences for the children, particularly the younger child Y.
THE PARTIES
The Applicant Mother - Ms Davison
The mother is aged 44 years. She is an allied health professional. During the parties’ relationship the mother developed a consultancy business. She is not presently employed. The nature and extent of her employment up to 12 March 2021 when, as she advised this Court, she became unemployed, is unclear.
In April 2019 in an email to the father[3] the mother described herself as “unable to work since last year”. She listed a raft of diagnostic testing undertaken and consultations with a number of specialists. There was no medical evidence of a final diagnosis.
[3] Affidavit of the father filed 20/10/2020, Annexure R99.
Twelve months later in an email in March 2020 to the father[4] the mother referred to herself as “a professional currently undertaking a large amount of work related to COVID-19”.
[4] Exhibit 6.
The mother lives in the home of her own mother as do the children when they are with her. The home of the maternal grandmother is about six kilometres from the father’s home.
The maternal grandmother did not give evidence. Despite relevant efforts by the family consultant, the maternal grandmother did not participate in interviews with the family consultant. It was a deficiency in the evidence. The elder child described arguments between the mother and grandmother. The mother conceded it was so and that on one occasion her mother had asked her to leave the home “because of frustration”.
The mother has a new relationship with a man whom the children have met. The mother is not living with her new partner but described the relationship as having recently become a committed relationship.
The Respondent Father - Mr Jenkins
The father is aged 41 years.
Throughout the relationship and to date the father has worked in the finance industry. He was due to start in a new position with another employer in the week following the trial. He has worked flexible hours mainly from home[5] and will continue to do so in his new employment.
[5] Exhibit 10.
The father continues to live in the apartment in Suburb G into which he moved after separation.
The father denies any current relationship.
THE TRIAL
Trial dates were allocated for three days in November 2020 but for reasons related to the Court and not the parties, the trial could not proceed.
Further trial dates were allocated for four days commencing 13 April 2021.
On the morning of the first day of trial, counsel and solicitor for the mother sought leave to withdraw, their instructions having been withdrawn. The Court was advised that the mother had been made aware that an adjournment application would not inevitably be granted.
Leave for the lawyers to withdraw was granted.
The mother made an application for adjournment. She submitted that she had lost employment on 12 March 2021 and as a result was unable to put her lawyers in funds as agreed. There was no documentary evidence.
The mother acknowledged that no information had been provided to the other two parties until the application to withdraw was made by the mother’s counsel on that morning.
Both the other parties opposed the application.
The father was privately funded and referred to the existence of proceeds of sale available to the mother. The father wanted finality, costs if the application was granted.
The Independent Children’s Lawyer (“ICL”) submitted that the issues for the children needed to be resolved. Counsel for the ICL indicated her willingness to cross-examine the father before the mother did if the trial proceeded.
The Court advised the mother that if the adjournment were to be granted costs thrown away would likely be awarded. The mother took the decision to withdraw her application for adjournment and to represent herself.
The mother conducted herself in a considered and respectful way.
The trial concluded within the allocated time. Judgment was reserved.
THE APPLICATIONS
The mother proposed:
· That she have sole parental responsibility for the children and that they live with her;
· A change of schools for both children to schools in the local area of her mother’s home;
· Time with the father from Friday afternoon until Sunday evening each alternate weekend;
· Time on special occasions;
· Overseas travel with notice;
· No proposal for holiday time.
During cross-examination the mother conceded that the father could continue to have block holiday time; a week in each term holiday and two weeks at Christmas.
The father proposed:
· That he have sole parental responsibility for long term decisions with respect to health and medication; that other long term issues be shared equally. Provision for reporting to and consulting with mother;
· Residence with him with different arrangements for the children; week about for X, four night blocks over alternate weekends with the mother for Y and otherwise with father;
· Half all school holidays, special times;
· Communication through “Our Family Wizard”.
The ICL put forward a prescient preliminary position[6] which is repeated here in full:
X and Y are at very different stages of development and have different needs. In these circumstances, they may well benefit from separate parenting arrangements.
X has expressed a wish to continue an equal time arrangement. As Ms H opines, a week-about structure would involve less changeoever and would probably best suit X’s needs.
Neither party seeks a continuation of equal time for Y; each party seeks orders for Y to live primarily with them. One of the determinative factors in relation to Y’s arrangements will be the Court’s finding as to which parent is more capable of following professional advice and ensuring that Y’s medical/health needs are met. On the current evidence, this would appear to be the father.
There is no objective evidence before the Court in support of the children changing schools. It is difficult to see how such change would be in the children’s interests, especially when the children have only been at their current schools for 1-2 years, and Y in particular has developmental issues which are likely to affect his capacity to cope with significant change.
Given the history of intractable conflict between the parties, it would be difficult for the Court to find that an order for equal shared parental responsibility is in the children’s best interests. The question as to which parent should have sole parental responsibility comes back to which parent has the greater capacity to meet the children’s special needs. Again, on the current evidence, this would appear to be the father.
[6] Exhibit 1.
At the conclusion of the evidence the ICL put forward a Minute of Order[7] which proposed:
·That the father have sole parental responsibility in relation to health and education, with reporting and consulting provisions;
·That the elder child have an equal time arrangement, week about, and the younger child live with the father and have four day alternate weekends with the mother;
·That the parents share holidays and special occasions;
·Other specific issues.
SHORT HISTORY OF RELEVANT EVENTS
[7] Exhibit 15.
Speech therapy for Y begins April 2016
In April 2016 Y, then aged three years, began weekly speech therapy at J Hospital and an associated clinic. The father took Y to the appointments, sometimes the mother also attended.
In December 2016, when the parties separated and were living under one roof, the parties put in motion a private mediation. The mother did not wish to proceed with it. She later obtained an exemption from alternative dispute resolution on the basis of family violence.
In January 2017 speech therapy for Y began with a new therapist Ms K whom the parents had chosen jointly. The father took Y to the appointment sessions each Wednesday at 9.30 am.
On 27 January 2017 the father moved into separate accommodation. The mother raised strong objection to the father taking some of the furniture with him assisted by his sister and niece. She referred to this as coercive controlling behaviour.
The father asserts and the mother denied at trial, that she had said to him, when the father expressed his intention to move out, “If you leave I will file in Court and make your life a living hell”. Whether or not the mother said those words she must have expended extensive time in putting together the voluminous Court documents she did over the following two months.
On 30 January 2017 the mother, acting for herself, filed:
·An Initiating Application supported by an affidavit of 203 pages [34 pages of evidence and 169 pages of annexures]; and
·An application to dispense with ADR supported by an affidavit of 78 pages.
The Child Y and his paediatrician
On 7 February 2017 the father took Y to see his paediatrician Dr L. The specialist subsequently sent a report[8] to both parents.
[8] Affidavit of the father dated 20/10/2020, Annexure R5.
The report summarised Y’s progress and current therapies. He noted in summary “So we have a boy with motor, language and self-regulatory problems. They are all impacting.”
With respect to the social situation for Y the doctor noted “Unfortunately the parents have separated and it sounds fairly acrimonious at the moment”. He explained to the father that he would need permission from both parents for future plans and having reportedly spoken to the mother proposed a joint session for the seven points of discussion.
On 15 February 2017 the mother moved a few suburbs away to live with her mother in her mother’s home.
Mother contacts police - 21/02/2017
On 21 February 2017 the mother contacted police. She told police about parenting issues in this Court. The noted response, quite unsurprisingly in my view, was “it became apparent that none of these issues are of concern to police.”[9]
[9] Exhibit 5.
The COPS report further says:
The VIC (the mother) and PN (the father) are at odds in terms of making mutually agreeable arrangements in regards to time spent with their children. The VIC is frustrated and the PN refuses to speak directly to her on a regular basis, referring the VIC to contact the PN’s solicitor instead. The VIC was informed that the matters she mentioned do not fit the criteria of domestic violence. Police stated that none of the VIC’s queries require any police intervention and the welfare of the children has not been jeopardised whatsoever. Nil further action required. Record only.
(Court’s emphasis)
It must be the case that the mother considered that the unwillingness of the father to reach an agreement with her, and to respond to her directly whenever she contacted him, did constitute domestic violence. She could not have attended on police for any other reason.
Equally, it is clear that the mother did not accept that her situation was not one characterised by domestic violence, perpetuated after separation. She continued to hold that view at this trial. The mother is entitled to her opinion in that regard. However the evidence does not support such a finding. I have concluded that the mother does not see herself and her own actions as contributing to conflict and the resultant distress she undoubtedly has felt and continues to feel. She holds the father entirely responsible for those feelings.
On 10 March 2017 the mother, acting for herself, filed:
·A further affidavit of 181 pages [95 pages of evidence, 86 pages of annexures].
On 13 March 2017 the mother, acting for herself, filed:
·An Amended Application for Final Orders; and
·An Application in a Case supported by an affidavit of 27 pages seeking ex parte orders including an order for the “children to be returned to the care of the mother”.
Orders were not made ex parte, or at all, on the day of filing. The application was set down for 20 March 2017.
Complaint of assault – no charge - 14/03/2017
On 14 March 2017 an incident occurred which was closely examined during this trial. It is not in dispute that the mother asked the father, in a telephone call, to come to her residence in Suburb M the following morning to collect the younger child Y and take him to pre-school in Suburb G. The father agreed.
The next morning the father drove from his home in Suburb G to collect the child. He put the child’s stroller in the boot of the car. The mother then put her own bag in the boot and stated she wanted a lift to Suburb G. The father declined. He stated “I’m not aiding you to destroy my life. I’m just taking Y to pre-school”.
The mother then removed her bag from the boot and got into the back seat of the car with it. The parties argued, each pulling a handle of the bag in separate directions. The mother asserted her wrist was injured.
The father then took the stroller out of the boot, put Y in it, and walked to the station in the rain. He took Y to pre-school by train.
The mother rang police and reported an assault on her by the father.
Soon after the police took a statement from both parties.[10] The incident was discussed by police with domestic violence legal officers and then the assault claim was rejected.
[10] Exhibit 5.
In my view the significance of this incident is that the mother by attempting without notice to compel the father to include her in the car trip, created emotional conflict.
It may be that she did so deliberately, hoping to create an incident revelatory of domestic violence to assist her in these proceedings.
It is just as likely in my view that the mother simply wanted a lift, or the opportunity to have the father listen to her views, and had no insight at all into the effect of her actions.
I am supported in this view by the mother’s evidence during cross-examination on this incident. She said, “Mr Jenkins has never apologised to me or expressed remorse”. She was then asked if she had apologised to him. Her facial reaction was one of genuine surprise, even astonishment, as she said “no”.
Court Event - 20/03/2017
On 20 March 2017 the matter came before a judge of this Court. Orders were made for a week about pattern for three weeks during a period of adjournment.
Court Event - 10/04/2017
On 10 April 2017 the parties entered into interim orders by consent (“the April 2017 orders”) as follows:
·Equal shared parental responsibility;
·Children to live with the mother each week from Wednesday after school until Friday before school and on alternate weekends from Friday after school until before school Monday;
·Children to live with father each week from Monday after school until before school Wednesday and on alternate weekends from Friday after school until before school Monday;
·Telephone communication every second day;
·Parties not to attend school on days the children not living with that parent.
The April 2017 orders have been operative as to time arrangements for four years to date. With respect to parental responsibility, a change became necessary.
Court Event - 11/05/2017
On 11 May 2017 the parties entered into orders by consent in respect of property.
The Child X - May 2017
In May 2017 X was referred to a paediatrician in relation to attention difficulties and for hearing assessment. Both parents attended the initial appointment. X was recommended to have testing of his sight and hearing and occupational therapy.
Mother withdraws consent for therapies
Thereafter, from June 2017 the mother began withdrawing her consent comprehensively for the children to attend on their treating specialists and therapists.
In June 2017 the mother withdrew her consent for the speech therapist Ms K to see Y.
In August 2017 X had his follow up appointment and was given a referral by the paediatrician for a hearing test. His sight had been tested and revealed no deficit.
The mother did not attend the appointment. Subsequently, she contacted the audiology lab and advised that she did not give her permission for the test.[11] Her only objection to the test itself was that she saw no need for it. The more pressing objection was legal authority.
[11] Affidavit of the father filed 20/10/2020, Annexure R42.
On 29 August 2017 Y had his last appointment with his paediatrician.
In December 2017 the father was contacted by Y’s occupational therapist, Mr N, who advised that the mother had threatened legal action if he saw Y that day. The appointment was cancelled.
On 15 February 2018 the father received a voicemail message from Y’s paediatrician stating that he could not see Y or make referrals for him without a Court order.
Father files Application – 23/05/2018
On 23 May 2018 the father filed an Application in a Case proposing orders that he have parental responsibility for medical issues and in particular to re-instate instructions to doctors and therapists.
Court Event - 20/07/2018
On 20 July 2018 the father was awarded sole parental responsibility for medical issues
An order was also made for Y’s enrolment at school for 2019 to resolve the parental disagreement over which school he should attend.
Thereafter the father reinstated speech therapy and made an appointment with the paediatrician.
At the appointment on 6 November 2018 the paediatrician asked the father to consider a trial of Ritalin for Y. The father urged the mother to attend an appointment. She did not.
A trial of Ritalin went ahead.
The mother wrote to the paediatrician. He sought legal advice.
A system was subsequently devised which allowed for the fact that the child would not receive Ritalin when in his mother’s care.
National Disability Insurance Scheme (“NDIS”)
In September 2019 the father successfully made an “out of time” application for Y to receive NDIS early intervention funding; established in January 2020.
The mother declined to contribute information for the application. Her oral evidence about her reasons was “It’s in Y’s best interests for the Court to see how he [the father] is managing health medical issues”.
The response suggested very strongly that the mother thought the father’s application was poorly done and did not want to make him “look better than he was” in this trial, by contributing information at that time.
Dentist for the Child Y
In October 2019 Y was referred by the children’s dentist to a paediatric dental specialist.
In July 2020 the father attended with Y on the specialist who advised that surgery was necessary.
The father advised the mother of the required surgery. Her response attributed blame to the father for the state of Y’s teeth. The mother did not contribute to the cost ($4,600) of the work subsequently undertaken in August 2020.
EVIDENCE
The documents relied on in respect of the application were as follows:
The Applicant Mother - Ms Davison
(a)Amended Initiating Application filed 6/04/2017; superseded by Minute of Order contained in Applicant mother’s Case Outline;[12]
[12] Exhibit 2.
(b)Affidavit of the mother filed 3/03/2021;
The Respondent Father - Mr Jenkins
(c)Response filed 14/03/2017 superseded by Minute of Order contained in Respondent father’s Case Outline;[13]
(d)Notice of Risk filed 16/03/2017;
(e)Affidavit of the father filed 20/10/2020;
Reports
(f)Family Report of Family Consultant Ms H dated 17/02/2020;
(g)Children and Parents Issues Assessment (“CAPIA”) of Family Consultant Ms O dated 10/07/2017.
[13] Exhibit 3.
THE LAW
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration.
The way a court determines what is in a child’s best interests is by considering the list of matters set out in s 60CC(2) and (3) of the Act.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Relevant considerations under Section 60CC(3)
Views of children
The Child X[14]
[14] Family Report of Ms H dated 17/02/2020, pars 58-64.
X was assessed by the family consultant as a quiet, conversational boy, loyal and loving towards both of his parents. He said he would not like to be with one parent longer than the other. That was consistent with the view he expressed in mid-2017 to a prior family consultant in the CAPIA.
On that occasion, he said he would not like to live primarily with one parent and spend alternate weekends with the other, “this would not be enough time for him to spend with both of his parents”.[15]
[15] CAPIA of Ms O dated 10/07/2017, par 30.
In February 2020 when X was interviewed he had just started high school. He was aware that his mother wanted him to change schools and that his father wanted him to stay where he was. He understood that as a result one of his parents “will not win while the other will be happy.”[16] An astute observation by a 12 year old.
[16] Family Report of Ms H dated 17/02/2020, par 63.
X was apparently sanguine then about changing schools. He may be still, but there is no evidence before me of a positive benefit to such a change. There may have been a logistical benefit if the mother’s proposal of twelve days per fortnight with her was to be implemented but otherwise there is no basis for preference by the Court between two State high schools within six kilometres of each other.
Reflecting on the parenting arrangement put in place by his parents in 2017 X said, unsurprisingly, that “one of the main problems is the number of times he moves from house to house which sometimes means he forgets ‘things’ (pens and pencils)”.[17]
[17] Family Report of Ms H dated 17/02/2020, par 61.
When asked about a change to equal time X commented that it would be “more efficient and easier to remember where he will be from one day to the next”.
He also referred to being stranded without a uniform, usually for sport, when one parent or the other “insist on not packing one”.
The family consultant was told during cross-examination that the father was putting forward different arrangements for each child, proposing week about time for X and four nights per fortnight with the mother for Y. The family consultant was also told the reasoning of the father, that X himself had asked for some time away from Y and also because the father considered that X was growing up and wanting to make choices for himself.
The family consultant considered that week about was preferable to constant changes. For X she thought it would bring clarity and that he would understand each household doing its own thing, a form of parallel parenting.
I accept, and agree with, that view which reflects the strong wish of X to be with both parents; his personal and developmental need to have more stability, fewer changeovers and also a short break away (three nights per fortnight) from his younger brother.
The Child Y[18]
[18] Family Report of Ms H dated 17/02/2020, pars 65-70.
Y was assessed by the family consultant as a friendly, bright, energetic child. She noted a significant delay in speech and gross motor skills for Y, that he was active but physically somewhat uncoordinated. His focus was on activity rather than conversation.
When the family consultant mentioned the topic of school, Y said he “wished to change schools” then added “Mum wants to change schools and I think it’s OK to change”. He gave his reason that a school with fewer students would be better. That is the basis for change raised by the mother.
His willingness to change schools and even more so the reason given is almost certainly prompted by the mother telling Y what she wanted to happen, perhaps so he would repeat it to the father and/or the family consultant.
Y chose free play and drawing as the things he enjoyed about school. That is likely to be the case at his age and level of development wherever he attended school.
Y was not sure what the father thought about where he should attend school. It must be the case that the father, to his credit, had not spoken to Y on the subject.
Y created the impression for the family consultant that he enjoyed living in each of his parent’s homes, nevertheless the family consultant expressed a clear view in cross-examination that the mother’s proposal for 12 nights per fortnight with her/away from the father, would be damaging for Y, “he needs his relationship with his dad to remain firm. It would affect his development (to spend only two days per fortnight).”
The ICL expressed some concern about Y’s time with the mother reducing by three nights per fortnight with Y spending ten straight nights with his father, but ultimately not opposition.
I note that in the CAPIA interviews in 2017, four and a half year old Y thought that both parents looked after him well. He was observed to have a close relationship with his father and there was this conversation with the family consultant:
When asked what made him happy, he said “Daddy”. When he was asked what made him feel sad, he said “with Mummy because I would like to stay with Daddy for a few more days.[19]
[19] CAPIA of Ms O dated 10/07/2017, par 233.
In my view there is an obvious health and developmental benefit to the child in having consistent therapy and prescribed medication as needed which he will receive in the father’s care. In addition, the identification by the family consultant of the emotional reliance of Y on his relationship with his father satisfies the Court that he will cope with a little less time with the mother and thrive overall in the arrangement proposed by the father.
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 parties have fought bitterly over child support. The self-employment of the mother and a failure to lodge tax returns was part of the dispute.
An objection by the father to an assessment was successful.[20]
[20] Exhibit 9.
Each has maintained the children whilst in their care although there have been relevant arguments about return of clothes and uniforms.
A fresh assessment is inevitable given there will be a change of parenting arrangements.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The parties are intelligent, educated people who value education for the children to whatever level each one can achieve.
The mother’s decision to withdraw her authority for the children to attend on therapists and doctors represents a limitation on her capacity as a parent. There was an immediate and ongoing adverse consequence for Y who was due to start kindergarten eighteen months after this decision of the mother. He would have benefited from ongoing therapies, particularly speech therapy, in order to make the best possible transition to school.
The mother acknowledged the issue “in hindsight I was wrong to withdraw my consent. I did not consider the impact this might have.” The mother’s wish to be vindicated as the better carer and decision maker blinded her to the needs of the children. The Court cannot assume that the implacable attitude of the mother over a long period of time, would not recur if the mother had, or shared, parental responsibility.
The father appears to have a more relaxed child centred style. The mother has a more disciplined approach. They both respond to the children emotionally. The father seems to be more attuned to the children as individuals.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The Child X - aged 13 years, Year 8
In May 2017 X, then aged nine years, was referred to a paediatrician, Dr F, in relation to attention and or hearing difficulties.
He has difficulty with handwriting and formal English. He favours art, science and technology.
The Child Y - aged eight years, Year 2
Y was initially diagnosed with Pervasive Developmental Disorder. That diagnosis has since been replaced with Dyspraxia and Attention Deficit Hyperactivity Disorder.
In 2016, at age three years, Y began weekly private speech therapy as he was not speaking. Soon after he was referred to a paediatrician, Dr L, who has since retired. Appointments were made and subsequently attended.
Dr Q has taken over as Y’s paediatrician since 2019 and is well known to the child.
Most unfortunately, especially for Y, whose difficulties are greater, treatment was disrupted in mid-2017 as a direct result of the mother withdrawing her consent for the treatment to continue.
Y missed 15 months of early childhood intervention treatment between mid-2017 and August 2018. The Court made an order for the father to have sole parental responsibility for the health of the children. Consultation and treatment resumed.
Further, Y presently takes prescribed medication in the care of the father but not when in the care of the mother.
Since November 2019 Y has received support through NDIS for physiotherapy, behavioural, speech and occupational therapy. The father made the application and asked the mother to contribute her observations of the child. I note that the mother refused to report her observations of the child. She conceded that her motivation was “not to make the father look better than he really is”. This was a failure to give priority to the child’s needs over her own need to prevail in these proceedings.
Y is now in Year 2. The family consultant commented during cross-examination that her expectation was that Y would require speech therapy and physical therapy for “many years to come”.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
I conclude that the mother has been fearful that everything she says and does would end up in an affidavit, would be used in this litigation. She became increasingly oppositional to whatever the father suggested. She would not agree to any assistance to improve communication, “I will not co-parent through a third party.” I accept that the mother has suffered as a result of poor communication between the parents. So have the children.
The worst aspect of this is the mother withdrawing her consent for therapy because she felt that there had been insufficient consultation with her and acknowledgement of her role as the children’s mother.
My impression is that the mother believes that she was the primary carer of the children, that she has better qualifications through her training as an allied health professional to assist the children and that the father has usurped her natural role as mother.
Further, by persisting with her original application, first made in January 2017, for residence with her and alternate weekends (two nights) with the father, she has created an impression for the Court that she wants to start again, from the beginning, with an arrangement that gives her primary care and control over health, education and activities.
Such an approach ignores the harm done by her frustrating ongoing therapy for Y and also the potential harm to the children of cutting back so radically on time with the father.
The mother was quite unable to accept the proposition put to her that she and the father are both good parents with different ways of going about the business of parenting.
I am also satisfied that the father has been fearful since separation that the mother would somehow successfully establish that he was the perpetrator of family violence. His evidence is that a police officer advised him never to allow himself to be alone with the mother and he has taken that advice.
Further, the father has been careful to confirm by email all that needs to be communicated. He has wanted to use an app to communicate. He has wanted third party assistance to establish an efficient system of communicating as parents. The mother has declined.
His refusal to greet the mother at changeovers reflects his determination not to be drawn into argument. It hurts and disappoints the children, especially X.
Any family violence involving the child or a member of the child’s family, and 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
There have been no family violence orders. Objectively there has been no family violence.
The mother alleged that the father had subjected her to coercive and controlling behaviour, emotional and financial abuse.
The father alleged that the mother rang police to ask for welfare checks on the children unnecessarily and was committed to proving that he was a perpetrator of family violence.
The subjective views of each party about the conduct and intentions of the other are starkly different. Each expresses fear of the consequences of the actions of the other.
During the relationship the parties argued extensively.
Post-separation there was voluminous email exchange. The mother felt overwhelmed by the father doggedly documenting events and the reasons for decisions.
The conflict is now revealed by silence between the parties on the infrequent occasions when the children see them together.
Any other fact or circumstance that the court thinks is relevant
The issue of passports for the children was raised for the first time in submissions. The context was future overseas school excursions foreshadowed for both children.
No application had been made by the father with regard to passports and overseas travel.
The mother proposed that she have authority to obtain passports for the children which would remain in her possession. She further proposed that both parents be free to take the children overseas for holidays provided the country of destination was a member of the Hague Convention.
In future, either or both parties might contemplate an overseas holiday with the children.
If either party wishes to obtain passports for the children that parent should submit the application to the other for their consideration and signature. Unless there is a genuine reason for it, consent by the other party should not be withheld.
In the event there is no consent the moving party could make a relevant application to this Court on that specific issue.
If consent to the passport was found to have been unreasonably withheld, a costs order against the resistant party would seem inevitable.
Parental Responsibility
There is a presumption when making a parenting order that it is in the best interests of children for the parents to have equal shared parental responsibility for the children. The presumption does not apply if there are reasonable grounds for the Court to find that a parent has abused a child or exposed a children to family violence.
The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the children in question.
On 20 July 2018, after a contested hearing, orders were made in this Court for the father to have sole parental responsibility for medical issues.
An order was also made compelling the parties to enrol Y in the school which he presently attends, unless otherwise agreed.
That order enabled the father to restore therapeutic assistance for Y which he did, and to enrol him for Kindergarten.
This trial revealed that the issues of therapeutic services and which school the children should attend were still highly contentious.
The application of the father to maintain sole parental responsibility on a final basis for medical and educational issues is supported by the ICL and in my view continues to be necessary to ensure continuity of treatment and education for both children.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
Both children have meaningful relationships with each parent and will benefit by maintaining those relationships.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
The children have been exposed to parental conflict but not to abuse or family violence.
CONCLUSION
I have concluded that the proposal of the father for living arrangements is in the best interests of each of the children.
An order for the father to have sole parental authority for education (in addition to medical /health decisions) will put an end to the possibility, alive in the minds of both children, that they might have to change schools.
Other long term issues, if any, are open for the parties to determine on an equal shared basis.
I certify that the preceding one hundred and sixty-six (166) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 20 May 2021
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Consent
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Injunction
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Costs
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Procedural Fairness
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