Dennis and Dennis
[2009] FMCAfam 665
•29 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DENNIS & DENNIS | [2009] FMCAfam 665 |
| FAMILY LAW – Parenting – issues relating to father’s time with the children including the distance between the parents’ home – the parents’ respective roles in decision making about the children’s health, education, travel and accommodation – the need to achieve a balance between unnecessarily restricting the mother’s lifestyle choices and ensuring that the needs of the children are met. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Chappell & Chappell (2008) 39 Fam LR 627 Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR DENNIS |
| Respondent: | MS DENNIS |
| File Number: | SYC 5373 of 2007 |
| Judgment of: | Walker FM |
| Hearing dates: | 6, 7 & 8 April 2009 |
| Date of Last Submission: | 1 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Self represented |
| Solicitors for the Applicant: | Self represented |
| Counsel for the Respondent: | Ms O’Bratovich |
| Solicitors for the Respondent: | Conditsis & Associates |
THE COURT ORDERS THAT:
All previous orders relating to parenting matters between the parties (to be referred to as the “parents” in these orders) are discharged.
The parents are to have equal shared parental responsibility for the children, X born (omitted) 1999 and Y born (omitted) 2001.
The children are to live with their mother and spend time with their father which, unless the parents otherwise agree, shall be as set out in the following orders.
Time with the father during school term
The children are to spend three out of each five weekends with the father being weekends 1, 3 and 5 in a five week cycle which shall continue on the basis of the existing pattern. Such weekend time is to commence at 7.00pm on the Friday and end at 4.00pm on the Sunday. Weekend time is suspended during school holidays and the five weekly cycle shall commence on the first weekend following each school holiday period.
Mid term school holidays
(a)Easter school holidays (or the holidays closest to Easter): the children are to spend the first half of the holidays with their father in odd numbered years and the second half in even numbered years.
(b)July school holidays: the children are to spend the whole of the July school holidays with their mother in 2010 and in each even year after that and with their father in 2011 and in each odd year after that. However, should the mother provide the father with notice at least two months prior to the commencement of the July school holidays that she would like the children to spend a nominated week of the July school holidays with her at a time when they would otherwise be with their father, the father is to make the children available for that time with their mother and the mother is to make the children available for the equivalent week (ie the first or second week of the holidays) with their father in the immediately following September/October school holidays.
(c)September/October school holidays: The children are to spend the whole of the September/October school holidays with their father in 2010 and each even numbered year after that, and the whole of the school holidays with their mother in 2011 and each odd year following that, subject to the provisions set out in order 5(b) above.
Christmas school holidays
(a)In years where the Christmas school holidays commence in odd numbered years the children will spend time with their father during the Christmas school holidays commencing from 7.00pm on the last day of school until 10.00am on the Sunday two weeks before the conclusion of the school holidays.
(b)In years where the Christmas school holidays commence in odd numbered years the children shall spend time with their mother from 4.00pm on 24 December to 4.00pm on 26 December.
(c)In years where the Christmas school holidays commence in even numbered years the children shall spend the second half of the Christmas school holidays with their mother. Such half is to be calculated from the time of the conclusion of school on the last day of the term.
Special days
In the event that Mother’s Day falls on a weekend (the “Mother’s Day weekend”) during which the children would not otherwise have spent time with the mother under these orders, the children shall remain with the mother on the Mother’s Day weekend and spend time with the father, by way of compensatory contact, on the next available weekend which would have ordinarily been spent with the mother under these orders and, following such compensatory contact, the pattern of weekend time that the children spend with each parent will then revert to the usual arrangement under these orders.
In the event that Father’s Day falls on a weekend (the “Father’s Day weekend”) during which the children would not otherwise have spent time with the father under these orders, the children shall spend the weekend with the father on the Father’s Day weekend and spend time with the mother, by way of compensatory contact, on the next available weekend which would have ordinarily been spent with the father under these orders and, following such compensatory contact, the pattern of weekend time that the children spend with each parent will then revert to the usual arrangement under these orders.
For the purpose of all periods of time the children shall spend with the father, he or his nominee shall collect the children from (omitted) McDonalds at the commencement of the time he spends with them and return them to (omitted) McDonalds at the conclusion of the time he spends with them.
(a)The father is to provide X with credit for her mobile telephone and the parents shall ensure that X has her mobile telephone with her and switched on between 6.00pm and 8.00pm on Wednesdays and Saturdays so that the children are able to have telephone communication with the parent with whom they are not spending time.
(b)As well as the times provided for in 10(a) the children are to have telephone communication with the parent with whom they are not spending time at all reasonable times and each parent is to facilitate the children telephoning the other parent when either child expresses a wish to do so.
(c)In the event of an emergency the parent with whom the children are spending time shall take all reasonable steps to facilitate telephone contact between the children and the other parent.
(d)In the event that either parent is unable to contact the children on X’s mobile phone, that party is permitted to contact the children on the other parents’ mobile number.
Neither parent is to change the school enrolment of either of the children, including enrolling either child in a High School without the written consent of the other parent.
Neither party is to take the children out of school for any holiday or any other purpose, other than illness supported by a medical certificate, for a period of more than 7 days without the written consent of the other parent and the approval of the school which the children are attending.
The mother shall do everything reasonably possible to ensure that the children attend school on each school day and arrive at school each day prior to the marking of the roll and commencement of school.
The parties shall request and authorise the school attended by each of the children to communicate with both parents and in particular to:
(a)Provide a copy of school reports and school newsletters direct to each parent.
(b)Advise each parent directly of parent/teacher meetings and school functions such as open days, fetes and award functions.
(c)Provide attendance records for the children to either of the parents upon request.
Each parent shall encourage and facilitate the children participating or attending as many normal school activities as they request to be involved in, including but not limited to school camps, excursions, sports and cultural activities and the parents shall authorise the school to provide the father with details of such events and forward any invoices for such events directly to the father.
The parents shall encourage and facilitate the children in participating in as many extra curricular activities and/sports as the children may request and which are reasonably practicable for them to be involved in and that neither parent shall enrol the children in any such activity during periods when the children are to spend time with the other party, unless the parties jointly agree.
(a)Unless the parties agree otherwise, each of the parents is restrained from taking the children to any general medical practitioner or any general medical practice apart from those specified below in order 17(b) and 17(c) or nominated by each of the parties in accordance with order 17(d) and 17(e), except in a case of emergency. Each parent is to inform the other of any emergency consultation within 24 hours.
(b)The practice of Dr M or doctors working in his practice.
(c)The (omitted) Medical Centre.
(d)An additional practice nominated by either party within 21 days of the date of these orders.
(e)Any further medical practice nominated by either of the parents in place of the practices referred to in orders 17(b), 17(c) and 17(d) should circumstances arise which cause it no longer be practicable for a parent to attend the practices specified, or nominated, in accordance with this order. Such nomination shall be in writing to the other party within 21 days of the changed circumstances arising.
Subject to order 19 each of the parents is restrained from further restricting the diet of either of the children beyond that deposed to by the mother in paragraph 403 of her affidavit sworn 30 June 2008, filed on 1 July 2008.
The parents shall not place the children on any diet or restrictive food course or any form of treatment, educational therapy or psychotherapy or have any medical assessment undertaken, including for (omitted), without the written consent of the other parent and, in the event of agreement, the parents shall jointly approach a doctor, therapist or other professional to discuss the necessity for, and course of, such treatment prior to its beginning and will take such steps as are necessary to ensure that the treatment is in accordance with the recommendations of the doctor, therapist, or other professional.
Each parent shall inform the other in writing no later than 21 days before any change in the residential address of that parent is proposed to take place, and shall provide the other parent with details of the new address.
Each parent is to keep the other informed of any change in mobile telephone number.
Each parent is restrained from denigrating the other parent in the presence of the children.
All communications between the parties are to be conducted by email or text messages or by a communication book except in the case of urgency, as provided for in order 10(d), or as otherwise agreed between the parents.
The father may authorise his wife, Ms P, to represent him in dealings with the children’s school, at changeovers for periods of time the children spend with him, and to attend medical appointments if he is not available.
The mother is to use her best endeavours to ensure that the maternal grandmother is not present when the children are collected to spend time with the father or when they are returned from spending time with him.
Should the parents fail to reach agreement about any of the matters referred to in these orders, or any other significant matters relating to the welfare of the children, including overseas travel for either of the children, the parties are required to attend counselling with a community based counselling service or mediation service to attempt to reach agreement prior to instituting legal proceedings.
The father’s Contravention Application filed on 29 January 2009 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Dennis & Dennis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5373 of 2007
| MR DENNIS |
Applicant
And
| MS DENNIS |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents in this matter have two daughters, X aged 10 and Y aged 8. They have been involved in Court proceedings since late 2006 in relation to their dispute about how the children should be raised.
The parents have quite different approaches to raising children. They have very different personalities.
Even though there is no dispute that the children should live with their mother and that the parents should have equal shared parental responsibility for them, each of the parents proposes in excess of forty orders that the Court should make at this time. The matter was previously listed for final hearing on 8 July 2008. On this occasion after lengthy negotiations the parties reached agreement on 51 orders that addressed a range of issues of concern. In some ways the intervening period has been an opportunity to trial those orders and this was foreshadowed in the orders. The father says the orders have been working reasonably well and that he wants to make some limited changes. The mother wants more significant changes which the father says will “roll back” the agreement reached in 2008. The mother believes that the father is attempting to control the way she conducts her life. The father believes that the mother’s decisions do not always reflect the needs of the children.
The significant issues in dispute are as follows:
·The children’s time with the father during the week and during school holidays.
·How decisions should be made about the children’s schooling and in particular whether the consent of both parents should be required before any change to the children’s present school enrolment.
·Travel plans and whether, or for how long, the children should be taken out of school to go on holidays.
·How decisions should be made about the medical care of the children and in particular whether the parties should be restrained from arranging for the children to attend consultations with medical practitioners other than those agreed by both parents.
·The mother’s desire to have X assessed at the (omitted) Clinic for the possible provision of coloured lenses.
·Whether there should be minimum standards for accommodation of the children specified in Court orders.
·The father’s communication with X by mobile phone.
·The children’s diet has been an issue in the past. The father nominates it as a continuing issue although it appears that the parties do not seek essentially different orders about diet.
Short history
The parents who are both aged 38, married on (omitted) 1995. X was born on (omitted) 1999. Final separation occurred on 6 March 2001, prior to Y’s birth on (omitted) 2001.
In December 2001 the parties consented to property orders by which the family home at Property R was transferred to the mother. She subsequently sold the property and bought a villa at Property U on the (omitted). The mother has moved her residence on a number of occasions since then. She presently resides in the home of her parents at (omitted). The father has continued to live in Sydney.
The father commenced a relationship with Ms P in September 2001. They have since married and they were expecting their first child in (omitted) 2009.
The evidence
Three Reports have been prepared in the matter - report by Ms B released on 29 April 2008 - report of Ms M dated 19 May 2008 and report of Mr L dated 31 March 2009. None of the writers of any of these reports was required for cross examination.
The mother relied on an affidavit she had sworn on 30 June 2008 and 16 March 2009. She also relied on affidavit sworn by Ms L sworn on 30 June 2009 and Ms K sworn on 30 June 2009.
The father relied on his affidavit sworn on 16 March 2009. Ms P had sworn an affidavit. However, Mr Dennis who was unrepresented in the proceedings, preferred to have her assist him at hearing and did not rely on her affidavit.
The Relevant Law:
Section 60B sets out the objects and principles of the Act. An important object of the Act is 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 children.
Section 60CA provides that the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order.
Section 60CC sets out the matters which the court must take into account in determining what is in a child’s best interests.
Primary Considerations
Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child's parents
The three reports agree that the children have a good relationship with both parents. The mother has been the children’s primary carer. However the reports consistently confirmed their attachment to their father despite the fact that he had not been part of their household since X was very young and that separation took place before Y was born. Ms M’s opinion was that the girls’ primary attachment was most likely to be with their mother as she has been their caregiver since birth but also noted that “their attachment to their father appears strong.” Mr L said that it was apparent that “they have close relationships with the significant adults in their lives and it was not possible to discriminate between the parents in terms of the level of affection the children have for each.”[1] The Court has no difficulty finding in this matter that the children have a meaningful relationship with each of their parents and benefit from that relationship.
[1] Family Report by Mr L dated 31 March 2009 at paragraph 30.
The mother has travelled with the girls for a continuous period of several months in the past. She told Mr L when she saw him that she wanted to live in (omitted) with the children for up to a year and a half beginning in 2010. At hearing she said she did not presently intend to move to (omitted) but did not know what her plans would be in the next year or in the next few years. The mother’s prior travel with the children was one of the factors which led the father to institute the proceedings. He says that it is possible that if not restrained, the mother could take actions which would result in the children being able to see much less of him and which accordingly would be detrimental to the meaningful relationship which he presently has with his daughters.
The orders sought by each of the parties will be considered in the context of the Court finding that the children benefit from a meaningful relationship with each of their parents and that they should continue to benefit from that relationship.
Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are no issues about this in this matter. The father asserts that there is a potential risk of harm to the children if orders are not made about specific matters including accommodation, medical care and education. These matters are more appropriately considered as aspects of the capacity of the children’s parents to provide for the needs of their children.
Additional considerations
Section 60CC(3)(a) requires the Court to consider any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
The children were interviewed by Mr L on two occasions in late March 2009. He described Y as a polite and intelligent 7 year old and described X as displaying a positive and pleasant manner. The girls spoke positively of each of their parents. Y said that she has “fun” with dad on the weekends and that when she is with him she does not miss her mother and that when she is with her mother she does not miss her father. X reported that she enjoys visiting her father on weekends and going to the beach and participating in “nippers.”
The mother and children were living at Property K when the interim orders were made in July 2008. Previously the children had been home schooled and this was a matter of considerable conflict between the parents. The orders provided for the children to attend (omitted) Public School which was about a 10 minute car trip from the Property K address. Subsequently the mother moved to the home of her parents at (omitted) which she says involves a 40 minute trip to (omitted) Public School. She seeks orders that rather than specifying which school the children attend, would require only that they be enrolled by her in a school local to where they live. She therefore wishes to be able to change their school closer to where she lives or decides to live.
Y said she did not wish to change schools because all her friends were there at her present school. She did not complain about the length of the car trip. X told Mr L that she is in year 4 at school and that she is happy at (omitted) School. She told him that she likes most of the people there and likes to do Maths and Art but is not good at English. She too did not complain about the length of the trip to school. She recalled being at (omitted) school which she had attended before the mother commenced the home schooling program and said “it was good” there too.
The views of the children are consistent with the findings about their relationships with their parents. It is significant in view of the orders that the mother seeks about the children’s school that they each say they are happy at (omitted) School. The children have not expressed views about certain of the other matters in dispute between their parents. This is understandable in the context of this matter. X at least was aware of the different lifestyle preferences of her parents. She observed to Mr L that her parents were different and that her mother liked outdoors and camping but that her father did not.
The children’s views would not support a reduction of time with their father. The Court considers that this is something to which weight should be given, especially as Mr L says that the children are benefitting from the present weekend schedule with their father and in his view nothing emerged to justify a reduction in that program. The mother submitted that her proposal did not constitute a reduction in the children’s time with their father. This will be discussed later in the judgment.
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons including any grandparent or other relative of the child
The children’s relationship with their parents has been discussed. Other important people in their lives are Ms P and members of their respective families. The children have known Ms P, the father’s present wife, since they were very young. The mother agrees that they have a good relationship with her. Ms M’s observation was that the girls appeared to have a particularly warm relationship with Ms P. Mr L’s observations supported this.
Both parents involve the children with their extended families and say that the children enjoy these family relationships. The children reported to Mr L that they feel loved by their parents, their step mother and by their grandparents. The Court would have no difficulty finding that the children, as well as having good relationships with their parents, have a good relationship with their step mother and other members of the extended family of each of their parents.
Section 60CC(3)(c) requires the Court to consider the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Mr L identified the different personalities and expectations of the parents as significant elements in the dispute between them. He saw the mother as valuing an “alternative lifestyle.” He described the father was “clear, assertive, precise and traditional.” There is no doubt that these differences are reflected in the parents’ views about a number of issues about which they cannot agree.
The dispute between the parents escalated in 2006. Earlier, in mid 2005 the mother placed the girls on an elimination diet because of concerns she had about their health and behaviour. At the end of 2005 she told the father that she intended to home school the girls. A letter from the father’s solicitor dated 30 November 2005 noted that for most of the previous four years, arrangements for the father to see the children had worked reasonably well but referred a recent “disruption of contact visits.”[2] The letter referred to issues about home schooling, health and diet. In mid 2006 the mother raised with the father her desire to take the children on a lengthy holiday in a caravan. The father instituted proceedings and on 6 December 2006 interim consent orders were made for the father to spend time with the children during specified periods from December 2006 to June 2007 when they were travelling with their mother. The father was to spend alternate weekends and part of school holiday periods when the mother returned to the (omitted). These orders also provided for a report from an educational psychologist to consider the children’s education development, and in particular, the home schooling program prepared by the mother. The further interim orders of July 2008 increased the father’s time with the children.
[2] Annexure H to the father’s affidavit sworn 16 March 2009
The father says that the interim orders of July 2008 have resolved issues about the time he spends with the children and that both parties have been adhering to the times the children spend with each parent. To that extent he does not raise as an issue about the mother’s willingness and ability to facilitate and encourage a close relationship between himself and the children. At the same time he raises issues about the mother’s wish to travel and the potential impact that could have on his relationships with the children. The conclusion of Ms M was that at least until the mother made the decision to travel with X and Y, both parents had managed to facilitate a positive relationship between the children and the other parent. The father in his submissions did not disagree with this. The Court finds that the mother has been ready to facilitate a relationship between the children and their father in the past.
At the same time, the mother’s preference for a less planned life style, where she can have the flexibility to follow her own interests, which can mean not being tied to a particular location does, although she may not explicitly recognise it, adversely impact at times on her ability or willingness to facilitate and encourage a close and continuing relationship between the children and their father. This is evident in the history of recent years with her 2006 travel plans and of course as recently as March 2009 when she told the family reporter of her plan to spend 18 months in (omitted). The father said he had no knowledge of this proposal.
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living)
Neither of the parties has proposals before the Court which would result in any significant separation from the other parent. The mother says she has abandoned her plan to move to (omitted).
Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The Court finds that the circumstances that the mother resides on the (omitted) and the father lives in Sydney are relevant to the proposals of the parties about arrangements for the children to spend time with their father during term time. The father says that because of the distance involved it is not possible for him to be involved in activities with the children during the week. The practical difficulties caused by distance need to be taken into account in a consideration of the proposals of each of the parties for the time they will spend with the children.
Section 60CC(3)(f) requires the Court to consider the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child including emotional and intellectual needs.
Although the Amended Application which the father filed on 2 June 2008 sought orders that the children live with him, the father is no longer seeking these orders.
Nevertheless he raises issues which would question the mother’s capacity to provide for the emotional and intellectual needs of the children. In particular, the father says the mother has “a pattern of moving houses and wanting to travel” and does not focus on the children’s needs.
After the property settlement the mother sold the former matrimonial home at Property R and moved into her parents’ home for a short time and then used the proceeds of sale of the Property R home to assist in the purchase of a 2 bedroom villa at Property U. The father says that the mother did not consult him about moving with the children to the (omitted). The mother lived in the Property U. villa for four years. She then travelled with the girls up the northern coast of New South Wales in October and November of 2006. In December she collected her caravan and lived in it with the girls in a number of locations around the (omitted) till the end of January 2007. She then travelled down the south coast and to Victoria and came north to Sydney around the end of March. For a couple of months she stayed at (omitted) on the (omitted) and then moved the caravan to some other locations in the (omitted) area.
The mother spent some considerable time at (omitted) on the (omitted) and liked the area which she said was the reason for the move to nearby Property K. The mother moved into a property at Property K in October 2007 and stayed until November 2008 when she moved back to her parents’ place where she currently resides. The children live in that house with their grandparents. The mother sleeps in the caravan which is parked at her parents’ property. The mother says she will not remain indefinitely at her parents’ place but says she does not know when she might move. When asked if she intended to move in the next 12 months she said she could not say. She said that she had no specific plans for the next 12 months, or for the next five years or ten years. When asked if she considered that such moving was disruptive for the children she replied “no.”
The mother says she does not intend to move back into the Property U. two bedroom villa which she owns because it is too “cramped”. She explained what she meant as being too cramped was that the children did not have enough space to play freely “without being burdened by having to be too concerned about somebody who lives close.” She said the children might be noisy and disturb elderly people living close by. She said the children had more room to explore in caravan parks and said that she had always fancied the idea of “living in a big barn that has a loft bedroom upstairs.”
She has, however, given consideration to moving to a granny flat or other small accommodation with the caravan annexed to such a property and says such an arrangement could mean that she would be able to afford to reside closer to (omitted) School.
Ms M noted in her report that the father was willing to agree to the children remaining living with their mother if she agreed to send the children to school instead of continuing to home school them. She was therefore of the view that the father appeared to be primarily concerned about his children’s education and did not appear to be requesting that the children live with him because of any major concerns about the mother’s care of the children. While home schooling remains a preference for the mother, she accepts that she will not be able to home school the children. Decisions about schooling however remain an issue between the parties.
X was enrolled at (omitted) Public School in kindergarten in 2004. When she was in year one, she was placed in the lowest literacy group with school reports indicating very elementary skills in that area. The report of Ms B, a psychologist with qualifications in special education, focused on the educational progress and needs of the children. She reported that by the end of December 2005 the school had noted that X had improved in all key learning areas except for writing skills.
Based on school reports Ms B referred to X’s absence from school for 25 full days and her partial attendance on 70 days. The mother disputes the precise figures but there seems little doubt that X’s attendance record was not ideal. The mother decided that X’s needs were not being met in the formal school system. She says she was concerned about X’s difficulty with literacy, that X appeared to be enjoying school less and developed tics. X also developed psoriasis, a skin condition suffered by the mother. Towards the end of 2005 the mother made an application for X to be home schooled. She acknowledged that she did not speak with the father about this before the application was forwarded to the Board of Studies. She said that she and the father were in dispute about the elimination diet which she had commenced around that time for the children.
Y was not enrolled in school but was commencing home schooled when she reached school age in 2007 and continued in home schooling in 2007. The father says he was not informed of the mother’s intention to commence Y in home schooling.
Testing conducted by Ms B indicated that at the time of the preparation of her report, X’s basic reading skills were in the average range but that her spelling and writing skills were significantly delayed.
The mother referred to Y as having some behavioural problems although Ms B’s assessment was that she did not have any more behavioural problems than might be expected of girls of a similar age. Ms B concluded that Y presented as a well adjusted girl who was bright and articulate. During assessment no difficulties with attention skills were apparent according to Ms B. She observed Y to become quite excited, particularly when she was successful at a task and considered that this excitability could be misinterpreted as an attention problem.
Ms B’s assessment was that X’s educational difficulties had not been adequately addressed at home. She concluded that the mother was keen to provide the best for her children but found the mechanics of teaching literacy difficult. Ms B thought that X had had stress resulting from experiences at school but that “the belief that stress is reduced by avoiding areas of difficulties such as writing is in fact more likely to produce stress in the long term.”[3] Her opinion was that children such as X need “considerable structure in order to achieve” and that this structure was “not evident with the type of experiential learning that underpins Ms Dennis philosophy.”
[3] Report of Ms B released 29 April 2008 at page 15.
The availability of special programs at particular schools was discussed with the mother by Ms B. There were two schools near the children’s home, (omitted) Public School and (omitted) Public School. Ms B recorded that the mother indicated some preference for (omitted) Public School but that as she did not live within the dedicated zone, attendance at the school would require a special application. Ms B commented that (omitted) School had two (omitted) Learning (omitted) who provided interventions dependent on need, for children in year 1 to 3 in group settings, although the groups were quite large. She noted that Property K had one position of an (omitted) dependent on need. Ms B also commented on facilities for support of children with learning difficulties at (omitted) Public School as that was the school closest to the father.
Ms M had a copy of Ms B’s report when she conducted her interviews with the parents and children. Ms M reported that the mother said to her that both children should continue to be home schooled despite the findings in Ms B’s report. Ms M said the mother told her that she was unhappy with the findings of the report and the process involved in its preparation. She told Ms M that she believed that if a decision was made that the children should no longer be home schooled she would see it as further evidence that she had little say in her children’s education. At hearing the mother said that her preference for home schooling had not changed “I simply put them in school to try and appease this, the proceedings.” Ms M’s opinion was the mother “did not appear to see Mr Dennis’ opposition to the children being home schooled as having any relevance to the children’s education.”[4]
[4] Family Report by Ms M dated 19 May 2008 at paragraph 18
Ms M expressed a concern that what she referred to as the mother’s complete rejection of the findings and recommendations in Ms B’s report, brought into question “whether Ms Dennis is best placed to consider what is in her children’s interests and reconsider her position regarding home schooling.”[5] Her opinion was that Ms B’s report supported the father’s view that home schooling by the mother was not providing the children with the educational support they need.[6]
[5] Family Report by Ms M dated 19 May 2008 at paragraph 31
[6] Family Report by Ms M dated 19 May 2008 at paragraph 32
The mother’s evidence is that during 2008 she decided that it was best to enrol the children in school. Her preference was to enrol the children at (omitted) School. Although this school was not too far from Property K where she was living at the time this involved an application for an out of area enrolment. The lease on the mother’s premises at Property K was due to expire on 19 October 2008. The mother said in her affidavit of 30 June 2008 that she would be prepared to relocate within the zone of (omitted) should that be necessary. She met with the principal, attended an open day at the school and spoke with the school counsellor. Apparently reasonably satisfied with what she found out about the school, she then expressed her preference that the children attend (omitted) School. The July 2008 orders provided for the children to attend (omitted) School and the children commenced to attend that school around mid 2008. The mother told Mr L that the children have settled into school quite well, that they feel comfortable and have made friends. This is consistent with what the children told him.
The mother then moved to (omitted) in November 2008. This move means that she lives further away from (omitted) School. She says that the 40 minute trip from her parents home to the school is arduous for the children and that she would like to be able to move closer to the school and use some type of small accommodation augmented by her caravan or she would like to move the children closer to an area where she can afford to live. She says that (omitted) is an expensive location. She mentioned to Mr L the possibility of the children attending (omitted) Public School.
The mother now wishes to be able to move the girls from (omitted) School. The current orders provide in part that neither parent shall change the enrolment of the children from (omitted) Public School without the written permission of the other. The mother proposes that an order be made that “the children shall attend a school, local to the children’s residence, and the mother shall take all necessary steps to enrol the children in such school.” The father wishes the children to remain at (omitted) School, although Mr L thought that he did not appear to object to (omitted) School. The opinion of Mr L was that given the long absence of the children from formal education X and Y should remain at the school into which they have settled. He added that in X’s case, (omitted) School emerged as a possible alternative and may be suitable for both children “however, frequent changes in schools is undesirable.”[7] On the evidence before the Court the Court would have to agree, particularly given the needs of the children, especially X. The evidence also indicates that it is important for the father to have an involvement in decisions about the children’s schooling. This is particularly so given the mother’s evidence about her lack of future plans and the fact that earlier this year she was considering a move to (omitted) for one and a half years.
[7] Family Report by Mr L dated 31 March 2009 at paragraph 42
The mother said she decided to move into the home of the maternal grandparents at (omitted) in November 2008 because she could not afford all the expenses she had at the time. As a result of a change of assessment application the child support paid by the father was increased. The mother said she had anticipated that she would receive more by way of payments of arrears. She says she undertook some paid employment for approximately 16 hours per week in August 2008. At hearing she described this employment as working for a friend minding her children. She said she felt like she was not giving enough time to her own children and was not getting enough money for the work she was doing. The benefits she said of her move to her parents’ home at (omitted) were that she would not be required to pay rent, her parents would be able to assist her in the care of the children and she would be able to undertake further education.[8]
[8] Mother’s affidavit sworn 11 March 2009
The mother has already obtained tertiary qualifications. She completed a (course omitted) from the University of (omitted) in 1995. In March 2004 she commenced a (course omitted) at the University of (omitted). She studied on a full-time basis for twelve months. This year she enrolled in a full time (course omitted) degree with a (omitted) major. The mother said in evidence that she spends 30 hours a week studying. When asked if all this study was done at home, the mother said she does a lot of her study when she is out, “I often go to the library or sometimes to cafés, sometime I sit on the beach and do my reading, because a lot of my study is reading (omitted).” The mother said in her evidence that she is able to take a second major in her degree and she wished this to be (course omitted) and it was in this context that she told Mr L that she wanted to live in (omitted) with the children for up to one and a half years from the beginning of 2010. She said she would be required to attend the (omitted) component of the degree at (omitted). She told Mr L that she proposed that the children would attend a (omitted) school and see their father during school holidays and on two weekends a term.
At hearing the mother gave evidence that she was no longer proposing to move to (omitted). When asked if that was a firm “no” she responded that “one never knows what the future holds” but that was her view at present. The basis for what she described as “sacrificing going” appeared to be a concern about further involvement in Court proceedings.
The father’s case is that the mother’s past actions give him cause for concern about the stability of her arrangements of the children. The evidence indicates that the mother does not plan long into the future. She has changed the girls accommodation frequently particularly in recent years, and on her own evidence further change is likely as she does not intend to stay living at her parents home, although cannot say when she intends to move. The mother told Ms M that she was particularly upset that the father had restricted her ability to travel as she believed that the experiences she had planned for the children would have been very beneficial for them. The concern of the father is understandable especially given that the mother has not consulted with him before she has made decisions about significant matters to do with the welfare of the children.
It is concerning that the mother is considering moving the girls from their present school given the history, the girls’ relatively recent enrolment in formal school and their evident happiness at (omitted). This needs to be seen particularly in the context of X’s special educational needs at least in the area of literacy.
Ms M concluded that although the mother loved the children and wants the best for them “she appears to have great difficulty in separating her own needs from those of the children.”[9] The Court finds that the evidence supports this view. There must be a concern that the mother’s lifestyle preferences have the effect of placing her needs ahead of those of the children and that this can have a detrimental impact on her capacity to provide for the emotional and intellectual needs of the children, although no doubt, she believes herself that there would be a benefit to the girls arising from what she herself likes to do.
[9] Family Report by Ms M dated 19 May 2008 at paragraph 35
The mother indicated that an option for her might be to move closer to the children’s school at (omitted), subject to being able to find inexpensive accommodation. She raises the possibility of annexing her caravan to a relatively basic type of accommodation such as a granny flat. The father opposes this and seeks a continuation of an interim order restraining the mother in the type of housing she provides for the children, other than during holidays. While Mr L expresses the opinion that it is preferable for the girls to remain in the school where they are settled, he is of the view that unless the mother’s accommodation plans represent neglect he does not consider that her accommodation plans are an issue upon which he needs to report. The father’s concerns about stability and education are well founded on the evidence. However, there needs to be a balance between ensuring that such essential needs of the children are met and restraining the mother’s preferences about how she manages her life more than is needed in the circumstances. A caravan and granny flat may not be ideal but as Mr L notes, the mother’s parenting arrangement standards have never come to the attention of the Department of Community Services. He also observed the children to be “pleasant confident and apparently emotionally secure.” They have been predominately in their mother’s care and this should be a matter to be taken into account in making restrictions on the mother in relation to her decision making.
The Court finds that the children’s needs for stability and schooling are an important component of providing for their intellectual needs. On the evidence the mother alone should not be responsible for making decisions in relation to the choice of school. However, the evidence does not support a restraint on the mother’s choice of accommodation for the children. The father expressed a concern that if the mother utilises the caravan as part of the accommodation she is more likely to be a “flight risk.” Such a concern can be addressed by an order that prevents the mother alone from making decisions about what school the children attend.
Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
X has been identified as having particular educational needs. These have been discussed in the judgment.
Section 60CC(3)(h) requires the Court to consider if the child is an Aboriginal child or a Torres Strait Islander child.
This is not a relevant consideration in the matter.
Section 60CC(3)(i) requires the Court to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother’s lack of future plans and her apparent willingness to change the children’s school, given that they have only recently become settled in schooling and given X’s educational needs, raises some issues about the mother’s attitude to the responsibilities of parenthood. The mother gives financial difficulties as reason for the move from Property K. It is likely that her desire to enrol in a further educational course, which no doubt captures her interest, but does not necessarily lead to more certain employment prospects than might arise from her existing qualifications, is likely to have been a factor in her decision to move to her parents’ home.
At the same time the approach of each of the parents to dealing with the disputes between them does not reflect well on either of them in terms of their approach to the responsibilities of parenthood. The disputes risk degenerating into a tussle for control by each of the parents. This is not a way for parents to meet their responsibilities towards their children.
Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Counsel for the mother drew the Courts attention to order 41 of the current orders which is in the following terms:
The parties intend that if these orders are working to the satisfaction of each of them in six months then they will be made final and that, in the event that these orders are not working to the satisfaction of each of the parties, the matter is set down for final hearing on 6 April 2009 for three days.
It was submitted on behalf of the mother that these orders are not working to the satisfaction of each of the parties, that the father’s proposal is extremely similar to the current interim arrangement and that its continuation is likely to lead to further proceedings. The father’s proposal was characterised as “unduly restrictive” while the mother’s proposal it was submitted, catered for the best interests of the children and the needs of both parents and accordingly was most likely not to lead to further proceedings.
Such a submission which is not supported by the evidence, in itself indicates the high risk of further proceedings in this matter. This would not be in the best interests of the children and the parties should recognise this. The orders the Court will make will seek to strike a balance between undue restriction on a parent and ensuring that the needs of the children are met.
Section 60CC(3)(m) requires the Court to consider any other fact or circumstance that the court thinks is relevant.
In 2005 the children’s diet became a cause of dispute between the parents. The mother says that in 2004 X began to suffer a cough and that she was prescribed ventolin. The mother said that X also developed a tic and it became apparent that she was suffering from psoriasis. She said that Y began to suffer behavioural problems. The mother read a book outlining an elimination diet used to identify food intolerances and began to eliminate from the children’s diet some of the foods that were suggested to cause food intolerances. The father did not support the diet. He said he was not consulted before the mother placed the children on the diet and that it was not healthy for them. He said he had no evidence that there was a reason that the children needed to be on the diet. What he wanted was an opinion from a specialist that such a diet was required. He indicated his reluctance to be involved with the diet unless there was a recommendation from a qualified medical practitioner.
In 2006 the mother consulted with Dr P at (omitted) Clinic and a dietician she was referred to by Dr P. She commenced the children on a diet recommended by Dr P. The father consulted Dr P. He is a little sceptical of the results of the mother’s consultation with Dr P because he says that Dr P relied on symptoms described by the mother. A letter from Dr P dated 12 November 2007 to the father’s then solicitors was in evidence. It was apparently written in response to an earlier letter written on 6 August 2006 following a request by the mother when she visited Dr P’s office. In the November 2007 letter, Dr P says the conclusions reached in August which recommended a particular diet were made on the basis of maternal reports. She wrote that independent testing was not carried out to establish the sensitivity to foods apart from blood testing in August 2006, which indicated that neither child had coeliac’s disease. She wrote that the children did have double blinded chemical capsule challenges, with results recorded by the mother, indicting that the children were unable to tolerate salicylates in large amounts. Dr P said that she had relied on the mothers’ representation that X was unable to tolerate dairy and gluten products and that the mother had been asked to give the children a diet based on fresh fruit and vegetable, gluten free bread and soy products for X and avoid preservatives, colouring and additives.
The mother says in her affidavit that since late 2007 she has not regularly recorded the food intake and symptoms of the children but that she feeds the children a low chemical, low additive diet in the hope that they will continue to remain in good health. She says X does not consume diary products but has calcium supplements and predominantly gluten free diet. Y has dairy products. Mr Dennis gave evidence that no restrictions on the children’s diets are mentioned by the mother when he collects the children. He said that possibly the children had had food intolerances previously but that he did not think that they did now. Both parents seek a continuation of the interim orders which appear to reflect the diet described above by the mother as the children’s current diet. While Mr Dennis says diet is still an issue, the evidence does not appear to reflect this. However the issues which arise in the parties’ dispute over diet are reflected in their disagreement about other matters.
The father wants a restriction placed on the number of medical practitioners to which the children can be taken. The mother disagrees. The father says the mother has had the children unnecessarily tested for conditions which she fears they might have without what he says was a sound basis. The father referred to the testing the children had had for coeliac’s disease.
Certainly there is some basis for the father’s concerns about excessive testing in so far as the possibility of coeliac’s disease is concerned. The father says the mother had X tested at least twice for the condition although the first test was negative. Such a negative test is referred to in Dr P’s letter. A subsequent email of 17 October 2007 from the mother to the father refers to the results of a further test which the mother described as a “more reliable indication of whether coeliac’s disease may be present.” She said that X was being referred to a paediatrician as a result of a positive blood test. Nevertheless, it appears that X has not been diagnosed with coeliac’s disease. Certainly the mother in her affidavit sworn 30 June 2008 says that as of that time it had not been confirmed that X had coeliac’s disease. There was no evidence at hearing that such a diagnosis had been made.
The mother said that she had consulted three doctors in regards to X’s tic which is apparently no longer a problem as the mother says she no longer observes it. The mother could not recollect whether she had told the father about any of these consultations. She commented that as the only Court orders in place at the time were those of 2008 she regarded herself as responsible for looking after the children.
The mother wishes to have X assessed for (omitted) lenses. She says in her affidavit that X’s difficulty with literacy continued and she researched possible interventions to assist X. In her view, Ms B’s report had not suggested any strategies that she had not already tried. The mother says that she saw an entry in the Sydney yellow pages for “dyslexia aid services” and called the number which was that of the (omitted) Clinic. A person she spoke to offered her a free initial assessment of X. The mother says she sent an email to the father advising him that she had made an appointment for X to attend at the (omitted) Clinic. The assessment date was scheduled a few days after the date of the email. The mother says the father did not respond. At hearing the mother gave evidence that she took X for assessment. It seems from the evidence that the assessment may have been undertaken by a trainee under supervision. The mother said that the recommendation was that X would be suitable to be fitted with (omitted) lenses and that a further consultation was required. The mother agreed that no professional involved with X had recommended the lenses.
Subsequently the mother received an email from the father saying that he should be consulted prior to appointments being made and pointing to the difficulties of him attending an appointment with only a few days notice given his work commitments.
Mr L reported that the father told him that he had no objection to X being assessed for (omitted) lenses. In cross-examination the father said that what he recollected saying was that he would give consideration to such an assessment. He said that he would need to see evidence to suggest that X needed to be tested and that in particular he would need evidence that she had dyslexia. He said that he would consider the assessment if there was an opinion expressed by some professional involved with X such as a remedial class teacher, school counsellor, tutor or doctor which suggested that X possibly had dyslexia. He expressed concern that the mother saw things in the children that were not supported by professional opinion and that she was not in a position herself to determine that X suffered from dyslexia. In the absence of such professional opinion the father maintained his objection to X being assessed for (omitted) lenses.
The evidence indicates that the mother is very sensitive to symptoms she observes in the children. This may result in the children having procedures or tests more often than the father would consider reasonable. When the mother identifies a cause for concern she may not accept a result which does not validate these concerns. This appears to be the case with the repeated testing for coeliac’s disease. At the same time the children have now apparently settled into what would be regarded as a reasonable healthy diet. X’s psoriasis has been treated by Dr H, Dermatologist at the (omitted) Hospital whom the mother consulted. The father does not raise any issues about this. The mother points to evidence that she has only taken the children to a doctor on two occasions since the orders of July 2008 have been put in place.
While the father’s concern is understandable especially as decisions have been made by the mother without consultation with him, there needs to be a balance between his concerns and what the mother considers an undue level of control over what she does given that the children live with her most of the time and she needs to make arrangements that meet the day-to-day circumstances of herself and the children. The Court will make orders which aim to achieve such a balance.
The (omitted) assessment proposed by the mother raises many of the issues discussed in the judgment. It is reasonable that before any further assessments are considered or before X is fitted with (omitted) lenses an opinion be obtained from a school counsellor at X’s school or from one of her teachers, or from some other professional agreed between the parties. Should such an assessment identify that X is likely to be suffering from dyslexia and that assessment for (omitted) lenses would be beneficial, the father’s evidence is that he would not unreasonably withhold consent to such an assessment.
Section 60CC(4) requires consideration of the extent to which the child’s parents have taken the opportunity to participate in decisions about the major long term issues in relation to the child and the extent to which the parent has facilitated or failed to facilitate the other parent’s participation in making such decisions or in being able to spend time with the child or communicating with the child.
The evidence is that the mother did not consult with the father in relation to major issues concerning the children. The mother, for example, did not consult with the father before introducing the elimination diet. The father objected to the mother’s plans for home schooling X and the evidence is that she did not discuss with the father her subsequent arrangements for home schooling Y. The father did not know about her (omitted) plans.
The Full Court in the matter of Chappell & Chappell (2008) 39 Fam LR 627 observed that the provisions of the legislation mean that great emphasis has been placed on the importance of parties jointly sharing the responsibility for matters associated with their children’s care, welfare and development. The mother has not placed importance on this.
Ms M comments in her report that one of the reasons that the mother seems to have problems in involving the father in the children’s care and decisions about their lives is that “she seems to believe that she alone knows what is in the children’s best interests.”[10] The father has been required to institute proceedings in Court to ensure that he has involvement in major decisions affecting the children. The mother has not facilitated his participation in making decisions about major long term issues relating to the children. This consideration is important in the Court’s determination of the orders to be made in the best interests of the children.
[10] Family Report by Ms M dated 19 May 2008 at paragraph 35
Equal shared parental responsibility
Section 61DA(1) states that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The presumption may be rebutted if there is evidence which satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child.
Each of the parties seeks an order for equal shared parental responsibility for the children. At the same time, the parties have been in high conflict over decision making and Mr L said that they apparently “have no capacity to negotiate or confer.”
This is a matter where the Court has found that the children have close relationships with both parents. The parties agree that the children will live with their mother. The current orders provide that the children spend frequent periods of time with their father. The mother says she does not wish the children to spend less time with their father. This is not a matter where there are allegations of family violence or issues that either party does not love and care for the children. The Court agrees that this is a matter where there should be an order for equal shared parental responsibility with provisions about the process of decision making about certain major long term issues affecting the children.
Given that there will be an order for equal shared parental responsibility, as explained in Goode & Goode [2006] FamCA 1346 the Court is required to consider the provisions of section 65DAA(1):
If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
The parents do not seek equal care arrangements. This would not be reasonably practicable given the distance which they live from each other.
Section 65DAA (2) provides that if an order is made for equal shared parental responsibility and the Court does not make an order for the children to spend equal time with each of the parties, the Court must consider whether the children spending significant and substantial time with each of their parents would be in their best interests and if that would be reasonably practicable.
Section 65DAA(3) provides that a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The father’s time with the children
The father proposes that the time he spends with the children should be similar to the interim orders with some modifications taking into account more flexibility for the July school holidays. Y’s birthday coincides with these school holidays.
He proposes that the children continue to spend three of every five weekends with him, being weekends 1, 3 and 5 in a five week cycle and that the children’s time with him commences at 7.00pm on Friday and ends at 4.00pm on Sunday.
He also proposes that the children spend one week of the Easter school holidays with him and spend the other mid term school holidays, i.e. July and September/October with each of the parents in alternating years. The father proposes further that the children live with their mother on the last two weeks of the Christmas school holidays and spend time with her over the Christmas period in alternating years. This reflects the present interim orders.
The mother proposes that the children spend alternate weekends with the father from after school on Friday to before school on Monday and one half of the school holidays. The mother says that her proposal, because it would involve Sunday nights, would make relatively little difference to the time that the children are currently spending with their father. She said that the present arrangements for the children spending three out of five weekends with their father mean that she misses quality time with the children. She also said she wanted the children to be able to spend more time with their cousins on weekends. Some of the cousins, because of their own family arrangements, were only available each alternate weekend and the mother says the current arrangements therefore made it difficult for her to synchronise the children’s time with their cousins.
The father says because of the distance involved and the fact that he is working, it would not be practicable for him to be able to be on the (omitted) to collect the children when they finish school on Fridays or to be able to return them on Monday morning.
The mother submitted that an option was for the father to move to the (omitted). This is a surprising submission in view of the mother’s lack of plans about her future and her own recent proposal to move to (omitted) for a year and a half. On the basis of the material before the Court, the Court finds that it is not a reasonable expectation.
The father acknowledged that his work arrangements could be flexible but that he had not asked his employment about reducing his hours as would be required by the mother’s proposal on each second Monday and Friday. He said that the time the children spend on weekends with him is of benefit to them because he has had the opportunity to enrol them in weekend activities in particular dancing and nippers. The father says he is an (omitted) for the (omitted) in (omitted). The children also have the opportunity to spend time with members of the father’s extended family at weekends.
Mr L’s opinion was that “X and Y have come to rely on their weekends with their father.”[11] Their express views were that they enjoyed their weekends with their father. X particularly referred to her enjoyment in going to the beach and participating in nippers.
[11] Family Report by Mr L dated 31 March 2009 at paragraph 39
Mr L also expressed the opinion that “the children are benefitting from the present weekend schedule with their father and nothing emerged to justify a reduction in that program.”[12]
[12] Family Report by Mr L dated 31 March 2009 at paragraph 43
The mother’s counsel acknowledged that in essence the report of Mr L recognised that there should be no change to the interim arrangements for the time the children spend with their father. It was further submitted however that “the report must be read in context and the errors which are apparent on its face must be taken into account. Firstly, at the time the report was written except for Christmas school holidays, no other school holiday arrangements had taken place. Secondly, Mr L states that the current arrangements are two weekends out of three for the father(see paragraph 2) and….3 weekends out of four(see paragraph 4)…both of which are factually incorrect.” It is clear that Mr L was aware that the children were spending more than alternate weekends with their father. His recommendations were based on his observations of the children, the parents and relationships within the family. He was not required for cross-examination. The Court accepts his evidence of the importance for the children of their current weekend program with their father.
The Court also finds that it is not reasonable to expect the father to make the significant changes to his work arrangements which would be required to meet the mother’s proposal. Additionally, and more significantly the Court finds that the children benefit from their weekend time with their father including in their participation in the weekend activities which he has arranged for them. While distance makes it difficult for the children to spend substantial and significant time with their father as set out in section 65DAA(3), the present arrangements and the orders sought by the father, allow the children to participate in those activities which are important both to the father and to the children and to that extent reflect the intention of the legislation.
School holiday time and travel
The mother would like the opportunity to travel with the girls. She would like to be able to take them out of school for a maximum of seven days once a year for this purpose and would like more time in the Christmas school holiday period than the current orders provide for. This is a matter where the Court is aware, as has been emphasised in the judgment, that a balance needs to be achieved between unnecessarily restricting the mother’s lifestyle choices and ensuring that the needs of the children are met. The children’s school attendance record since the interim orders have been in place has been good. The father says this is a result of the orders and he may be correct in this. The Court will make an order that neither party is to take the children out of school for any holiday or any other purpose, other than illness supported by a medical certificate, for a period of more than 7 days without the written consent of the other party and the approval of the school which the children are attending. An order alternating holiday time in the mid term July and September/October holidays and allowing the mother further time with the children in each alternate period in the Christmas school holidays should facilitate her desire to travel with the children.
While Court orders cannot provide for all situations there is a possibility of the orders including more flexibility to allow for travel during school holidays. If for example, the mother wished to take the girls skiing, as suggested by her, this would be an activity normally available during the July holidays. The orders would allow the mother to spend time with the girls in the July school holidays in even numbered years. Should the mother give the father two months notice that she wishes to take the girls on holiday for a week which included the July school holidays in other years, the father should allow the children to spend a nominated week of the July school holidays with their mother. The mother by way of compensating time, should allow the girls to spend the first week of the following September/October school holidays with their father.
The father’s telephone communication with X
The father wishes the order in relation to communicating with X by mobile phone to continue. The order provides that the father provide X with credit for a mobile telephone and that the parties ensure that she has the phone with her and switched on between 6.00pm and 8.00pm on Tuesdays, Thursdays and Saturdays. The father says that he has had difficulty in contacting X on the mobile phone at the times specified in these orders. For a time he lost the phone number and telephoned the mother to obtain it. The mother agreed that it was possibly a month before the hearing that the father called and asked for the number. She said that since then the phone had been “lost” and that “it’s somewhere in her (X) messy room.” The mother says that difficulties arose because sometimes during the specified phone communication times X might be engaged in other activities and/or not with her but with other relatives or friends.
Problems often arise in the Court in relation to children’s availability to speak on mobile phones and there is no doubt that it can be demanding to expect a ten year old child to always have a mobile switched on or available at specified times. At the same time the mother’s evidence indicates that she feels little responsibility about facilitating the arrangement agreed to in July 2008 does not place a priority on X being able to speak to her father on the mobile phone in accordance with the orders. She gives the impression that she finds it too much trouble to ensure that the phone is switched on and charged. This is an issue which has the potential to cause continuing problems between the parties unless common sense is shown by each of them.
Under the orders the Court will make the father will continue to see the children frequently. A sensible course would be to reduce somewhat the expectations on X arising from the frequency of the times the father is likely to telephone her on her mobile but with clear responsibility for the mother to ensure that the telephone is switched on and with X at the relevant time. The orders will specify times on Wednesday and Saturday. This arrangement should benefit the mother given the number of Saturdays which the children spend with their father.
Passports and overseas travel
The father has sought an order that neither party apply for a passport without the consent of the other. This however is a requirement for the issue of passports for children. It is possible that either party in the future may wish to take the children out of Australia during holiday periods. There are a number of ways in which a “flight risk” referred to by the father can be addressed, depending of course on the destination of travel. This is a matter again which should be approached with common sense and in the first instance a resolution should be sought through mediation. The parties need to learn to negotiate and compromise.
Communication between the parties
The parties cannot agree about the way they should communicate. The mother says she prefers to communicate by telephone as she finds written communication by email difficult in the precision she says it requires. The Court observed both parties give their evidence and it was readily apparent at this time that the use of a telephone as the major means of discussing difficulties could lead to further conflict and frustration given that the styles of communication between the parties are so different. The opportunity for this is less with email and text messaging and until the parties can improve the way they communicate with each other these should be the primary means of communication.
Other matters
There are orders sought by the parents about matters where the utility and enforceability of any orders the Court can make are questionable, for example provisions of school lunches and assistance with homework. In relation to other matters there appeared no dispute, for example the father agreed to provide a tutor for X should such be recommended to him by a teacher or school counsellor.
At the same time, the present order concerning change of address has proved to allow for difficulties to arise and was the basis of a Contravention Application by the father. Either party should be required to give more notice than is currently provided for in the orders of a proposed change of address. The father appeared to acknowledge in the context of the hearing that pursuing his Contravention Application would not assist decision making about the range of issues in dispute between the parties. The Court will formally dismiss the Contravention Application filed by the father on 29 January 2009.
The father sought a restraining order on the maternal grandmother attending at changeover and there was evidence before the Court of an incident involving the maternal grandmother. The appropriate order is that the mother should use her best endeavours to ensure that the maternal grandmother is not present when the children are collected to spend time with the father or when they are returned from spending time with him.
Conclusion
Court orders, no matter how detailed, cannot address the potential areas for disagreement between the parents in this matter. It is not appropriate that there be frequent resort to the Court to solve the problems the parties have in negotiating and compromising between themselves. Each of the parents needs to be able to move away from what seems to be a tussle between them for control of what happens in their children’s lives. The Court makes these comments in the context of a matter where there are two loving parents and no issues of family violence, substance abuse or mental health difficulties which often make Court’s intervention necessary in the interests of the children.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Walker FM
Date: 29 October 2009