FDM & SAW
[2005] FMCAfam 236
•18 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FDM & SAW | [2005] FMCAfam 236 |
| FAMILY LAW – Parenting – competing residence applications – issue of schooling for both children – mother self represented. |
| Family Law Act 1975 |
| B and B; Family Law Reform Act 1995 (1997) 22 Fam LR 676 H v W (1995) FLC 92-598 Re G [2000] FamCA 462 |
| Applicant: | FDM |
| Respondent: | saw |
| File Number: | PAM 4934 of 2004 |
| Judgment of: | Sexton FM |
| Hearing date: | 21 & 22 April 2005 |
| Delivered at: | Parramatta |
| Delivered on: | 18 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Thistleton |
| Solicitors for the Applicant: | Champion Legal |
| Respondent: | Self Represented |
ORDERS
That the mother and father in consultation with each other have responsibility for making decisions for the long term care welfare and development of the children of the marriage, XSM, born 8 July 1993 and CSM, born 14 December 1996.
That each party have responsibility for the day to day care welfare and development of the children while in that party’s care.
That XSM reside with his father as follows:
(a)Each alternate week from after school on Thursday until before school on Tuesday to commence no later than the second Thursday after the making of these orders.
(b)On Father’s Day each year from 9.00a.m. until 6.00p.m. if a non-resident weekend for the father.
(c)In the event Mother’s Day falls on a non-resident weekend for the mother, the father’s residence period to conclude at 9.00a.m. on Mother’s Day.
That CSM reside with her father as follows:
(a)Each alternate week [being the same weekend XSM resides with his father] from after school on Friday until before school on Tuesday to commence no later than the second Friday after the making of these orders.
(b)On Father’s Day each year from 9.00a.m until 6.00p.m if a non-resident weekend for the father.
(c)In the event Mother’s Day falls on a non-resident weekend for the mother, the father’s residence period to conclude at 9.00a.m on Mother’s Day.
That XSM and CSM reside with their father as follows:
(a)Subject to Order (5)(b) and (c) for one half of each school holiday period as agreed between the parties by no later than 21 days prior to the first Saturday of the relevant school holiday period and failing agreement by that day, for the first half in any even numbered year and the second half in any odd numbered year;
(b)From 4.00p.m on Christmas Eve until 4.00p.m on Christmas Day in 2005 and each alternate year thereafter;
(c)For one half of the Easter break if it does not fall during a school holiday period to be calculated from 6.00p.m on the Thursday immediately preceding Easter Sunday until 6.00p.m on the Monday immediately following Easter Sunday as agreed and failing agreement by the Friday 7 days prior to Good Friday, for the first half in even numbered years and the second half in odd numbered years;
(d)At such other or alternate times as the parties may agree.
That the children reside with the mother at all other times.
That for the purposes of changeover, unless otherwise agreed between the parties, the father shall collect the children at the commencement of his periods of residence, and the mother shall collect the children at the commencement of her periods of residence.
That each party’s weekend and weekday residence periods be suspended during all school holiday periods and resume after each holiday period as though there had been no interruption to weekend and weekday contact.
That XSM attend MB High School unless otherwise agreed between the parties.
That CSM attend RH Public School unless otherwise agreed between the parties.
That within 3 days of order, the mother provide all necessary authorities to RH Public School and to the after school care centre attended by CSM to enable the father and/or SM to collect CSM from school and/or the after school centre.
That each child have reasonable telephone contact with the parent with whom the child is not residing, such telephone contact to be facilitated by the resident parent in private.
That the mother and the father each be restrained from enrolling either child in extra curricular activities or arranging social activities to be held during the children’s residence periods with the other party, without the other party’s prior written consent.
That, subject to Order (13) herein, both parties to ensure that the children continue to participate in their extra curricular and social activities whilst in their respective care and facilitate each child’s attendance at such activities and events.
That both parties will ensure that the other party is kept informed of:
(a)Any significant medical event involving either child, whether illness or accident, including details of diagnosis, treatment and any medication prescribed.
(b)Any progress or disciplinary reports from the school concerning either child.
(c)All special events in which either child is involved.
(d)Any other matter of significance relevant to either child’s welfare.
That during the course of CSM’s Year 6, the parties will consult with each other in relation to the choice of high school for CSM by no later than 31 July, if necessary, with the assistance of a counsellor at Relationships Australia and/or with the assistance of the RH Public School Principal.
That each party be restrained from speaking or permitting any other person to speak to or about the other party or member of their household or family in a negative, offensive or unpleasant fashion in the hearing of any of the children.
That each party advise the other and keep the other advised of their current street address and contact telephone numbers, both landline and mobile, and advise the other party of any changes in those details within 7 days of any such change occurring.
That within 14 days the father and mother each contact David Mack or the intake officer at Resources for Adolescents and Parents (RAPS) program at Relationships Australia on 1300 364 277 to arrange counselling for themselves and their daughter SM for the purpose of improving the relationship and communication between each of the parents and SM and that each party comply with the recommendations of the counsellor and the counselling service.
That prior to the first appointment, the mother provide a copy of these Reasons and these Orders to the counsellor referred to in Order (19) herein.
That pursuant to Section 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collect that subpoenaed material and return it to the owner within seven (7) days.
That all existing applications be otherwise dismissed and the matter be removed from the pending cases list.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 4934 of 2004
| FDM |
Applicant
And
| saW |
Respondent
REASONS FOR JUDGMENT
Applications
These are proceedings for parenting orders in relation to two children of the marriage, XSM, born 8 July 1993 and CSM, born 14 December 1996. The parties’ eldest child, SM, born 21 August 1988, is not the subject of these proceedings. The proceedings involved competing residence applications and competing applications in relation to the schools the children should attend.
The proceedings were commenced by the father who filed an application on 30 September 2004 seeking orders that XSM and CSM live with him. He sought no orders in relation to XSM and CSM’s contact with their mother. He sought further orders on an interim basis that the children live with him and be permitted to finish their school year at RPS.
On 1 November 2004 an interim order was made by this Court restraining the mother from withdrawing the enrolment of XSM or CSM from RH Public School.
The mother filed an interim application on 31 January 2005 seeking an order that XSM attend QH High School. The father opposed that application by Response filed on the same day. He sought an order that the mother be restrained from withdrawing XSM from MB High School. On 31 January 2005 a further interim order was made that XSM attend MB High School from the commencement of 2005.
On 31 March 2005, the mother filed her Response to the father’s substantive application seeking orders that XSM and CSM reside with her, attend schools local to her residence, and have alternate weekend and half holiday contact with their father.
An Apprehended Violence Order [“AVO”] against the father for the protection of the mother expired on 26 March 2004.
The father was represented at hearing by counsel. The mother represented herself.
Counsel for the father submitted a Minute of Proposed Order at the commencement of the hearing setting out the precise orders sought by the father, very similar to those sought by him in his original application. At hearing, the mother set out the precise orders she sought in relation to the children’s schools. She otherwise relied on her Response filed 31 March 2005.
Background
The father was born in New Zealand on 31 May 1966. He is 38 years old.
The mother was born in New Zealand on 18 October 1966. She is
38 years old.
The parties have known each other since they were teenagers. They started living together in February 1985 and married in New Zealand on 1 March 1986.
There are three children of the marriage, SM, born 21 August 1988, XSM, born 8 July 1993 and CSM, born 14 December 1996.
The parties separated in October 2000 but lived under the same roof until final separation on 4 April 2002 when the mother moved from the matrimonial home to nearby with XSM and CSM. The mother had moved out of the home with the three children in January 2001 for a period of three weeks.
In September 2004 the mother moved to a suburb in Greater Western Sydney.
Both parties are in full time employment, although the mother’s substantive position is only part-time.
The father has a non-residential partner, Ms GMW. The mother has not re-partnered.
The relevant law – parenting
Parenting orders arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E which provides that a court must regard the best interests of the children as the paramount consideration. Section 60B(2)(a) emphasises the rights of a child to (i) know both parents and (ii) to be cared for by both parents. Section 60B(2)(b) provides that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
It recognises the desirability of contact. The word ‘regular’ implies that contact should be as frequent as is appropriate. In B and B; Family Law Reform Act 1995 (1997) 22 Fam LR 676 the Full Court of the Family Court said “it is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long term.” In considering what parenting arrangements should be ordered, the court must make the order which it considers to be in the best interests of the children.
In deciding the parenting arrangements that will promote the best interests of the children in this case, the court must have regard to the factors in Section 68F(2) of the Act to the extent each subsection is relevant to this particular case. The matters that are to be taken into account under section 68F(2) are:
a)the wishes expressed by the children;
b)the nature of the relationship between the children and each parent;
c)the likely effect of any change in the children’s circumstances;
d)the practical difficulty and expense of the children having contact with a parent, and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;
e)the capacity of each parent or any other persons to provide for the needs of the children, including the children’s intellectual and emotional needs;
f)the children’s maturity, sex and background;
g)the need to protect the children from physical or psychological harm;
h)the attitude of each of the parties to the responsibilities of being a parent;
i)any family violence that may involve the children or a member of the children’s family;
(j)any family violence order that applies to the children or a member of the children’s family;
(k)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 children;
(l)any other fact or circumstance that the court thinks is relevant. This subsection ensures that the individual child’s circumstances in a particular case can be properly taken into account.
In B & B Family Law Reform Act 1995 (1997) FLC 92-755 the Full Court said:
9.51In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
9.52The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s60B.
9.53The wording of s 68F(2) makes that clear – the Court “must consider” the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and no children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
9.54Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to Section 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in subsection (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court’s consideration of the matters in S68F(2) and to the overall requirement of S65E. The matters in S 68F(2) are to be considered in the context of the matters in S 60B which are relevant in that case. But Section 65E defines the essential issue.
9.55Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter-relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.”
The issues
The issues for the Court to decide were whether XSM and CSM’s best interests are best served:
a)firstly, by continuing to live predominantly with their mother, or by moving to live predominantly with their father; and
b)secondly, by attending their present schools or by moving to new schools close to the mother’s residence.
The matters relevant to these two issues are interlinked and required consideration of:
·The wishes of the children.
·The nature of each child’s relationship with each parent and other relevant persons.
·The capacity of each parent to provide for the needs of the children.
·The need to protect the children from physical or psychological harm.
·The attitude of each parent to the responsibilities of parenthood.
·Practical issues involved in parenting arrangements including child care arrangements and where children should attend school.
Evidence and findings
The father relied on:
·His affidavits sworn 30 September 2004, 31 January 2005 and 29 March 2005.
·The affidavit of his mother, NJM sworn 15 March 2005.
·The affidavit of GMW sworn 30 March 2005.
Ms NJM and Ms GMW gave evidence at hearing and were cross-examined by the mother.
The mother relied on:
·Her affidavits sworn 30 January 2005 and 31 March 2005.
·The affidavit of IDB sworn 30 March 2005.
·The affidavit of BGB sworn 30 March 2005.
Neither Mr IDB nor Ms BGB were required for cross-examination.
The mother sought to rely on an affidavit of Ms LS. Ms LS was not available for cross-examination in person on either day of hearing as required by the father. Her evidence raised an issue of credit. I directed at the commencement of the hearing that her evidence be excluded.
Ms Veronica Seres, registered psychologist, prepared a Family Report dated 15 April 2005 which was in evidence [Ex. 2]. Ms Seres was cross examined by the mother and by counsel for the father. Ms Seres has over 20 years experience as a psychologist and was employed by the Family Court for 15 years.
Both parties tendered additional documents that became exhibits in the proceedings.
Since the parties’ final separation in April 2002, XSM and CSM have lived with their mother and had regular contact with their father. The parties’ eldest child, SM, now aged 16, has lived with the father and had limited contact with the mother. Both parties work full time, the mother as a psychologist with the NSW Department of Corrective Services and the father as a patent searcher. The father currently pays child support for XSM and CSM of $94.50 per month in accordance with the Child Support Agency’s assessment.
Although SM was not the subject of these proceedings, it was clear from the evidence of the parties and Ms Seres that her relationships with the parties and with XSM and CSM were relevant to the issues before the Court. There was no dispute that the mother has had a difficult relationship with SM since the parties’ separation and particularly since the mother moved to a town in country NSW with the three children for three weeks in January 2001. The mother said in evidence that SM was angry with her about the country town experience and their relationship was thereafter more difficult. The mother told Ms Seres that SM barely sees her now. The mother acknowledged SM was angry with her after she left the home in April 2002 and an incident occurred when SM physically attacked her. The mother blamed the father for failing to facilitate the relationship between her and SM. The father said he encouraged SM to see her mother when she collected or delivered the younger children and that he in no way obstructed SM’s contact with her mother.
I find that the poor relationship between the mother and SM, and the mother’s perception that the father has played a significant role in the deterioration of that relationship has led to the mother’s view that if XSM were to live with his father, the mother’s relationship with him would deteriorate in the same way. The mother said in evidence “I am fearful I will lose another child” and expressed the same fear to Ms Seres at interview. The mother agreed with counsel for the father that XSM is very aware of her stress about SM.
I agree with the submission of counsel for the father that the mother has shown limited insight into the cause of her problems with SM and has not adequately acknowledged her role in the breakdown of their relationship. Ms Seres said in her report [P. 13] that the breakdown in the relationship between SM and her mother needed to be addressed with the father’s support. Ms Seres recommended professional intervention in the form of an experienced adolescent counselling unit. Neither party has sought professional help in relation to improving the communication between the mother and SM. At the conclusion of the hearing, I invited the parties to consider Ms Seres’ recommendation and the parties consented to an order to take whatever steps recommended by an adolescent counselling unit to address the problem. I have made that order.
In relation to XSM and CSM, each party acknowledged the importance of the other’s relationship with the children and the strong attachment each child enjoyed with both parents. However, each was highly critical of the other and of each other’s parenting style, particularly since the breakdown in their relationship in 2000. The mother told Ms Seres she was concerned the father still suffered from depression and could become angry, violent and bizarre. She said the father focussed on minor and petty failures on her part and could not see the bigger picture. She believed the father used SM as a “proxy” parent who did not supervise the younger children appropriately. The father had a number of criticisms of the mother. He told Ms Seres that she was unable to manage teenagers, evidenced by the breakdown of her relationship with SM. He said the mother had made an impetuous and inappropriate decision when moving to a NSW country town in 2001, without giving consideration to the children’s needs. He said the mother had placed an unfair emotional burden on XSM when telling XSM she would kill herself if he moved to his father’s.
Both parties conceded they were unable to communicate effectively with each other and were unable to make decisions about the children in consultation with each other for the children’s benefit. Each blamed the other for this situation. A clear example of the parties’ failure to communicate arose in the cross-examination of the mother when she conceded she had sent the two younger children to stay with her mother in Queensland during the hearing, without consulting or informing the father. The mother agreed the arrangements should have been agreed “in an ideal world.” The mother in final submissions said she has been unable to communicate with the father because of “his behaviours”.
Both parties proposed that XSM and CSM should remain living together. However, neither party had given consideration prior to hearing to any parenting arrangement options other than those sought by each of them. During the course of the hearing both parties conceded the importance of the children having more time with the non-resident parent than proposed by each of them in their respective applications. I am satisfied this inflexibility in attitude from both parties has characterised their relationship since their separation. I am satisfied neither party has given appropriate consideration to the impact of this intransigence on the welfare of their children. Neither has sought professional help in relation to improving their communication.
The mother is living with the two youngest children in rented accommodation in Greater Western Sydney and working at a NSW Correctional Facility. She described her week day routine as leaving the house between 7.00a.m and 7.30a.m, driving the children to school and arriving home at about 7.00p.m after collecting CSM from after school care and XSM from the father’s residence at around 6.00p.m. As a result of the travel time, she proposed that the children moved to schools close to her residence: CSM to B Public School and XSM to G High School. The mother said that despite the recommendation of Ms Seres, that she might consider moving her place of residence closer to the children’s present schools, the mother said she did not intend to do so for a number of reasons. The mother said it might be possible for her to obtain a position at another NSW Correctional Facility closer to her residence, which if the children changed schools, would make their day to day routine easier. There was no evidence before me as to the likelihood of any request for transfer by the mother being successful, and I have therefore given the issue little weight.
The father is living with SM in the former matrimonial home in Greater Western Sydney about a 30 minute drive from the mother’s residence. He is working in Sydney’s Inner West, about 35 minutes from his home. He leaves home about 8.15a.m and arrives home between 6.00p.m and 6.30p.m. Both children attend school about 5 minutes from the father’s residence. The father said if the children were to live with him, he would make adjustments to his hours of work. He would leave home at about 8.10a.m. to take the 3 children to school, and return by 5.30p.m. He said XSM would go directly to his home after school by bus to be looked after by SM until he arrived home. He would collect CSM from after school care on his way home from work. He would move to a larger home in the same area so CSM could have her own room. The father conceded CSM would find the adjustment to living with him harder than XSM, and that, if necessary, he would agree to her spending more time with his mother than proposed by him in these proceedings. The father’s partner, Ms GMW, said that she and the father hoped to live together permanently from the beginning of 2006 but as the father did not address the issue in his evidence and Ms Seres did not interview Ms GMW, I have not taken this possibility into account in reaching my decision. The father proposed that if the children were to continue to live with their mother, they should remain at their present schools.
Wishes of the children
In his affidavit sworn 30 September 2004 the father deposed to commencing residence proceedings for XSM and CSM because XSM expressed a wish to live with him in May 2004 and again in August 2004. The father said a couple of weeks after the May event, XSM changed his mind. After the August event, XSM again changed his mind because, according to XSM, after raising the prospect of changing residence with his mother, the mother said to him “if you leave I will kill myself.” The father believed that XSM took the mother’s comment literally and was very distressed by it. In oral evidence, the father said he also started proceedings for residence because of his concerns that the mother would have problems with XSM as he matured, just as she had had with SM.
Ms Seres said CSM expressed her opinions and wishes with confidence and her wishes were clear. She has a stronger attachment to her mother and wants to live with her mother. She also has a strong attachment to her father but she wants to see her father only on weekends because she does not have her own room there and has to sleep in the living room. In her assessment, because CSM wants to live with her mother she would need frequent contact with her mother in the event the court made an order that CSM live with her father. CSM’s academic results at the end of last year were excellent. She told Ms Seres she wanted to attend B Public School, the school proposed for her by the mother.
In Ms Seres’ assessment, XSM’s attachment is more equal to both parents than CSM’s. It was difficult for XSM to express his wishes during interview as he wanted to please both parents. However, after having considered his options, he expressed a wish to live with his mother and to remain at the same school. He said he might choose to live with his father at some time in the future. Under cross examination by counsel for the father, Ms Seres did not change her assessment of XSM’s wishes. She said she interviewed XSM on two occasions. XSM was protective of both parents and did not want to choose between them. Although Ms Seres favoured the children remaining living together, she said if XSM chose to live with his father later on, in her view, he and CSM’s living arrangements could be split satisfactorily.
Ms Seres believed it was important for XSM to spend more time with his father than he was presently.
In relation to XSM’s schooling Ms Seres recommended XSM remain at his present school for reasons of his stability and continuity. It also accorded with his wishes. Ms Seres said under cross examination by the mother, that it would be difficult for XSM to move schools at this stage despite having been at MB High School for only a little longer than one school term. She regarded XSM’s young age and lack of self-confidence as important factors in this assessment.
The Full Court in H v W (1995) FLC 92-598 said:
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.
The court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
Counsel for the father asked me to accept that XSM was guarded in his expression of his wishes as to what he wanted regarding his living arrangements. He submitted that perhaps XSM believed it would cause least distress to his mother if he told Ms Seres he would stay with his mother. In relation to the schooling issue, counsel for the father submitted that XSM’s wishes were clear that he wants to remain at MB High School and urged me to make a decision in accordance with XSM’s wishes on this issue.
I am satisfied on the evidence that XSM and CSM have expressed a wish to remain living with their mother and I have taken their wishes into account in reaching my decision.
Nature of the relationship of the children with each parent and other persons
There was no challenge by either party to the fact that the children have a close and loving relationship with each of them and I find accordingly. Ms Seres observed that both children were closely attached to both parents. Ms Seres described the children as delightful, intelligent and friendly, evidence of the benefit they have received from the positive parenting and love provided to them by both parents. However, Ms Seres regarded CSM’s attachment to her mother as stronger than that to her father. Counsel for the father submitted that although CSM was more closely attached to the mother, the significant issue was how the parents assisted and managed this factor when CSM was living with her father.
XSM told Ms Seres he enjoyed being with SM [Ex 2, Page 8] and got on well with CSM, with whom he often played. CSM told Ms Seres she liked to play with XSM [Ex 2, Page 9] and Ms Seres observed CSM was relaxed in her interaction with SM [Ex 2, Page 11]. In her assessment, the children would benefit from being able to spend time with SM during the week after school.
The father’s partner, Ms GMW was not involved in the interviews with Ms Seres and she was therefore unable to assess the children’s relationships with Ms GMW. Ms GMW was on affidavit and gave evidence in the proceedings. She has known the father for 5 years as a work colleague and friend and in the last 2 years as his non-residential partner. Ms Seres had not been made aware of the father and Ms GMW’s plans to live together from early 2006. Ms Seres was aware Ms GMW was a regular visitor to the father’s home. She said neither child mentioned Ms GMW in interview. I make no findings as to the nature of the children’s relationships with Ms GMW.
Effect of changes in children’s circumstances and practical issues concerning parenting arrangements
This is a significant issue in this case. The mother can spend up to an hour transporting the children to and from their present schools from her home in Greater Western Sydney. If the children were to remain living with the mother and attended B Public School and G High School, as proposed by her, their travel time to school would be much shorter. However, if the children were to move schools, while the mother continued to work at her current location, arrangements would have to be made for the children’s supervision, particularly CSM’s, both before and after school while the mother was working and travelling to and from her workplace. The mother said she would make arrangements for such supervision. CSM could be enrolled in before and after school care and she would make separate arrangements locally for XSM. It was clear from her evidence under cross examination that the mother had not given close consideration to precisely how she would manage CSM’s before school arrangements if the mother remained working her current location: a trip of over an hour for her in the mornings. CSM could be in care from as early as 7.15-7.30 a.m. until about 6.30 in the evenings, a very long day for a child of 8 years. I accept the mother’s evidence that she might change her working hours and might achieve a transfer to another NSW Correctional Facility closer to her residence, but there was no evidence before me as to the likelihood or otherwise of such changes. If the children were to remain living with the mother and attended their present schools, their travel time of an hour each way to school and home at the end of the mother’s working day, would continue. The mother would spend about 15 minutes travelling from her workplace at SP to collect the children, assuming CSM remained at after school care and XSM continued to spend his weekday afternoons at his father’s home, sometimes with his sister SM.
If the children were to live with their father and remain at their present schools, their travel time to and from school would be minimal. The father said if the children were to live with him, he would probably move home, but within the same area as his present residence.
There is no legal presumption in favour of the residence parent when deciding where a child should attend school: Re G [2000] FamCA 46. However, the children’s residence arrangements are relevant to the question of where the children should attend school. On the question of schooling, it remains necessary for the court to evaluate the evidence and submissions in relation to the proposal of each parent as to what is in the best interests of each child.
Capacity of each parent to provide for the needs of the children
There was no dispute that both parents had the capacity to meet the children’s day to day physical needs. However, as said earlier in these reasons, both parents criticised the other’s parenting style and personal characteristics and habits. The father was irritated and angered by the mother’s unwillingness to keep to arrangements made. The mother on the other hand, believed the father was too focussed on these minor issues.
The mother said in evidence that the father was a caring father. She acknowledged the father has spent a lot of time with the children as they have been growing up. From about late 2000 until 2002 the father cared for the three children from midday Sunday until Wednesday night each week while the mother was working at MCC away from Sydney. During that period, the mother also worked some shifts on weekends when the father cared for the children. Although the mother said the father received considerable assistance from family and friends during this period, I am satisfied the father, with the mother’s support, took the majority responsibility for the tasks involved in caring for three children day to day. There is no evidence to suggest the father didn’t carry out his responsibilities satisfactorily. Ms GMW, as a work colleague of the father’s for a period, corroborated the father’s evidence that SM and XSM used to walk to his work at 4.00p.m. each afternoon and spend an hour there before going home with him at 5.00p.m. They would do homework, play on the computer and read books under the father’s supervision. They also spent days in their holidays in his workplace. Ms GMW said the children were well behaved and polite. Since becoming a regular visitor to the father’s home, Ms GMW has observed father preparing nutritious meals for children, assisting them with homework, helping CSM with her reading. She said he ensured the children played a role in assisting with light domestic tasks, such as setting the table.
The mother on the other hand, has had the majority responsibility for the children since separation and has proved her capacity to care for them. The evidence was that the children are delightful, articulate and well presented. I have no doubt that both parents have the capacity to care for the children day to day.
The mother said she had the greater capacity in terms of the children’s emotional and personal needs. The mother regarded herself as the parent who best promoted contact with the other parent. Without the need for any court orders, the mother has ensured the children have had regular contact with the father at all times since separation. She has travelled to their schools each day from her residence and met the expense of that travel. Conversely, the father in her view has obstructed her contact with SM and has played a significant role in ensuring a deterioration in her relationship with SM. The mother regarded herself as the parent who best promoted the children’s personal and social development, by ensuring their involvement in extra-curricular and recreational activities and their interaction with friends. Conversely, in her view, the father was a social isolate.
Mr IDB, in his affidavit in support of the mother, made positive remarks about the mother’s capacity to care for her children both physically and emotionally. He said the children were well presented, polite and clean when in the mother’s care. Ms BGB, another witness for the mother who had known her for 8 years, commented favourably on the children in the mother’s care.
The father had a number of criticisms of the mother’s capacity to care for the children. He said the mother did not have the children in a good routine, was careless about their supervision, and unreliable in terms of making arrangements, sometimes causing the children confusion and distress. He said the mother was at times impetuous. At one time, he said the mother threatened to move with the children to Queensland. He said the mother had a habit of keeping the children up too late during the week. He was concerned about the children’s safety when she allowed them to catch a train home from school from Harris Park to Wentworthville, without supervision for a period of several weeks.
In addition, the father said the mother has not always provided the children with appropriate clothing for contact weekends. Ms GMW corroborated his evidence. Ms GMW said she had checked the children’s clothing bags on a number of occasions and found no socks or underwear. She recalled an occasion when the father’s mother was staying and could not take CSM on an outing because CSM had no shoes with her. The father said clothes he purchased for the children drifted back to the mother’s and he found himself with nothing suitable for them to wear. The mother cross-examined the father about this issue and suggested the father wash what he did have.
The father gave an example of the mother’s failure to properly supervise XSM when on one occasion, XSM could not find his mother at their meeting place in a shopping centre and walked to the father’s home from the shopping centre in the dark. The father said the mother shouted at XSM when she finally arrive at the father’s home. The mother said XSM had a habit of wandering away and she had been looking for him everywhere with the assistance of security personnel.
The father complained of the mother being unreliable in relation to collection times and it being very difficult to make arrangements with her. He gave an example of last Christmas when arrangements he said had been made, went awry. He said the mother had a habit of making last minute arrangements without consulting him or warning him, and on a number of occasions, he had found the children at his home unexpectedly well after meal times, having not eaten. He said the mother had at times walked into his home in his absence, uninvited without consulting him first. The father said the mother had a tendency to blame the children when the problem was hers. He gave examples of the mother blaming SM for her failure to relocate successfully to Lithgow and reacting inappropriately towards XSM when he became lost. When XSM did not have his application for entry to a selective school to her on time the mother conceded she was upset and said to XSM “I’d rather be dead than let you live with him”.
The father said he will be the parent to ensure the children have contact with their extended family, including the mother’s family, with whom he enjoys a good relationship. He said SM is soon to be a bridesmaid for her uncle’s wedding, an uncle on the mother’s side of the family. He will attend but not the mother. The father’s mother gave evidence that she has contact with all three children.
The father’s mother gave evidence of her observations of the father with the children, while staying with her son on two contact weekends. She said the father was “excellent” with the children, even taking SM to buy a formal dress. The mother said the father was very fragile and vulnerable when things went wrong and this was potentially a problem which could affect the children.
I am satisfied both parties have different strengths and weaknesses. Both parties should learn to respect the other’s concerns about those weaknesses and minimise them so they can trust the children will be well cared when with the other. None of the weaknesses alleged by either party have satisfied me that the children are at risk in either party’s care. It is important they find ways to communicate their concerns to each other calmly, constructively and effectively so the children are no longer subjected to their conflict.
Need to protect children from physical or psychological harm
The father suffered a mental illness between mid 2000 and February 2001. The mother said the father behaved impulsively and aggressively during this period and described a number of incidents. Although the father disputed some specific details concerning his behaviour during this period, there was no substantial challenge to the facts asserted by the mother, corroborated in part by hospital and police records. On
21 August 2000 SM’s birthday, the mother said the father lifted a large knife above his head and plunged it into the stainless steel kitchen bench. She said the father screamed that he wanted to kill himself and attempted self-harm by making cutting actions with the kitchen knife in front of the children who were then screaming in fear. In September 2000 the mother said she told the father she was separating from him. She said he shaved off his hair and made further threats to take his own life. In October 2000 the mother said she told the father she was dating another man. She described the father becoming agitated and aggressive. The father then locked himself in the toilet with a carpet knife saying he wanted to kill himself. The father was admitted as an involuntary patient to Hospital that evening. The hospital notes confirm the father was admitted on 19 October 2000 until his discharge on 22 October 2000. The diagnosis on discharge was “adjustment disorder with depressed mood”. The notes described the father having been suicidal and slashing himself with a razor blade. The notes said the father told staff his wife had told him she was leaving him for someone else and that he was having trouble at work. He said he did not care whether he lived or died. The psychiatrist’s notes state:
“rigid, perfectionist and dutiful”
“His current mental state is suggestive of an adjustment disorder with depressed mood on a background of obsessive traits.”
In late 2000 the mother said that the father walked through the house with lawnmower fuel and asked the mother for a gas lighter. She said he later laughed about it.
The mother is not persuaded the father has fully recovered from his illness and described further incidents in 2002 and 2004 which she said were suggestive of continuing mental illness. On 6 March 2002 the police were called because of a domestic dispute between the parties. The father denied any physical violence towards the mother. The father annexed the transcript of his interview with police on 6 March 2002. He told police he kicked the mother’s car causing some damage. The mother’s uncontested evidence was that the repairs to the car cost $3,000.00. The father and the mother differed as to whether either child saw the incident. The mother said both children saw the incident. The mother said, and the father denied that the father grabbed and pushed her during the incident. The father told police he was annoyed the mother was going out without having prepared dinner for the children. I am satisfied there was an aggressive exchange between the parties of which the children would have been involved, whether or not they directly witnessed the whole of the incident. The father attended Hospital again that evening for professional assistance. The notes from the Hospital [Ex 3] record the father showing signs of being depressed. He was withdrawn when questioned by police.
A further entry reads:
“Whilst in custody the POI was observed rocking back and forward within the dock area.”
On 26 March 2002 an apprehended violence order was made against the father for a period of 2 years. The father did not contest the application. The mother said in early 2002 the father drove to her boyfriend’s home in a NSW country town and swapped the mother’s car with his own, leaving his car down the road so the mother would think her car had been stolen. The mother said in Easter 2002 the father locked her out of the house. The mother deposed to the father raping her in early 2002 while CSM was sleeping with her. The father denied the allegation of rape. The mother said the father’s behaviour led to her decision to stop communicating with him.
On 21 August 2004, SM’s birthday, the mother said the father paced up and down when the mother came to his home to give SM a gift for her birthday. She said because of the father’s behaviour, she stayed only 15 minutes. The father conceded he did walk in and out of the room. He said he wanted the mother to leave, irritated by the mother’s decision to arrive at his home without warning.
I am satisfied the father has suffered severe depression in 2000 and took anti-depressant medication and underwent counselling until February 2001. The father conceded he acted irrationally during that period. He says he has not suffered any relapse since. There was no evidence before me to suggest the father suffers depression currently, although I am satisfied on the basis of the notes from the Hospital on 7 March 2002 that the father was exhibiting symptoms of depression at the time of the incident on 6 March 2002.
There have been no reports of violence since the mother obtained an apprehended violence order in March 2002 and the order has now expired. I am not satisfied the father’s mental illness has reduced his capacity to care for the children, nor had any significant impact on his capacity to care for them even when he was severely depressed in October 2000. The mother did not dispute that she left the children with the father when she returned to her job away from Sydney the day after the father was discharged from hospital. I agree with the submission of counsel for the father that the mother must have been satisfied the children would be well looked after by the father, despite his illness.
I am however, satisfied on the unchallenged evidence of the father, corroborated by Ms GMW that the mother has made derogatory and destructive comments about the father within the children’s hearing using words like “you don’t care about your children”, “you are a bad father”, “you are irresponsible”, “you raped me”. The father is rightly concerned about the impact of the mother’s comments about him on the children. The mother admitted to making negative comments about the father. She said “we both do it” and I believe that is likely. I have concerns about the continuing harm being caused to the children by the parties’ entrenched conflict, which the children have been subjected to for a number of years and which both parties concede is ongoing. The events of the weekend immediately prior to XSM starting high school are a stark example of the parties’ failure to prioritise the needs of the children ahead of their own needs when they argued about where XSM would start his secondary schooling. All three children were involved in this incident. Neither party had ensured any certainty for XSM by resolving his secondary schooling issue well in advance of the school year. I am persuaded that both delayed the decision until the 11th hour, hoping one would be successful in out-manoeuvring the other. XSM had no uniform for any school until that weekend. He knew his mother wanted him at one school and his father at another. His mother was asking XSM to decide the issue of his schooling in front of both parents, arguing through a screen door. Ms GMW was sitting with XSM holding his hand while his parents battled it out. She described XSM as quiet with his head down listening to his parents. It is difficult to imagine a more stressful situation for a child about to start high school for the first time. It became necessary for this court, on the first day of school, to decide the question of XSM’s schooling for 2005. I have no doubt XSM spent his first day at MBHS well aware his parents were in court over the issue.
The father acknowledged that the mother’s behaviour triggered such frustration in him that he became verbally aggressive at times. He acknowledged that at times the parties argued vehemently. Both parties hoped that when formal orders in relation to parenting and schooling were in place, their conflict would diminish.
Attitude of each parent to the responsibilities of parenthood
Despite the problems between the parties and their anger towards each other, I am satisfied both are committed to the needs of their children, are devoted to them and want what is best for them.
I am satisfied that both parties have at times made errors of judgment which have reflected badly on them as parents. I expect some have had more serious consequences for the children than others, and some have caused greater concern to the other parent than others. I am also satisfied that both parties have at times put the children’s needs well ahead of their own, despite the inconvenience and irritation the other party might have caused them.
The mother complained that she was the more responsible parent when the children were ill. She had taken days off as holiday leave to care for the children when her sick leave had expired. She had found the father uncooperative when she had asked him to share that responsibility. The father agreed he had refused to take days off when the children have said they were too sick for school, because on other occasions when he had stayed home, there had been nothing wrong with them. He said he had stayed home with SM when she had been ill.
I find it more probable that the mother has taken responsibility for a sick child than the father.
It was not in dispute that the mother left the home in January 2001 with the three children with a plan to live in Lithgow with her then boyfriend. This caused major disruption to the children, particularly SM who was forced to start a new high school a week late, without a suitable uniform, as a result. The father said he had to deal with the practical issues of sorting out the children’s school and care arrangements when the mother realised she would have to return. The mother said she should be credited with the sense to move back when she realised her plan was not going to work and returned in 3 weeks. All the children were a week late back at school, but this particularly affected SM. Ms GMW recalled SM arriving at their office after school in a uniform far too big for her. There had been no uniforms available because of her late start at school. The mother has paid a high price for her mistake because on her own evidence, this period in the NSW country town was the beginning of SM’s change in attitude to the mother.
The father alleged in his affidavit of September 2004 that the mother moved from a suburb near to his residence and the children’s schools, to Greater Western Sydney on 21 September 2004 as a result of the father telling her he thought the children should live with him, by letter of 8 September 2004. The father said the mother did not consult with him about her intention to move. Although the mother said the timing of her move was a coincidence, and she had arranged the move before receiving his letter, I regard the mother as having shown poor judgment in failing to consult with the father about her move and the impact that may ultimately have on the children, being moved so far from the father and from their school.
The mother wanted to change the children’s school from RH Public School in 4th term 2004, although XSM was in his last term of primary school at RH Public School where he had been since Year 1. Although the mother consented to XSM finishing his schooling at RPS, I find her decision to raise the issue an example of her poor judgment at that time. I have already referred to the parties’ poor management of arrangements for XSM’s schooling at the beginning of this year.
The father’s behaviour during the period of his illness and in early 2002 set out in detail already in these reasons demonstrated some of his serious lapses in parental judgment at those times.
Parenting arrangements and schooling
Both parties acknowledged the importance of the other parent in the lives of the children. Both conceded the children should have more time with the non-resident parent than sought in their orders at the commencement of the hearing. The mother submitted that she had successfully cared for the children since separation, and given their wishes as expressed to Ms Seres, there was no reason to make any substantial change to those arrangements. I agree with the mother’s submission and have decided the children should spend more time living with the mother than with the father. This also accords with the children’s expressed wishes.
I agree with Ms Seres however, that the children, particularly XSM should spend more time with his father than he is presently, and I have made orders accordingly. XSM will spend five nights each fortnight with his father. CSM will also be spending more time with her father, but four nights each fortnight. I have considered CSM’s concern that the father does not have a separate room for her at this stage but have taken into account the father’s evidence that he is mindful of CSM’s needs in this regard. I agree with the submission from counsel for the father that in the circumstances of this case, it would work better for the children to have extended weekends with their father rather than more frequent visits. There should be less opportunity for forgotten homework, lack of appropriate clothing and more opportunity for a regular routine during school terms. There should be also be less need for conflict between the parties. The children spending some weeknights with the father will give the mother some respite from the travelling involved for her.
I have given careful consideration to the schooling issue for both children. Because XSM and CSM will be spending most of their time living together, I am satisfied it is in their interests to be at school in the same area. The question then is whether they should both move, or neither should move. There are arguments for a change in schools in that the children will be living the majority of their school term time with the mother and she intends, at least in the foreseeable future, to remain living in Greater Western Sydney. The children would be living close to their schools and would be in a better position than they are presently, to develop friendships in their local area. However, attending school locally to their mother will mean very long days in care for CSM as long as the mother works at her current location. From XSM’s perspective, if the change were to occur, his wish to remain at his present school would not be met. He would miss out on the opportunity to spend his afternoons in his father’s home with SM and to see his father on some afternoons. Ms Seres regarded XSM’s link with the father’s home each afternoon as important to him. In relation to his schooling, I have given considerable weight to XSM’s wishes. XSM is a bright student with excellent results from Year 6. From all accounts he is performing well this year and enjoying MB High School. He has favourite subjects which may or may not be taught at G High School. His start at school this year was stressful, his home life has been difficult, he is young in his year, he is less confident than CSM and Ms Seres believed his stability was best promoted by allowing him to remain at MB High School. I am persuaded that it is in XSM’s best interests to remain at his present school. I am therefore satisfied that it is best for CSM to remain at RH Public School where she has spent her schooling to date. Although CSM expressed a wish to move schools, I agree with Ms Seres that CSM is too young to understand the ramifications of a change in school and her wishes should not be persuasive. I am satisfied it would not be in her interests to be at a school and in care arrangements a long distance from her brother. There is no evidence to suggest the children have not coped with the travel. In relation to her assessment that the children should remain where they are at school, Ms Seres said in evidence “it is their one continuity.”
I am satisfied the Orders I have made are in the best interests of the children.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Collette McFawn
Date: 18 May 2005
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