Gatenby and Chisler (No. 2)

[2019] FamCA 443

FAMILY COURT OF AUSTRALIA

GATENBY & CHISLER (NO. 2) [2019] FamCA 443

FAMILY LAW – PARENTING – Determining what is in the best interests of the children – considering the best interests of each of the three children – noting the individual characteristics of each of the children – whether different orders should be made for the different children – where there has been a relationship breakdown between one child and one of the parents.

FAMILY LAW – PARENTAL RESPONSIBILITY – Where the parties largely agree on matters of parental responsibility – where the parties agree on equal shared parental responsibility despite the parties having poor communication – where one parent wants to introduce the children to their biological half siblings and the other parent does not – where the parties seek that the Court determines parental responsibility in relation to the biological half siblings.

FAMILY LAW – REOPENING – Where the case was reopened following hearing and prior to the delivery of judgment – where new evidence was presented – where one child has run away on several occasions since the previous hearing – where one child is refusing to see or to be in the care of one parent.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
International Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) Article 8

Morgan v Miles (2007) FLC 93-343
Ralton & Ralton [2017] FamCAFC 182
U & U (2002) 211 CLR 238

APPLICANT: Ms Gatenby

RESPONDENT: Ms Chisler

FILE NUMBER: MLC 3057 of 2016

DATE DELIVERED: 8 July 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Melbourne

JUDGMENT OF: Gill J

HEARING DATE: 29 October – 1 November 2018; and 15 – 17 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson (2018 hearing)

SOLICITOR FOR THE APPLICANT: Marshalls and Dent and Wilmoth (2018 hearing) and self-representing (2019 hearing)

COUNSEL FOR THE RESPONDENT: Ms Stoikovska

SOLICITOR FOR THE RESPONDENT: Leanne Cain & Associates

Orders

1. That Ms Chisler and Ms Gatenby have equally shared parental responsibility for B (born … 2006), C and D (both born … 2008) (“the children”);

2. That, unless otherwise agreed by the parties in writing, B live with the parties on the following basis:

   (a)       During school term:

   (i)With Ms Gatenby each second weekend from the end of school time on the Friday until the recommencement of school the following week, commencing on the first weekend following the start of each school term;

   (ii)Otherwise with Ms Chisler;

   (b)During school holiday time other than during the long summer break and other than the July 2019 school holidays:

   (i)In even numbered years with Ms Chisler from the conclusion of school term until 5pm on the Saturday closest to the mid-point of the break and with Ms Gatenby from then until the commencement of school;

   (ii)In odd numbered years with Ms Gatenby from the conclusion of school term until 5pm on the Saturday closest to the mid-point of the break and with Ms Chisler from then until the commencement of school;

   (c)       During the long summer break:

   (i)For long breaks commencing in even numbered years with Ms Chisler from the conclusion of school until 5pm on the mid-point day and with Ms Gatenby from 5pm on the mid-point day until the conclusion of school on the first Friday following the commencement of the school year;

   (ii)For long breaks commencing in odd numbered years with Ms Gatenby from the conclusion of school until 5pm on the mid-point day and with Ms Chisler from 5pm on the mid-point day until the conclusion of school on the first Friday following the commencement of the school year;

   (iii)For the purposes of calculating the mid-point day, the school holidays be deemed to commence from the conclusion of school on the last day of the school term and conclude at the  commencement of the first day of the new school year;

3. That, unless otherwise agreed by the parties in writing, C and D live with the parties on the following basis:

   (a)       During school term:

   (i)With Ms Gatenby each alternate week from the end of school time on the Friday until the conclusion of school the following Friday, commencing on the first Friday following the start of each school term;

   (ii)Otherwise with Ms Chisler;

   (b)       During school holiday time other than during the long summer break:

   (i)In even numbered years with Ms Chisler from the conclusion of school term until 5pm on the Saturday closest to the mid-point of the break and with Ms Gatenby from then until the commencement of school;

   (ii)In odd numbered years with Ms Gatenby from the conclusion of school term until 5pm on the Saturday closest to the mid-point of the break and with Ms Chisler from then until the commencement of school;

   (c)       During the long summer break:

   (i)For long breaks commencing in even numbered years with Ms Chisler from the conclusion of school until 5pm on the mid-point day and with Ms Gatenby from 5pm on the mid-point day until the conclusion of school on the first Friday following the commencement of the school year;

   (ii)For long breaks commencing in odd numbered years with Ms Gatenby from the conclusion of school until 5pm on the mid-point day and with Ms Chisler from 5pm on the mid-point day until the conclusion of school on the first Friday following the commencement of the school year;

   (iii)For the purposes of calculating the mid-point day, the school holidays be deemed to commence from the conclusion of school on the last day of the school term and conclude at the  commencement of the first day of the new school year;

4. That in the event the children are not already spending at least two consecutive nights with Ms Gatenby (pursuant to any other Order herein) during Hanukkah, the children’s time with Ms Chisler will be suspended for two consecutive nights from after school (or 5pm if a non-school day) until the commencement of school (or 5pm if a non-school day) with such days to be agreed between the parties and in default of agreement for the first and second nights of Hanukkah each year, with Ms Chisler to have make-up time as agreed in the week prior or the week after Hanukkah. 

5. Notwithstanding any other provision in these Orders:

   (a)       The children will spend time with the parties for Christmas as follows:

   (i)In odd numbered years:

   A.With Ms Gatenby from 1pm on 24 December until 1pm on 25 December; and

   B.With Ms Chisler from 1pm on 25 December until 1pm on 26 December.

   (ii)In even numbered years:

   A.With Ms Chisler from 1pm on 24 December until 1pm on 25 December; and

   B.With Ms Gatenby from 1pm on 25 December until 1pm on 26 December.

   (b)The children will spend time with each parent on the parent’s birthday (if they are not already in the care of that parent) from after school (or 10am if a non-school day) until the commencement of school the following day (or 10am if a non-school day).

   (c)On each child’s birthday that child will spend time with the non-resident parent from the conclusion of school (or 3.30pm if a non-school day) until 7.30pm that day.

6. Each party shall facilitate the children to communicate by electronic communication with the other party at all reasonable times as requested by the children.

7. Each party is restrained from saying bad things about the other party in the presence of the children.

8. It is declared that the decision to introduce the children to their donor siblings (diblings) is a decision about a major long term issue and so requires the parties to comply with their obligations pursuant to s 65DAC in relation to making such a decision.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gatenby & Chisler (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law
Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: MLC 3057 of 2016

Ms Gatenby

Applicant

And

Ms Chisler

Respondent

REASONS FOR JUDGMENT

Introduction  

1. The parties to these proceedings are Ms Chisler, the Applicant Mother (“Ms Chisler”), and Ms Gatenby, the Respondent Mother (“Ms Gatenby”).  The parties were in a de facto relationship from late 2000 to early 2016.  There are three children of the relationship: B, born … 2006; C, born … 2008; and D, born … 2008.  The children generally refer to Ms Chisler as “Mummy” and Ms Gatenby as “…”.  These proceedings concern the parenting arrangements for the three children.

Procedural History

1. In April 2016, Ms Gatenby initiated proceedings in the Family Court of Australia.  A final hearing for both the property and parenting matters was held over a period of five days, commencing on 13 November 2017 and concluding on 17 November 2017.  Justice Bennett made Final Orders on 17 November 2017.  Justice Bennett’s Orders provided for the children to live with Ms Chisler and Ms Gatenby on a 9:5 basis.  That is, nine nights with Ms Chisler and five nights with Ms Gatenby.  Ancillary orders were made by consent in relation to school holiday arrangements, special occasions, and related matters.

2. Ms Gatenby filed an appeal in relation to the parenting orders made by Justice Bennett.  The appeal was allowed by consent in May 2018.  A rehearing of the parenting matter was held over a period of four days, commencing on 29 October 2018 and concluding on 1 November 2018.  Judgment was reserved.

3. On 19 February 2019, Ms Chisler filed an application seeking leave to reopen the aforementioned parenting matter.  Ms Chisler sought to adduce evidence relating to events that had taken place since the 2018 hearing.  On 3 April 2019 leave was granted to reopen the parenting matter.  A further hearing of the parenting matter was held over a period of three days, commencing on 15 May 2019 and concluding on 17 May 2019.  Judgment was reserved.

Central Issues

1. Despite the broad spread of incidents relied upon during proceedings, the focus of the parties’ contest can be narrowly described as below.

2. The case presented, in general terms, by Ms Chisler was that the mode of Ms Gatenby’s parenting and the nature of her relationships with the children, as manifested by the children, were problematic and meant that her time with the children should be scaled back.  Ms Chisler notes different approaches to parenting between herself and Ms Gatenby, and asserts that her approach is better.

3. Again in general terms, the case presented by Ms Gatenby was that Ms Chisler is causal of problems encountered between Ms Gatenby and the children.  Ms Gatenby acknowledges that there are different modes of parenting brought by herself and Ms Chisler, but says that they are equally beneficial to the children.

4. The third primary limb, again in general terms, was that the parties have such a dysfunctional co-parenting relationship that it is negatively impacting upon the children.

5. These areas of focus call for careful analysis of factual matters that each of the parties introduced that go to the following issues:

   a)the individual characteristics of each of the children;

   b)the nature of the relationships between each of the children and the parents;

   c)the causes behind the relationships;

   d)the nature of the parenting of each of the parties; and

   e)the nature and sources of parental conflict.

6. When it comes to assessing the best interests of each of the children, it is necessary to do so, as discussed later in the judgment, in reliance upon the considerations set out at s 60CC of the Family Law Act 1975 (Cth) (“Family Law Act”). The matters relied upon principally by the parties draw upon the considerations as they relate to the benefits of meaningful relationship, the views of the children, the children’s individual characteristics and the respective parenting capacity of the parties. These matters were so dominant in the manner of the running of the case by the parties as to give the balance of the s 60CC considerations limited, if any, significance.

7. It is not suggested that the above summary completely sets out the matters raised by the parties in the case, but it does conveniently identify the focus that each brought in presenting their cases.  It is also the case that each of the above matters is so entwined with the others that they cannot sensibly be discussed separately.

8. In dealing with these matters, it is convenient to break the issues down to the manner of parenting prior to separation, what has occurred from separation until the first limb of the current hearing, and then what has occurred pending the reopening.  This is approached in large part by description of the conduct that each of the parties identifies as important.  Both the significance of the conduct (particularly of the children) and the causes are inferentially drawn from the circumstances.

9. Again, it is convenient to set out the general scope of the evidence for each of these periods of time. 

10. There is conflict between the parties as to the precise levels of engagement that each had with the children prior to separation.

11. Following separation and prior to the 2018 hearing, there have been a series of incidents involving the children, predominately B, refusing to spend time with Ms Gatenby, and complaining about Ms Gatenby.  Ms Chisler suggested that these incidents were representative of the children’s views, whilst Ms Gatenby contended that these incidents were a result of the pressure placed upon the children by Ms Chisler.

12. The Single Expert spoke of these issues in terms of B being subject to a loyalty bind between the parties who are in strong conflict, resulting in her choosing a side in that conflict. 

13. Prior to the reopened hearing in 2019, the nature and frequency of the incidents, particularly in relation to B, significantly escalated.  This escalation manifested in violent behaviour toward Ms Gatenby, and has involved Ms Gatenby calling the police on one occasion in response to B hurting her.  While the details of the relevant incidents are discussed below, it is important to note this change in circumstances early on.  The escalation was by no means the sole focus of the proceedings, nor is it the sole focus of this judgment.  However this matter is of great significance particularly where since 25 April 2019, B has not seen Ms Gatenby, and that Ms Gatenby in turn does not wish to see B until B has received therapeutic assistance.

14. At the reopening in 2019 the parties agreed to orders for therapeutic intervention for B.  Accordingly, pending judgment B and the parties have been engaged with Mr FF therapeutically.

Orders Sought

1. The precise details of the orders sought by the parties are set out in an annexure at the end of this judgment.  The general terms of the orders are summarised below. 

2. Each party sought an order for equal shared parental responsibility.

3. Ms Chisler sought that the children live with her and spend alternative weekends and alternative Wednesday afternoons with Ms Gatenby.

4. Ms Gatenby sought that the children live with each of the parties during the school term on a week-about basis, and that the time spent during the school holidays be split evenly between the parties.  Initially, Ms Gatenby sought primary care as a fall back.  However, this was not a position pursued at the close of the reopened hearing.  

5. During the reopened hearing, it became apparent that the orders sought by the parties may need to be adapted so as to best respond to the change in circumstances, namely the breakdown in the relationship between B and Ms Gatenby.  For example, the possibility of different parenting orders for B and the boys (C and D) was raised.  The parties made submissions on this issue, and both parties stated that they did not think such an order was in the best interests of the children.

6. During her closing submissions in the reopened hearing, Ms Gatenby told the Court that she was prepared to make an undertaking that she would not enforce any parenting order which involved B spending time with her, before B was ready.  Ms Gatenby stated that she would not enforce a parenting arrangement that B was not ready for, or that may be harmful to B.  However, it was unclear how an undertaking to not to enforce orders of this Court would operate in practice (or be otherwise proper).

7. Alternatively, Ms Gatenby sought orders that included what she described as a “sunset clause”.  That is, Ms Gatenby sought parenting orders that provided for B to spend limited time with Ms Gatenby for the first six months and then a transition to an equal time arrangement.  Ms Gatenby suggested that this type of order would allow time for both herself and B to work on their relationship under the guidance of a family therapist. 

8. Both of Ms Gatenby’s proposed orders were largely dependent upon a mending of the relationship between herself and B.  That is, for an equal time arrangement to be successful at any point in the future, B and Ms Gatenby must want to spend time together, and a significant change in their relationship dynamic must be achieved. 

Consent Orders Made

1. At the close of the reopened hearing the parties agreed to immediate orders that provided for family therapy with Mr FF.  The parties agreed to follow Mr FF’s recommendations, including whether B should see a professional independently from the parties, presumably a psychologist (pending judgment).  The Consent Orders also provided that B’s time with Ms Gatenby was predicated upon the recommendations of Mr FF.

2. The parties are to be commended on their efforts to come to this agreement.  The issue of family therapy was of some contention throughout the reopened hearing and their ability formulate these Consent Orders is a positive step forward.

Material Relied On

1. Ms Gatenby relied upon the following:

   a)Further Amended Initiating Application filed on 14 June 2018;

   b)Application in a Case filed on 17 October 2018 (for leave to rely upon affidavit of Ms EE);

   c)Affidavit of Ms Gatenby filed on 14 June 2018;

   d)Affidavit in Reply of Ms Gatenby filed on 19 July 2018;

   e)Affidavit of Ms Gatenby filed on 26 October 2018 (leave granted during proceedings on 29 October 2018);

   f)Affidavit of Ms EE filed on 26 October 2018 (leave granted during proceedings on 29 October 2018).

   g)Affidavit of Ms S filed on 11 April 2016;

   h)Affidavit of Mr R filed on 27 April 2016;

   i)Affidavit of Ms GG filed on 14 July 2017;

   j)Affidavit of Ms T filed on 14 July 2017;

   k)Affidavit of Ms HH filed on 14 June 2018;

   l)Affidavit of Ms EE filed on 17 October 2018 (leave granted during proceedings on 29.10.2018);

   m)Initial Family Report dated 8 June 2016 – annexed to Affidavit filed on 24 June 2016;

   n)Updated Family Report dated 28 July 2017 – annexed to Affidavit filed on 8 September 2017;

   o)Further Updated Family Report dated 7 September 2018 – annexed to Affidavit filed on 22 October 2018;

   p)Supplementary Family Report dated 10 May 2019;

   q)Affidavit of Ms Gatenby filed on 3 May 2019;

   r)Affidavit of Ms EE filed on 3 May 2019;

   s)Affidavit of Ms DD filed on 3 May 2019; and

   t)Affidavit of Ms JJ filed on 3 May 2019.

2. Ms Chisler relied upon the following:

   a)Further Amended Response to Initiating Application filed on 29 June 2018;

   b)Affidavit of Ms Chisler filed on 29 June 2018;

   c)Affidavit of Ms O filed on 5 July 2018;

   d)Affidavit of Ms KK filed on 5 July 2018;

   e)Affidavit of Ms Chisler affirmed 24 October 2018 (leave granted during proceedings on 29 October 2018 to be read in full);

   f)Affidavit of Ms Chisler filed on 26 April 2019; and

   g)Affidavit of Ms O filed on 26 April 2019.

Parenting pre-separation

Care Arrangements

1. The parties are in dispute about the precise care arrangements for the children prior to separation in 2016.  In particular, the parties disagree about the extent to which Ms Gatenby cared for the children.  Ms Chisler states that she was the primary carer for the children.  However, Ms Gatenby presented evidence of periods of time in which she rearranged her work in order to be more closely involved in the care of the children.  In 2008 Ms Gatenby took six months for leave around the time of the twins’ birth, with a reduced workload in 2011 which enabled her to be present for more hours with the children, and leave for another period of six months in 2013.  Ms Gatenby further contends that Ms Chisler engaged in demanding work from 2015, and that the flexibility of Ms Gatenby’s work arrangements meant that she was able to provide more care for the children.

2. The significance of any imbalance in the care arrangements until separation was not dwelt upon in submissions, sensibly, as any significance is negligible by virtue of the parties’ transition into equal time as outlined below.

3. What is of some assistance is the evidence of Ms T.  Ms T was a mutual friend of the parties and cared for the children while the parties were still in a relationship.  In her evidence, Ms T presented as emotional and combative, and very supportive of Ms Gatenby.

4. Ms T assessed the relationship between the children and Ms Chisler as difficult and, at times, fearful.  However, she still assessed the relationship between the children and Ms Chisler as “close”.

5. Ms T was also cross-examined in relation to an event alleged to have occurred in 2014.[1] Ms T stated that she babysat the children, and that upon the parties returning home Ms Chisler ‘screamed’ at B words to the effect that “she [B] was being a spoilt fucking little bitch”, and was quite aggressive and angry towards B.

   [1] Affidavit of Ms T filed 14 July 2017 [11-12]

6. Ms T’s evidence was challenged on the basis that Ms Chisler did not, and never would, swear at the children.  The witness could not recall Ms Gatenby swearing at the children.

7. As noted above, the witness was emotional and appeared strongly supportive of Ms Gatenby.  She denied being untruthful about the matter.  The appearance of emotion was congruent with her description of her love for the children, and did not undermine her credibility as to the nature of the incident that occurred.

8. The significance of her evidence is not to paint Ms Chisler as a poor parent, but rather to note that each set of parental relationships has occasions of difficulty.

Separation

1. Upon separation in February 2016, Ms Chisler moved out of the family home and into rental accommodation with her mother.  This home was approximately 400 meters from the family home.  Initially, the children effectively spent four nights per week with Ms Chisler and three nights per week with Ms Gatenby.

2. The parties were in conflict over the removal of items from the former family home following the breakdown of their relationship.  Ms Gatenby insisted that she would determine what items belonged to Ms Chisler and leave said items in the garage for Ms Chisler to collect.  Ms Chisler did not collect the items left for her, but instead collected different items from the garage.

3. Ms Gatenby complains that she did not want Ms Chisler coming back into the family home where she was residing (without some form of constraint).

4. Ms Chisler complains that the insistence on the part of Ms Gatenby that she would choose the items that would go to Ms Chisler was an example of the autocratic manner in which Ms Gatenby relates.

5. Ms Chisler alleges that Ms Gatenby cut up her clothing following separation.  Ms Gatenby was not cross-examined as to this.  No finding should be made that this occurred.

6. The breakdown of a relationship is fertile ground for the mistrust then demonstrated by Ms Gatenby and for the resistance then demonstrated by Ms Chisler.  Little is to be derived from the above circumstances other than as it speaks to the lingering bad blood between the parties.

7. The parties soon moved to an equal shared time arrangement.  However, this broke down in April 2016 when Ms Chisler withheld the children from Ms Gatenby.  Ms Chisler unsuccessfully applied for an Intervention Order (Ms Chisler withdrew at the Final Application).  Ms Gatenby filed proceedings in the Family Court of Australia.  Ms Gatenby was able to see the children sporadically during April 2016.

8. The parties then returned to an equal shared time arrangement, with the children staying 5:2 one week and 2:5 the next.  This arrangement has continued, save for a short break following the first trial of this matter in 2017, until the start of the current trial.

Incidents relied upon at the first phase of the current trial

The Children Running Away and Other Incidents

1. While the parties traversed a large number of incidents in their trial material, not all of the incidents were focused upon at hearing (both the 2018 and 2019 reopened hearing).  This judgment primarily discusses those incidents that were focused on at hearing, and does so with an awareness that they sit within a larger factual context.

2. The parties have made numerous allegations about the children’s relationships with each of them, each supporting their contention by reference to a collection of various incidents.  The incidents include: B and C running away from Ms Gatenby; B and C refusing to spend time with Ms Gatenby; and the children saying that they were not enjoying their time with Ms Gatenby. 

3. The various incidents were used by both of the parties to demonstrate the nature of the relationships between the parties and the children.  Ms Chisler contended that the children running away illustrated their view that they wish to live with her.  Ms Gatenby contended that the children running away illustrated the pressure Ms Chisler placed on the children.

The Deleted iMessage Incident – August 2017

1. On 13 August 2017 an incident occurred between Ms Gatenby and B.  During the incident, Ms Gatenby accepts that she used the work “fucking” directed at B and that B was shocked by this and genuinely scared by the incident.  Ms Gatenby says that she apologised to B.

2. Following the incident there was an exchange of text messages between B and Ms Chisler.  Ms Gatenby became aware of the exchange, and that B had deleted one of the text messages B had sent to Ms Chisler.  B told Ms Gatenby that the message she had deleted described Ms Gatenby swearing at her and that B had been scared.  Ms Gatenby accepted that she then became upset and cried in front of the children.  Although under cross-examination she initially denied it, when confronted by transcript of her testimony at the Bennett J trial, Ms Gatenby accepted that her crying was hysterical at this point and that she had said “this is going to be used against me.”  That is, Ms Gatenby had become upset and communicated to the children that incident may be used against her in the court proceedings.

3. Ms Gatenby says that she then put a movie on for the children, went to her study and closed the door because she was upset and hurt.

4. It may be reasonably anticipated that both the verbal abuse by Ms Gatenby, and her upset at B raising it with Ms Chisler were likely to impact heavily upon B.  It would be reasonable for B to be scared as described by Ms Chisler in response to what she experienced.  The evidence from Ms Gatenby did not speak to an overall resolution of the incidents with B.

C's School Refusal

1. Ms Gatenby was cross-examined about C’s refusing to attend school and acting out at school when in Ms Gatenby’s care at about the time of the Bennett J trial.  Any recurrence since then has been so limited that it should not be accorded weight.  It does not appear to be a current phenomenon at the time of the reopening of the trial.

The Closet and Macaron Incident – October 2018

1. The closet and macaron incident was a central incident in the 2018 trial.  For Ms Chisler, it was illustrative of B being afraid of Ms Gatenby.  For Ms Gatenby it was illustrative of B communicating with Ms Chisler in a manner that did not represent a true picture of what was going on for her in Ms Gatenby’s home. 

2. Ms Chisler stated that while she was away on holiday in Country MM she was contacted by B while B was staying with Ms Gatenby.  Ms Chisler and B began a FaceTime session.  Ms Chisler alleges that Ms Gatenby yelled at B causing her to terminate the FaceTime session.  Ms Chisler subsequently received a message from B which said “what do I do I’m in my closet hiding from her I just want to talk to you”. 

3. A further FaceTime session occurred between Ms Chisler and B, with B sitting in her closet.  Ms Chisler stated that during this conversation, B was “scared and frightened”, with that fear expressed in relation to Ms Gatenby.  Although B had said that she wished to leave Ms Gatenby’s home to go to Ms Chisler’s mother’s home, Ms Chisler says that she persuaded B not to.

4. Ms Gatenby denies that this is how the exchange took place.  Ms Gatenby accepts that the message was sent and that B FaceTimed Ms Chisler from her closet.  Ms Gatenby says that this, she thought, was in response to B feeling that she was in trouble because she had been on FaceTime in Ms Gatenby’s bedroom (which was prohibited by Ms Gatenby).  Ms Gatenby said that she had innocently called out to B that she was ready to make macarons with her which must have caused B to abandon the FaceTime session, knowing it was taking place in Ms Gatenby’s bedroom.  Ms Gatenby asserts that she and B had a pleasant time making macarons.

5. Ms Chisler was cross-examined in relation to this incident.  Ms Chisler was asked how she knew B was “scared and frightened”, and whether B was crying.  Ms Chisler said that B was not crying, but was “panicked”, and that the pitch of B’s voice was “high” and her tone distressed.

6. Ms Chisler was then shown two videos, taken on the same day that showed B and Ms Gatenby making macarons.  Both B and Ms Gatenby appeared happy in the videos.  Ms Chisler was questioned as to the incongruence between her evidence as to B’s distressed presentation, and the video demonstrating B happily interacting with Ms Gatenby.

7. Ms Chisler accepted that B’s behaviour in the videos did not demonstrate fear.  However, Ms Chisler stated that when B called her she was “panicked”, “a girl scared in the cupboard”, and that at some later point B and Ms Gatenby made macarons and the fear was not present at that point.  Ms Chisler stated that she believed B “has moments” where she is frightened of Ms Gatenby, but that B is not frightened of Ms Gatenby all day every day.

8. Ms Chisler was questioned as to whether she had entertained the possibility that B’s fear was not genuine, to which she replied that she did not think there “is any possibility” that the fear was not genuine.  Ms Chisler contended that despite the incongruence between what she perceived as to B’s emotional state in the cupboard, and B’s emotional state in the video, Ms Chisler believed B’s fear to be real. 

9. The incontrovertible aspects of the message being sent, and the communication taking place in the closet, combined with the evidence of Ms Chisler as to Ms Gatenby’s yelling, leads me to conclude that Ms Gatenby’s completely benign description of the interaction should not be accepted.  This calls for some caution in relation to Ms Gatenby potentially minimising her conduct toward B.

10. However, the further material presented of a video recording of B involved in the macaron cooking revealed no hint of tension between Ms Gatenby and B.  Following the closet call B appeared to be enjoying herself and at ease in her interactions with Ms Gatenby.  While the interaction between Ms Gatenby and B that led to her being in the cupboard is not as benign as described by Ms Gatenby, any effects upon B were transitory and led to no apparent discomfort between her and Ms Gatenby.  Although Ms Chisler denied the possibility that the fear she observed as demonstrated by B was other than genuine, she accepted, in the context of her knowledge of B, that in the cooking video B appeared happy, that B looked comfortable, and that she could not see any fear in B at that point.

11. While it may be accepted that B displayed some distress at Ms Gatenby’s yelling, whether as a result of exaggeration by Ms Chisler, or by B, the interaction between B and Ms Gatenby has been blown out of proportion.  B’s appearance shortly after means there should be some caution before accepting B at face value, or Ms Chisler’s perception of B’s distress at face value. 

B Running Away – 25 October 2018

1. Ms Gatenby stated that on Thursday 25 October 2018, she collected the children from school, dropped D at a friend’s home for a play date, and returned home with B and C.  Ms Gatenby had a haircut scheduled for 6:00pm at a friend’s home across the road, and the children knew this.  Ms Gatenby stated that B “kept asking me what time I would leave and return”.  Ms Gatenby stated that she left the home at 6:02pm and, upon finishing her haircut, she checked her phone and noticed that she had two missed calls from Ms Chisler, at 6:30pm and 6:47pm, and a text message from B received at 6:27pm.  Ms Chisler had left two voicemails.  In the voicemails Ms Chisler advised Ms Gatenby that B had run away to Ms Chisler’s home.  B’s text message stated “I am at mummy’s”.

2. Ms Gatenby stated that she checked the travel time between her house and Ms Chisler’s home and found that it was estimated to be a 30 minute walk on Google Maps.  Ms Gatenby stated that she did not believe B to have been capable of travelling this distance in the 24 minutes between Ms Gatenby leaving the house for her haircut and B texting her at 6.27pm saying “I am at mummy’s”.

3. Ms Chisler was cross-examined about whether she had collected B, either on her scooter or in a motor vehicle.  Ms Chisler denied that she had done either and indicated that, due to a recent operation, she was unable to ride the scooter and could not even drive a motor vehicle.  Later, however, it emerged from Ms Chisler’s evidence that she had been driving a motor vehicle that day and shortly before B’s attendance at her home.  Ms Chisler had driven to her workplace in order to attend court to inspect documents.  Ms Chisler had driven home afterwards.  Despite Ms Chisler’s assertion that she could not drive, this was clearly not the case.  This evidence calls for caution in relation to Ms Chisler.

4. Ms Gatenby stated that she subsequently looked at her iPhone 6, which is connected to B’s iPad, upon which she found the following messages:[2]

   [2] Affidavit of Ms Gatenby filed 26 October 2018 [19]

   a)From B to Ms Chisler at 1:53pm on 25 October 2018:

   “I don’t want to be at Ms Gatenby’s.  I cried today at school.  I am going to try and get out tonight.  I am going to walk/run with a bag on my back and bolt to your house.  I will attempt to get out maybe at 5:00 or whenever AA isn’t looking.  I will pack things like my iPad.  I will make her a bath and act all nice.  I will go out the front way past the rubbish bins.  I will send you a heart emoji when I leave.  I love you so much.  By the way Ms Gatenby is picking us up at 3:00 today from school.  I really don’t want to go with her to … [sic] but I have to suck it up for an hour or so.  Send my love to grandma J.  Send me a heart when you are home.  I will delete my side of the chat so Ms Gatenby won’t snoop.  So when I send this to you don’t delete your chat.  I hope I can get out of there tonight because I just can’t handle it anymore.  If I arrive at the house and you aren’t there I will go in the backyard – not the house.  I am really praying that I can get out of there without her realising.  Send a smiley fce [sic] when you get this text and have seen it.  I will change the passcode to my iPad as well because I don’t want her knowing it anymore.  I will also give you the password to my iPad.  If I get to your house will not go back to Ms Gatenby’s knowing she won’t treat me right.  She says she is a “…” but she isn’t doing any more good than Donald trump [sic] is to Mexico.  I love you sooooooooooo [sic] much.”

   b)From Ms Chisler to B at 5:05pm on 25 October 2018:

   “I am just heading home.  Grandma is making me more fishy soup right now.  I love you.”

   Ms Chisler’s explanation for sending this, in the context of B being due to spend the evening with Ms Gatenby, was that this was the sort of message they send each other.

   c)From B to Ms Chisler at 5:13pm on 25 October 2018:

   “Me too”;

   “We were at the doctors with AA”; and

   “She has a haircut in 45 mins for 45 minus [sic] I’ll do it then.”

   d)From B to Ms Chisler at 6:03pm on 25 October 2018:

   “I’m leaving now.”

5. Ms Chisler said that she saw these messages only after B had arrived at her home.  Ms Chisler says that she was first aware that B had run away when B arrived in her bedroom at about 6pm or 6:30pm.  Ms Chisler cannot remember the precise time. 

6. Ms Chisler’s mother, Ms O, also gave an account about this matter.

7. Shortly before the commencement of the hearing, Ms Gatenby requested of Ms Chisler all communications occurring over the last seven days between herself and B.  Ms Chisler provided to Ms Gatenby a series of exchanges between herself and B, including a number of the exchanges set out above.  However, a number of the text messages (as underlined above) were missing from what was provided by Ms Chisler.  Ms Chisler denied having deleted these messages out of the ones provided to Ms Gatenby.  Ms Chisler suspects that they were deleted by B and notes that this is something that B does.  It should also be noted that in the above messages B had indicated that she would be deleting messages.

8. Ms Chisler says that in response to Ms Gatenby’s request for communications occurring over the last seven days, she took a screenshot of the messages without actually reading them.  Ms Chisler says she did not realise that there were a number of messages missing.

9. It is noteworthy that in the process of taking a screenshot of the messages, it would be necessary for Ms Chisler to identify what text was appearing on each page to ensure that all of the requested messages were included.  Despite this, Ms Chisler denies having read the material closely enough to become aware that there were missing messages.  It is difficult to accept that, where there were only eleven pages of messages produced in this manner, that Ms Chisler did not recognise that there were a number of the most recent messages missing.

10. Ms Chisler accepts that at 5:03pm her phone records a call with B.  However, Ms Chisler said that she did not recall such a call taking place, despite this having occurred only a small number of days before the hearing.  Considering Ms Chisler’s prevarication regarding driving, denial of any memory of the phone call to B, and the messages telling B when she would be home, after B was sending messages to Ms Chisler about running away, it is more probable than not that Ms Chisler was aware of B’s intention to run away before B arrived at Ms Chisler’s house.  Despite that she apparently took no steps to dissuade B from that course. 

11. It is more probable than not that Ms Chisler was complicit in B’s running away from Ms Gatenby shortly prior to the trial commencing. 

12. The parties were then at odds about what occurred after B arrived.  Ms Chisler says that Ms Gatenby arrived and was aggressive and confrontational in her manner.  Ms Gatenby wanted to see B.  Ms Chisler accepts that she swore at Ms Gatenby, saying “Fuck you”.  Ms Gatenby says that she was called a “cunt”.  It does not particularly matter which word was used. 

13. Ms Chisler subsequently got B to come outside and speak with Ms Gatenby, who wanted to speak with B alone.  The parties argued about what was going to happen and B told them to stop fighting.  According to Ms Chisler, Ms Gatenby said that she had told B that she could stay with Ms Chisler and asked B to stop and give her a hug.  Ms Chisler indicated that she would try to talk to B and attempt to get her to go to Ms Gatenby’s home that evening.

1. Adding to the complexity of this incident, at about the time of the running away B had a message exchange with Ms EE, Ms Gatenby’s partner, about buying a coffee machine as a present for Ms Gatenby.  The messages are not congruent with the running away from Ms Gatenby, nor with the expressions of hostility toward Ms Gatenby in the message from B to Ms Chisler at 1:53pm.  The messages were inconsistent with the idea that B was so upset that she had to run away from Ms Gatenby.

2. The incident raises a number of issues.  While it is suggestive of an issue between B and Ms Gatenby, the surrounding circumstances undermine the idea that the issue was of any real significance. The second issue is that Ms Chisler was complicit in B running away from Ms Gatenby.  This was, absent good explanation, poor parenting of B and undermining of her relationship with Ms Gatenby.  The third issue is that B was then exposed directly to strong conflict between the parties.

Other Incidents Raised at the 2018 Hearing

1. Several other incidents were raised by the parties during the 2018 hearing.  These are extracted in summary form below.

   a)25 August 2017 – C was taken to the doctor and wanted to stay with Ms Chisler that evening.  Ms Gatenby eventually agreed to this.  Again the next morning C asked to go to Ms Chisler for the day.  Ms Gatenby said no.  Ms Gatenby denies that C cried.  Ms Gatenby accepts that she may have said to Ms Chisler that Ms Chisler put those ideas into the children’s heads.  Later that day the Ms Gatenby said that C could stay with Ms Chisler that evening.  This evidences a preference by C for Ms Chisler at that time under those circumstances.  It should not be taken as of greater significance than that.

   b)13 November 2017 (being the first day of the trial before Bennett J) – The children were staying with Ms Gatenby that day and she had made arrangements for them to be taken to school.  C was resistant to attending school and the various mechanisms that Ms Gatenby put in place for his care did not operate smoothly.  While C was undoubtedly distressed at this time, it does not seem to be an issue of current significance.

   c)May 2017 to February 2018 – Ms Gatenby was asked whether, on various occasions between May 2017 and 2018, Ms Chisler had requested that the children stay longer with her.  Ms Gatenby accepted that this was the case and accepted that she had declined on each occasion.  Ms Gatenby denied that she had told B to stop asking Ms Chisler to stay later.  Each was critical of the other in relation to this.  Ms Chisler suggested that this showed inflexibility by Ms Gatenby.  Ms Gatenby suggested that this showed an undermining by her position with the children, by Ms Chisler opening the prospect of deviation from the arrangement.

   d)20 February 2018 – B sent a text message to Ms Gatenby about wishing to stay longer at Ms Chisler’s home (where she was staying at the time), missing Ms Chisler and being sad at Ms Gatenby’s home.  Ms Gatenby accepted that B meant what she said in these expressions of emotion.  Ms Gatenby also said that she thought that B felt she had to say these things in order to secure Ms Chisler’s love and affection.  Ms Gatenby assessed that B felt that Ms Chisler’s love was conditional and that she may lose that love if she did not do the right thing by Ms Chisler.  This represents an occasion of preference by B for Ms Chisler and sadness in being with Ms Gatenby.  While Ms Gatenby’s explanation cannot simply be accepted, it should not be thought that this instance is of particular significance in assessing the relationship between B and Ms Gatenby.

   e)May 2018 – C was taken to the hospital by Ms Gatenby.  Ms Chisler also attended the hospital.  C asked if he could go home with Ms Chisler.  Ms Gatenby thought that this was because of something that Ms Chisler said to C.  Ms Chisler denied that she had done so and pointed to the evidence of Ms KK which negatived such a proposition.  Ms KK was not cross-examined.  I accept Ms Chisler’s evidence in particular where it is corroborated by Ms KK.  Despite this evidence Ms Gatenby still thought that Ms Chisler had the opportunity to whisper in C’s ear.  This evidence tends to show C’s preference to be with Ms Chisler, under these circumstances.  It does not tend to establish whether or not C holds the view as to his living arrangement more broadly.

   f)16 May 2018 – C refused to get out of the car while in the care of Ms Gatenby.  Ms Chisler attended and was able to get C out of the car.  Ms Gatenby denied on this occasion that C had indicated that he just wanted to go home with Ms Chisler.

   g)20 May 2018 – B sent a text message to Ms Gatenby saying that she did not like coming to Ms Gatenby’s house, that she hated it there and that she wanted to live with Ms Chisler, among other assertions.  B later apologised to Ms Gatenby for sending the message.  The fact that B said that she hated it at Ms Gatenby’s home does not establish that to be the case.  This is particularly so where it is followed by an apology.  It does however raise the spectre that B may make strong statements that do not in truth reflect what she really thinks about a situation.

   h)20 June 2018 – This was an incident where D was wiping tears from his eyes.  On that occasion D said that he was sad but could not say why.  This is not indicative of any particular view on his part.

Alleged Dissatisfaction with the Result from Bennett J

1. During the 2018 hearing, Ms Gatenby was questioned as to the children’s views in relation to the judgment of Bennett J. Ms Gatenby stated that the children were unhappy with the outcome of proceedings, in that the time between the parties was not equal.  Ms Gatenby stated that her view was based on a conversation or conversations had with the children around the time of the delivery of the judgment.

2. Ms Gatenby’s memory in recalling these conversations was vague, and reliant upon her impression of the children.  It was suggested to Ms Gatenby that she had not included any mention of the children’s views in relation to the outcome in her affidavit, despite these views being a matter of some importance.  Ms Gatenby stated that she had not included any recounting of these as she could not clearly relate what had been said, and so was not willing to put unparticularised conversations in her affidavit material.

3. I do not accept that there was a clear articulation of dissatisfaction from the children as to the result given by Bennett J. 

4. Ms Gatenby accepted that she spoke with B on … 2018 regarding the then upcoming hearing.  Ms Gatenby denied that the conversation was as alleged by Ms Chisler[3] saying that B had said that she wished the “court stuff” was over and that Ms Gatenby had not appealed.  Under cross-examination Ms Chisler amplified her account, adding to her allegations that Ms Gatenby had said to B (as reported by B) that Dr Q “didn’t believe anything (B) said” and “I will just appeal again”.  Ms Chisler added in cross-examination that B had also said that “the decision (of Bennett J) was right in principle”.  Ms Chisler explained that this was left out because the affidavit was rushed.  That is a difficult explanation to accept given the detail reported.  The late addition causes me to doubt Ms Chisler’s account and favour Ms Gatenby’s account over hers.

   [3] Affidavit of Ms Chisler filed 29 October 2018 [17]

Events Following the Close of the 2018 Hearing

1. As noted earlier in this judgment, there was a marked escalation in the nature and frequency of incidents following the close of the 2018 hearing.  Not only did the incidents occur more often but they were of an increasingly serious nature.  It is important to note that the earlier incidents outlined above (i.e. those that occurred prior to the 2018 hearing) pale in comparison to those, particularly involving B, that have occurred since.

2. Ms Gatenby reports that some time in December, although she cannot identify the date, B hurt her when Ms Gatenby took and would not return B’s telephone.  She reports that B pulled Ms Gatenby’s injured left arm, causing Ms Gatenby to scream in pain.  D intervened and was pushed away by B.  Shortly after, B was crying and apologising, and provided Ms Gatenby with Panadol.  Ms Gatenby and B hugged.  B was upset at her own conduct.  Ms Gatenby told her that she could not do that again. 

3. The first Ms Chisler knew of this was on reading it in Ms Gatenby’s affidavit. 

4. Ms Chisler reports that late in 2018 B told her that Ms Gatenby threatened to put wart cream on B’s pillow following pushing and shoving.  Ms Gatenby denied this.

5. Ms Chisler also reports that early in 2018, B told her that Ms Gatenby had pulled her from the lounge and dragged her across the ground.  Ms Gatenby denies this.

6. Ms Chisler says that B has told her that there is a lot of screaming and fighting and that she is scared of Ms Gatenby.

7. Ms Chisler said both that she thought this was sufficient, and not sufficient to mean that B should not go to Ms Gatenby.

8. Given my concerns regarding B’s exaggeration, I do not accept that these descriptions demonstrate risk posed by Ms Gatenby to B.

14 December 2018

1. On 14 December 2018, the children were to be in the care of Ms Gatenby.  However, B left school and caught a tram to Ms Chisler’s home.[4]  Ms Chisler was not at home at the time B arrived.  Ms Chisler says that she informed Ms Gatenby of B’s whereabouts as soon as she found out.[5] 

   [4] Affidavit of Ms Chisler filed 26 April 2019 [19]

   [5] Affidavit of Ms Chisler filed 26 April 2019 [19]

2. In her evidence, Ms O (Ms Chisler’s mother) said that she came home from an appointment to see Ms Gatenby’s car out the front of the house, with Ms Gatenby, C and D sitting inside.[6]  Ms O says that Ms Gatenby asked her where B was, to which she replied that she did not know B’s whereabouts.  Ms O then went inside and found B in her room.  Ms O says that B said “AA is here and I’m not going with her. She’s going to call the police.”[7] During one of the December incidents, Ms Gatenby threatened B that she would report her as missing if she did not tell her where she was.  Ms Gatenby accepted this might have scared B. 

   [6] Affidavit of Ms O filed 26 April 2019 [3]

   [7] Affidavit of Ms O filed 26 April 2019 [4]

3. Ms O says that B’s face was “very red and covered in beads of sweat and her hair was damp.”[8]  It was not made clear what caused this.  It appeared to be implied to be the result of stress on B.  However, it was also unclear what physical exertions had been made by B in going to Ms Chisler’s home.

   [8] Affidavit of Ms O filed 26 April 2019 [4]

4. Ms O says that after some time B went outside to speak with Ms Gatenby.[9]  Ms O says that following a short conversation with Ms Gatenby, B ran back inside the house.  Ms O says that she saw Ms Gatenby attempt to grab B before B could get inside the house.  Once B was inside, Ms O says that Ms Gatenby put her foot in the door and tried to shove the door open, while Ms O was standing behind it.  Ms O says that B was yelling out “Stop hurting Grandma. Are you alright Grandma?”[10]

   [9] Affidavit of Ms O filed 26 April 2019 [6]

   [10] Affidavit of Ms O filed 26 April 2019 [6]

5. Ms O’s evidence of this was disputed by Ms Gatenby.[11]  During cross-examination, Ms Gatenby said that when B came outside to her B did not appear distressed, but seemed happy and had a smirk on her face.  Ms Gatenby suggested that this was because B had gotten her way and was able to stay at Ms Chisler’s home.  However, Ms Gatenby did not require Ms O for cross examination, despite her availability.  

   [11] Affidavit of Ms Gatenby filed 3 May 2019 [106]

6. I accept that there was some sort of struggle that occurred between Ms Gatenby and Ms O at the door of the home.  B’s exposure to this is likely to have undermined her relationship with Ms Gatenby. 

7. Ms Chisler also says that on this day, B told her about other times in which she, B, had unsuccessfully attempted to run away from Ms Gatenby.[12]

   [12] Affidavit of Ms Chisler filed 26 April 2019 [23]

Houseboat Trip – 17 to 22 January 2019

1. During the school holidays Ms Gatenby had organised to take the children on a holiday on a houseboat.  C refused to go on the holiday.[13]  On 20 January, following a FaceTime conversation between C and D, C decided he wanted to join the holiday.  Ms Chisler initially thought it would take six hours to drive to the houseboat.  However, Ms Gatenby sent a screenshot of Google Maps showing that the houseboat was only two and a half hours away from Ms Chisler’s home. 

   [13] Affidavit of Ms Chisler filed 26 April 2019 [39]

2. Ms Chisler agreed to drive C to the houseboat.  However, Ms Gatenby then informed C that it was too late in the evening to come, as she could not drive to the houseboat in the dark.

3. This showed willingness on Ms Chisler’s part to have C spend time with Ms Gatenby, and preparedness to go out of her way to cause it to occur.  C’s willingness to join, and disappointment at not being able to join the holiday indicates this was not an enduring rift with Ms Gatenby. 

School Mediation - 7 February 2019

1. On 7 February 2019, while the children were to be in Ms Gatenby’s care, Ms Gatenby sent Ms Chisler a text message asking if would be okay for B to stay the night with Ms Chisler if B wanted to.[14]  Ms Chisler said that when B arrived she was agitated and made a series of complaints about Ms Gatenby to Ms Chisler, including having a fight, and Ms Gatenby telling B that she would be expelled from school if she ran away again.[15]  Ms Chisler said that B was in a “distressed state” and over the evening “unable to eat, crying hysterically … and had bouts of vomiting and diarrhoea.”[16]

   [14] Affidavit of Ms Chisler filed 26 April 2019 [52]

   [15] Affidavit of Ms Chisler filed 26 April 2019 [52]

   [16] Affidavit of Ms Chisler filed 26 April 2019 [52]

2. Ms Chisler said that B also told her about a meeting that occurred at B’s school that afternoon between B, Ms Gatenby, the Deputy Principal and the School Chaplain.[17]  According to Ms Chisler, this meeting was described by the Deputy Principal as “mediation”.[18]

   [17] Affidavit of Ms Chisler filed 26 April 2019 [52]

   [18] Affidavit of Ms Chisler filed 26 April 2019 [53]

C's Attempt to Run Away – 14 February 2019

1. On 14 February 2019, Ms Chisler said she received a series of text messages from B saying she did not want to be in Ms Gatenby’s care and asking Ms Chisler for help, for example “Help.  Please Help.  Its B.  Heeeeelpppp.”[19]  Ms Chisler said she received similar text messages from C, for example “Mummy I need you to pick me up from AA”.[20]

   [19] Affidavit of Ms Chisler filed 26 April 2019 [56]

   [20] Affidavit of Ms Chisler filed 26 April 2019 [56]

2. Ms Chisler also said that she received a phone call from the Deputy Principal of N School advising her that C had attempted to run away after school.  Ms Chisler said she was told that C had attempted to run to the tram stop, but that Ms Gatenby stopped him.[21]  The school since made an arrangement with Ms Gatenby that she is to pick C up from their classroom.[22]  The issue does not appear to have recurred. 

   [21] Affidavit of Ms Chisler filed 26 April 2019 [56]

   [22] Affidavit of Ms Chisler filed 26 April 2019 [56]

Water Prank – 22 February 2019

1. Ms Chisler said that on 22 February 2019 she received messages from B who was with Ms Gatenby saying that she was “scared”, that it was an “emergency” and she needed “to get out of here”.[23]  She accused Ms Gatenby of squirting water up her nose.  Ms Chisler said she later discovered (it was not described how) that Ms Gatenby and B had had a fight and Ms Gatenby had squirted water in B’s face.  Ms Gatenby denied this and described it as “prank wars” which involved trying to splash each other.  She tried this to get B to go to school but B was not amused.  I accept Ms Gatenby’s description as the more likely.

   [23] Affidavit of Ms Chisler filed 26 April 2019 [60]

The Mulch Incident – 25 February 2019

1. Ms Chisler reported that the children had been locked out of the house to help with mulching, despite complaining they did not want to.  B reported she and C plotted to run away.  Ms Gatenby denied they were locked out.  Ms Chisler conceded there was no issue with causing the children to spread mulch.  B’s response was exaggerated and disproportionate to the circumstances.  Ms Chisler did not record her response to B’s telling her of her running away plans.

The Shopping Centre Incident – 20 March 2019

1. The parties describe an incident on 20 March 2019 when B was due to be picked up by Ms Gatenby.  She was not at the school to be collected and it became apparent that neither Ms Gatenby nor Ms Chisler knew where she had gone to.  Each of the parties, along with Ms Gatenby's partner and Ms Chisler's mother, messaged or tried to call B who eventually responded to explain that she was at a Shopping Centre at Suburb NN.  Whether B was actually at the Shopping Centre is a matter of contention, but in any event B ended up at the home of a school friend, OO, whose parents, it appears, were not at home at the time, although they subsequently returned B to Ms Chisler's home.  This return took place in the context that B was actually due to spend time with Ms Gatenby.

2. Ms Gatenby questioned Ms Chisler as to what consequences followed from this incident for B.  Ms Chisler indicated that she did not use consequences as a form of parenting but that B was caused to do her homework and was dealt with in a more restrictive fashion, including having to attend work with Ms Chisler rather than remaining at the home to do her own thing.  B was unable to go out although she was not informed that she was grounded.  Ms Chisler says that she spoke to B about the behaviour but was of the view that B had already “beaten herself up" about the incident sufficiently so as not to call for further action to be taken. 

The LL Centre Incident - 4 April 2019

1. Subsequent to the Shopping Centre incident B again ran away from school on 4 April 2019 to avoid going home with Ms Gatenby.  The 4 April 2019 running away incident was linked by B to her attendance the previous evening at the LL Centre for Ms Gatenby to appear at the Centre.  A number of complaints were made about the evening by B, although those complaints did not appear to be considered by Ms Chisler as involving anything frightening or involving a level of seriousness sufficient to justify B’s running away from school on this occasion.

2. One issue raised by Ms Chisler was the extent to which arguments had occurred between Ms Gatenby and B and whether or not B was excited about attending the LL Centre.  Ms Chisler's evidence was contradictory about this point.  Her evidence suggested that she understood that the children and Ms Gatenby had argued about attending, but accepted that the children were excited about attending.  This was modified to suggest that the children were actually excited earlier in the day about attending but not at the time of attendance because it was late.  It was further indicated that the arguments had occurred later rather than prior to the attendance.  The variability in answers gives no confidence as to the account ultimately given by B to Ms Chisler about the incident and as to whether or not an argument had in fact occurred about the attendance.  Ms Gatenby says that no such argument occurred but that the children were excited.  She notes that B was excited about the attendance and picked out clothes and jewellery for her to wear, a matter which was corroborated by the evidence of Ms JJ (who was staying at the Gatenby house at the time).  B's excitement about the make-up process (and this being a particular interest of B’s) was also acknowledged by Ms Chisler. 

3. Part of B's complaint to Ms Chisler was that she was tired and wanted to go home.  It appears this was not evident on the night and even if it had been it was not a matter of such significance as to justify B’s running away from school the next day.  B also asserted that she had gone without food, although it appears that the family attended a McDonald's restaurant following the event.  In any event, Ms Chisler conceded that Ms Gatenby would not have permitted the children to have gone without food.

1. While Ms Chisler made a further complaint about the attendance at the Centre relating to the subject matter discussed by Ms Gatenby, which included commentary on …, it is difficult to give weight to that complaint given that while in her care the children were exposed to articles about the same subject matter. 

2. B’s running away should not be considered to have been caused or justified by the attendance at the LL Centre.  At best her actions were an exaggerated response to what confronted her.

3. Ms Chisler gives no indication that she either encouraged B to return to school or to Ms Gatenby. 

School Holidays - 5 April 2019

1. B then refused to spend time with Ms Gatenby during the April school holidays.  Ms Chisler says that each day she would ask B to go to Ms Gatenby’s and tell her that she should.  Ms Chisler says that she made B’s time unexciting as part of an encouragement for B to go to Ms Gatenby’s home. 

24-25 April 2019

1. Ms Gatenby reports that she was assaulted by B on 24 and then 25 April 2019.  The first incident occurred following a disagreement between Ms Gatenby and B about the use of her computer after bed.  Ms Gatenby removed B’s history book and B reacted by grabbing and squeezing and pulling Ms Gatenby’s injured arm.  Ms Gatenby eventually pulled the arm from B’s grip.  The next morning Ms Gatenby warned B that if she did this again Ms Gatenby would call the police.  B was sorry. 

2. 25 April 2019 marked the last occasion of B spending time with Ms Gatenby.  On being dropped at Ms Gatenby’s house, facilitated by Ms Chisler telling her that if B did not get out of the car at Ms Gatenby’s house that Ms Chisler would leave her own car there and walk home, B claimed that she had been threatened by Ms Gatenby, although Ms Chisler’s account varied between whether it was with a stapler or a sticky tape dispenser.  I do not accept that such a threat occurred, particularly given B’s manner of exaggerated reporting. 

3. Again following a disagreement about B’s use of her phone B twisted Ms Gatenby’s injured arm with a Chinese burn.  Ms Gatenby called 000 and explained to the police what had happened.  B became upset. 

4. Ms Gatenby said she called the police out of fear for her safety.  Ms Chisler called in response to messages from B.  Ms Gatenby explained what happened.  Ms Chisler said she would collect B and Ms Gatenby agreed.  The police later attended.  The boys heard some of the interactions with B and on the phone with the police.  B has not spent time with Ms Gatenby since this incident and Ms Gatenby has not sought time until B has received therapeutic help. 

5. It may be anticipated that the calling of the police in relation to B was likely to create barriers between B and Ms Gatenby, and have potential flow on effects upon the boys.  The extent of the potential effects was not the subject of detailed examination.  However, the extent may be in some senses measured by this marking the last time that B and Ms Gatenby spent time together.

Other Incidents Raised at the 2019 Hearing

1. Several other incidents were raised by the parties during the 2019 hearing.  These are extracted in summary form below.

   a)4 November 2018 – Whilst in the care of Ms Gatenby, C sent Ms Chisler an email saying “Mummy can you please pick me up from AA’s?”[24]  During a subsequent FaceTime conversation between C and Ms Chisler, C explained that he had had a fight with Ms Gatenby and that he wanted to go to Ms Chisler’s home.[25]  According to Ms Chisler, C ended the FaceTime conversation suddenly saying “She’s coming.  I’ve got to go.”[26]

   [24] Affidavit of Ms Chisler filed 26 April 2019 [15]

   [25] Affidavit of Ms Chisler filed 26 April 2019 [15]

   [26] Affidavit of Ms Chisler filed 26 April 2019 [15]

   b)5 November 2018 – B sent a recording to Ms Chisler of a conversation between Ms Gatenby and the children.[27]   Ms Chisler states that Ms Gatenby can be heard on the recording as saying “No, B, Mummy thinks that and she is brainwashing you. That is her language and that is absolutely false. And I am trying not to get upset when Mummy’s words come out of your mouth at me.”[28]  Ms Chisler states that C says (in the same conversation) “It’s not like everything Mummy says to us makes us say it. We have our own thoughts you know. I wish you would actually notice that.”[29] These comments made by Ms Gatenby are both undermining of Ms Chisler, and also draw the children into the dispute between the parents.

   [27] Affidavit of Ms Chisler filed 26 April 2019 [16]

   [28] Affidavit of Ms Chisler filed 26 April 2019 [16]

   [29] Affidavit of Ms Chisler filed 26 April 2019 [16]

   c)Ms Gatenby has otherwise complained that C said to her (on an unidentified occasion) that Ms Gatenby was not his mother, that they were not related, and that Ms Gatenby was controlling.  Ms Gatenby asserted that these were things that were said by Ms Chisler.

   d)13 December 2018 – Whilst in the care of Ms Gatenby, B asked to stay the night at Ms Chisler’s home.  Ms Gatenby said that B could not.[30]  Ms Chisler says that she attempted to contact Ms Gatenby so that she could speak to B, but that Ms Gatenby refused.[31]  Ms Chisler then went to Ms Gatenby’s home to see B, but she was not there.[32]

   e)28 December 2018 – While B was in the care of Ms Gatenby, Ms Chisler received a text message and email from B saying that she was scared of Ms Gatenby and that when she was back in the care of Ms Chisler she would not be returning to Ms Gatenby.[33]

   f)29 December 2018 – When the children were in the care of Ms Chisler, Ms Chisler said that B told her that she and Ms Gatenby had had a fight about the noise C and D were making at bedtime.[34]  According to Ms Chisler, B told her that Ms Gatenby was angry because B had not been taking care of her after she returned from hospital.[35]

   g)12 January 2019 – The children were to return to Ms Gatenby’s care the following day.  Ms Chisler says that the children “adamantly expressed their refusal to return” to Ms Gatenby’s care.[36] On 13 January, Ms Chisler says that she took all three children to Ms Gatenby’s home, but B and C refused to get out of the car.[37]  Ms Chisler says she then returned home with B and C.[38]

   h)25 January 2019 – Ms Chisler and C sent text messages to B to inform both B and D that their grandfather had come to visit.  At that time, B and D were in the care of Ms Gatenby.  Ms Chisler said that D started to cry when he found out that he had not seen his grandfather.[39]

   i)30 January 2019 – The children were to be in the care of Ms Gatenby.  However, once again, B left school and went to Ms Chisler’s home.[40] 

   j)31 January 2019 – B was again due to return to Ms Gatenby’s care after school.  However, B instead left school and went to Ms Chisler’s home.[41]  

   k)17 February 2019 – B sent a text message to Ms Gatenby requesting that she be able to spend an additional night at Ms Chisler’s home because she was going to camp, and would therefore be missing time usually spent in Ms Chisler’s care.[42]

   l)20 February 2019 – Ms Chisler said that Ms Gatenby asked her to drop B’s things over for school.  Ms Chisler responded that she could not do this because she was away and so B would need to collect them herself.[43]  B attended Ms Chisler’s house the next morning.  Ms Chisler said that her mother, Ms O, was there and informed her that Ms Gatenby drove away after dropping B off.  Ms Gatenby said that she thought the arrangement was that B would get dressed and walk to school.

   m)14 March 2019 – B was again due to return to Ms Gatenby’s care after school.  However, she left school and went to Ms Chisler’s home.[44]  Ms Gatenby attended Ms Chisler’s home in an attempt to bring B back to her home, although this was unsuccessful.[45]  Ms Chisler says that she was told by her mother that there was a confrontation with Ms Gatenby.

   [30] Affidavit of Ms Chisler filed 26 April 2019 [13]

   [31] Affidavit of Ms Chisler filed 26 April 2019 [17]

   [32] Affidavit of Ms Chisler filed 26 April 2019 [17]

   [33] Affidavit of Ms Chisler filed 26 April 2019 [30]

   [34] Affidavit of Ms Chisler filed 26 April 2019 [30]

   [35] Affidavit of Ms Chisler filed 26 April 2019 [28]-[29]

   [36] Affidavit of Ms Chisler filed 26 April 2019 [32]

   [37] Affidavit of Ms Chisler filed 26 April 2019 [35]

   [38] Affidavit of Ms Chisler filed 26 April 2019 [35]

   [39] Affidavit of Ms Chisler filed 26 April 2019 [45]

   [40] Affidavit of Ms Chisler filed 26 April 2019 [48]

   [41] Affidavit of Ms Chisler filed 26 April 2019 [50]

   [42] Affidavit of Ms Chisler filed 26 April 2019 [57]

   [43] Affidavit of Ms Chisler filed 26 April 2019 [59]

   [44] Affidavit of Ms Chisler filed 26 April 2019 [67]

   [45] Affidavit of Ms Chisler filed 26 April 2019 [67]

2. This constellation of events largely reflects a deterioration of relations between B and Ms Gatenby.  The reasons for the deterioration were not a matter that was successfully addressed by either party.  To the extent that there might be considered to be issues involving C, they were not as significant and appear to have dissipated.

The parties’ attitudes to each other

1. The parties have engaged therapists to assist them in their parental interactions.  Despite this therapeutic involvement, despite the intelligence and level of education of the parties, despite an acceptance on Ms Gatenby’s part that both parties wish to move forward, she accepted that they were still unable to communicate.

2. The clearest example of the poor relationship between the parties involves an exchange that took place while they attended their counsellor, Mr FF, in September 2018.  Mr FF stated that each parent needed to recognise that the other parent was “the single most important other person in the children’s lives”.  Ms Gatenby stated that she turned to Ms Chisler and asked her whether she accepted Mr FF’s statement, to which Ms Chisler replied: “No.  I can barely think of you as being human.  I just want my children to be with me, we are a unit.  I want Ms Gatenby to stop abusing them”.  Ms Chisler emphasised her position to Mr FF that she regarded Ms Gatenby as hurting the children. 

3. Despite this, Ms Chisler stated under cross-examination that she thought that both parents were equally important.  Given the above comments by Ms Chisler I am unable to accept this as a genuine statement of Ms Chisler’s belief.  While there was some dispute as to the exact phrasing to Mr FF, it matters little which account is accurate.  On either case it speaks eloquently to the difficulty between the parties.

4. Further demonstrating Ms Chisler’s views of Ms Gatenby is her comment at the reopened hearing, that when the children are with Ms Gatenby, Ms Chisler does not know if they are dead or alive.  It is difficult to know what to make of this statement other than that it speaks of a profound mistrust and the low views of Ms Gatenby held by Ms Chisler.

5. Perhaps also illustrative of this lack of trust is that Ms Chisler does not ‘fact check’ with Ms Gatenby the complaints made by B about Ms Gatenby.  This is despite a concession made by Ms Chisler that B has lied to her in the past.

6. Ms Gatenby expressed a hope that once litigation is finished things will settle within their family.  Ms Gatenby told Justice Bennett during the 2017 trial, that once litigation was over she thought that all would be fine between the parties.  The finalisation of the trial did not lead to such an improvement and litigation continued through the appeal and retrial process.  There should be no confidence that the relationship between the parties will improve. 

7. Ms Gatenby has also complained that Ms Chisler refers to herself as the children’s “DNA Mummy” and that this is intended to align the children with her.  Ms Gatenby stated that B and C have both used the expression “DNA Mummy” in relation to Ms Chisler.[46]  Ms Chisler denied having ever used the expression “DNA Mummy”, [47] but given my concerns as to her credibility, I place low credence on her denials and accept Ms Gatenby’s account of the children’s use of the term as indicative of its use by Ms Chisler.

   [46] Affidavit of Ms Gatenby filed 14 June 2018 [30], [41]

   [47] Affidavit of Ms Chisler filed 29 June 2018 [183]

8. Ms Chisler did agree that she refers to the children as “my children”.  It is understandable that this may lead to discomfort on the part of Ms Gatenby as to Ms Chisler’s attitude to her being a parent of the children and part of their lives.  Ms Chisler has used such phrasing in communications with Ms Gatenby between the two phases of the final hearing.  However, it may be observed that both parties used the term “my children” during the reopened hearing and this did not appear to have been done as a means of creating discomfort for the other party, but rather it was used naturally and without thought.

9. Further complaint was made that Ms Gatenby had bought tickets to several musicals for both Ms O and B.[48] 

   [48] Affidavit of Ms O filed 5 July 2018 [21]

10. Ms Gatenby responded[49] to this by saying that she had always attempted to facilitate the children’s relationship with their grandmother (Ms O), and that she had purchased tickets to musicals for Ms O and B.  Ms Gatenby said that she had done this as one of her fondest memories as a child is going to musicals with her grandmother, and that she wanted B to have a similar experience.

    [49] Affidavit of Ms Gatenby filed 3 May 2019 [98]

11. It was put to Ms Gatenby that she had purchased these tickets in order to control B’s relationship with Ms O, and that this was an example of her authoritarian and controlling manner.

12. However, no complaint by Ms O was made as to the purchase.  Whilst Ms Gatenby was cross-examined as to the purchase of the tickets being suggestive of controlling behaviour, there was no context available that allowed such an inference to be drawn.  Ms Gatenby contended that the provision of tickets was done in the context of her knowledge that Ms O also enjoyed musicals, had limited funds, and was done to facilitate Ms O’s and B’s relationship.

13. Ms Chisler’s complaints as to Ms Gatenby buying musical tickets are illustrative of the lens through which Ms Chisler perceives Ms Gatenby.

14. Both parties complained that the other parent has placed pressure on the children, and raised the question of influence exerted by the other party on the children. 

15. At various times both of the parties have cried in front of the children.  This has happened in circumstances that must have communicated to the children the emotional investment of the parties in the matters that are the subject of these proceedings. 

16. Ms Gatenby has complained that Ms Chisler cries at handovers and tells the children that she will miss them.  Ms Chisler said that she finds it hard when she does not see the children and she suspects they know this.  Ms Gatenby suggested that this behaviour was intended by Ms Chisler to align the children with her.

17. Ms Chisler responded to this allegation by stating that she has become tearful in front of the children on a small number of occasions on handover days.[50]  Ms Chisler stated:

    These were at times when the children were themselves already crying and very distressed at the prospect of leaving my care to return to the Applicant [Ms Gatenby]. At those times, I have felt powerless to help the children when they self-evidently wanted to stay with me, having specifically requested to do so, and at other times having refused to go to the Applicant’s home.[51]

    [50] Affidavit of Ms Chisler filed 29 June 2018 [183]

    [51] Affidavit of Ms Chisler filed 29 June 2018 [183]

18. However, Ms Chisler’s assertion that the children were crying (as context to her crying) was significantly undermined by the fact that this explanation was not given at the trial of the matter before Justice Bennett.  It was also not an explanation given to the Single Expert.  Ultimately, Ms Chisler accepted that she had never (prior to her 2018 trial affidavit) said that the children had been crying when they went to Ms Gatenby.  It must be supposed that, given the context of the dispute between the parties, if there had been such crying it would have made its way into a previous description.  This presents another reason to be cautious in accepting evidence given by Ms Chisler.

19. When Ms Chisler was questioned as to the impact of crying upon the children, she suggested that it sent three messages to the children.  Firstly, that it is okay to cry.  Secondly, that she is upset.  Thirdly, that she is upset that they are going and that she does not want them to leave.  This description at best lacked insight into the potential emotional pressure placed upon the children.

20. Ms Chisler then went on to accept that crying at handovers gave a terrible message to the children, but that this was a “really horrible situation” and she could not help herself.  Ultimately, Ms Chisler accepted that her emotions would worry the children, and play upon them, but that she did not know to what extent.

21. Ms Gatenby says that B has told her the following:

    a)“Mummy says you’ve done despicable things and that I can read the court papers when I’m older so you may as well just tell me”;

    b)On 16 May 2018: “Mummy hates you right now because you’re making her spend all her money on court staff”; and

    c)On 27 May 2018: “Mummy says the only way she can end the court stuff is if she lets you win.  I don’t know who to believe”.

22. B also told the Single Expert that she wishes Ms Chisler could get some of Ms Chisler’s “stuff” back from Ms Gatenby.  Ms Chisler says that this does not relate to comments that she has made although she accepts that the children bring items from Ms Gatenby’s home that they think belong to Ms Chisler.  It is possible that the behaviour and comments flow from the circumstances of the separation, in particular the restriction on the return of items to Ms Chisler. 

23. Ms Chisler accepted that it was impossible for the children not to sense her dislike of Ms Gatenby, a dislike born of what Ms Chisler sees Ms Gatenby do (although it is not clear what this was).

24. Ms Gatenby stated that when B was staying with Ms Chisler, B would generally communicate with her in a “fun and affectionate” manner via text messages.[52]  However, Ms Gatenby contends that on a number of occasions when in the care of Ms Chisler, B has sent Ms Gatenby “quite hurtful and out of character” text messages, that were “out of the blue with no apparent reason”.  Ms Gatenby stated that B would generally raise these text messages in an apologetic manner.  Ms Gatenby stated that she was concerned Ms Chisler was pressuring B to “align with her”.  Ms Gatenby reports B saying “Well you can’t mess with mummy; you know what she’s like.”

    [52] Affidavit of Ms Gatenby filed 14 June 2018 [33]

The Diblings

1. The issue of the diblings was a central issue in the 2018 trial and remains an issue for determination in relation to parental responsibility.

2. The children were conceived using the same donor.  The donor’s sperm has been used for conception in nine other families.  This means that the children have a number of biological half siblings (referred to in these proceedings as the ‘diblings’).  There is a written agreement with the clinic that provided the sperm that allows the children to contact the donor once they are over 18 years of age.

3. The parties are in dispute as to when, if at all, the children should be introduced to the diblings.  Ms Gatenby seeks orders that would allow her to provide information about the known whereabouts of the diblings, upon request from the children.  Ms Chisler resists such an order and says the children should not be told this information, at least not until they have reached 18 years of age.    Ms Chisler did not consider that there was a risk for the children in not having an introduction. 

4. Ms Gatenby believes that if the child wishes to know their diblings, then the child has the right to know.  Ms Gatenby contends that this is supported by the International Convention on the Rights of the Child.  Specifically, Ms Gatenby thought it was unlikely that introducing C to the diblings would be an additional stressor for him, despite his acknowledged sensitivity to change, as long as it is handled appropriately.

1. As indicated at the start of this judgment, in assessing the claims made against the considerations, only some of the considerations prove to be significant to the resolution of what is in B’s, C’s and D’s best interests.

2. The benefits of meaningful relationship were prominent in the hearing, but can only be assessed in the light of the views, individual characteristics of the children, the nature of their relationships and parental capacity.  The benefits of meaningful relationships are largely the product of these other considerations.  These also need to be considered in the context of the parental conflict, which colours each of the considerations in this case.  These above considerations are highly enmeshed in this hearing.

3. The second of the primary considerations, which relates to protecting the children from harm, was also raised in these proceedings, although to a much more limited extent.  I do not accept that any of the children are at risk of being the subjects of abuse, neglect or family violence at the hands of either of the parents, although they have been exposed to some aspects of family violence by B upon Ms Gatenby.

4. Although Ms Chisler has repeatedly indicated that she wants the children to be safe, and that their safety is compromised by being with Ms Gatenby, no such finding was sought.  The evidence did not lead to a finding of the children’s safety being at risk at all (other than perhaps the potential inherent in incidents of running away).  Ms Chisler’s concerns were poorly founded.  Her holding of the concerns carries more negative implications for the children than any risk of harm with Ms Gatenby, particularly in circumstances where the children are aware (at least generally) of the negative views she holds of Ms Gatenby.

5. The nature of the relationships between the children and the parents and the views of the children are closely connected.  The views of the children and their preferences inform the question of what is the nature of their relationships with each of the parents.

6. It is in this area that the most significant change arises from the hearing in 2018 until the reopening in 2019.

7. At the first part of the hearing, significant emphasis was given to the pursuit of inferences arising from the children’s conduct prior to that hearing.  This included matters touched on above in the judgment, such as the expression of preference for Ms Chisler at times of illness, or requests to spend some additional time with Ms Chisler, or incidents of running away or school refusal.  B’s first incident of running away was part of this.

8. The incidents relied upon by the parties leading up to the 2018 hearing point to lapses by both parents.  However at that stage, conclusions as to parenting would have involved fine distinctions being made as to preference by the children, in the context of a hostile co-parenting relationship.  By that stage it had spilled onto the children, showing itself in dysregulated behaviour by both Ms Gatenby (e.g. her upset that swearing at B would be used against her and her allegation that the children were speaking Ms Chisler’s words) and Ms Chisler (e.g. by her crying in front of the children and her concession that the children are aware of her poor view of Ms Gatenby).  Both of the parties have discussed the proceedings with the children.  That hostile co-parenting relationship was then thought by the Single Expert to be improved. 

9. Whatever those fine distinctions might have been, they are displaced by the evidence led at the reopening.  The evidence led at the reopening is dominant in showing where there are, or are not, problems in the relationships with the parents, along with the significance of those. The reopening also makes plain that the Single Expert’s assessment of improvement in the parental relationship was misplaced.  If anything, the conflict or at best the effects of the conflict between the parties has escalated.

10. Despite C’s refusal to spend time with Ms Gatenby over the 2018-19 summer break, since then he has attended Ms Gatenby on all scheduled occasions.  No significant difficulties or resistance (other than a potential running away from school) were identified in relation to C since this time, even in the context of a different arrangement coming into place for B.

11. Even more strongly for D, the arrangements since the first part of the hearing have functioned smoothly.  The months leading up to the reopening speak strongly to the conclusion that the current arrangements are working well for both C and D, despite all of the upset that surrounds them.

12. There is no strong or clear expression of views on the part of D or C that would lead to a preferencing of one household over the other, nor lead to a conclusion that the relationship with one parent is superior to that with the other.

13. The time leading up the reopening does, however, reveal a clear schism between B and Ms Gatenby, that was not apparent at the November 2018 hearing.  This has been illustrated by the repeated running away by B and the descent of the relationship with Ms Gatenby into violence committed by B.  These speak to the current nature of the relationship, and also to B’s views about who she should be spending time with.  The extent of the problems that currently lie on the surface of the relationship between Ms Gatenby and B may be seen in Ms Gatenby’s calling of the police in relation to B, and Ms Gatenby’s position that B requires therapy before they can spend time together again.  This speaks to a clear disruption in the relationship.

14. However, there is an important caution that lies within these circumstances.  While the circumstances point to problems between B and Ms Gatenby, close analysis of a number of the incidents and of the Single Expert indicates the superficiality of the problems.  That description of superficiality does not suggest that the problems are minor, but rather that they do not relate to deep problems in the underlying relationship.

15. A strong pair of indicators comes from the macaron incident and from the attendance at the LL Centre.  Each of the incidents indicates a disconnect between the reality of the interaction between B and Ms Gatenby and how B both describes that interaction and her attitude to it.  This casts significant doubt upon the balance of B’s other complaints in relation to Ms Gatenby.

16. While B exhibited apparent fear at about the time of the macaron incident, this was exaggerated, or interpreted in an exaggerated manner and this did not reflect the truth of her interactions with Ms Gatenby. 

17. While B alleged that she had gone without food, and that her attendance at the LL Centre was a negative experience, this was not a fair description of her actual experience, but a reinvention on her part.  Despite accepting that Ms Gatenby would not have allowed the children to go without food, Ms Chisler responded in a manner as though such an allegation was true.

18. Another indication comes from the observations and the opinions of the Single Expert as they go to what underlies the reasonably late onset of hostility from B toward Ms Gatenby.  These relate to the need for B to align herself with one of her parents, as a part of her own mechanism for dealing with the dispute between the parties.  That is, B’s negative reaction, at present, to Ms Gatenby, does not reflect the underlying relationship with Ms Gatenby, but is a product of the hostility between the parties.  The hostility between the parties is causal of the problems B is currently facing.

19. That hostility sits in fertile ground for B due to the different parenting styles and capacities of the parents.  One indicia of the difference between the two parents is their approach to consequences for B.  Although Ms Gatenby has softened her position, she has consistently called upon Ms Chisler to set consequences for B’s acting out, particularly in her running away from, or refusals to go to Ms Gatenby.  Ms Chisler represented that she did not deal with such behaviour in terms of consequences, although she took other steps to cause B to behave in accordance with the arrangements in place for her to spend time with Ms Gatenby.

20. What was emphasised by the Single Expert is that each of the parents brings important benefits to the children.  The parents have distinct personalities and approaches to parenting.  They each bring important benefits to the children.  It is not the case that one brings better parenting than the other, or that one is deficient in comparison to the other.  While their differences do not at present manifest in problems for C and D, they provide the context for the difficulties encountered by B, who is not coping with the conflict between the parties.

21. It is in this context that parental responsibility falls to be determined.  At face value, the case does not present as one in which it could be expected that the parties would be able to comply with the obligations placed upon them by s 65DAC should there be an order for equally shared parental responsibility.

22. Their differences in parenting approach, their hostility and profound mistrust of each other, and the polarisation of B, each speak against an order for equally shared parental responsibility.  However, there are strong counter considerations.  Prominent amongst these is that in the face of the above difficulties each seeks such an order, which appears to be a recognition that, despite the mistrust, each regards the other as important, capable and prepared to act in the children’s long term best interests.  This, it appears, is no mere optimism.  They have cooperated in relation to long term issues such as schooling.  These proceedings are remarkably free of a dispute as to schooling.  They have not, however, been able to resolve one aspect of such parental responsibility, being in relation to the diblings issue.  They have asked that the Court resolve this.

23. Heavily reliant upon their joint position that there should be such an order, an order will be made for equally shared parental responsibility.

24. This then calls into play the structured decision making demanded by s 65DAA.

25. Dealing firstly with B, an order for equal time is not, at present in her best interests.  The current schism between B and Ms Gatenby is not deep at present, but it is wide. It does not render an order for equal time either as in B’s best interests or reasonably practicable.

26. While Ms Gatenby suggested that an order for equal time should be made because it would represent in the longer term what is best for B, and that failure to make such an order would consign the relationship between B and Ms Gatenby as less than meaningful, I am unable to adopt either of those conclusions.

27. Firstly, equal time is not a requirement for a meaningful relationship, or for obtaining the benefits of a meaningful relationship

28. Secondly, while there are grounds for considering that there will be a recovery of the relationship between B and Ms Gatenby, the evidence does not allow confidence that there will be a recovery in the short, medium or long term that will support equal time.  In the context of the current schism, a transition to equal time would require confidence in a dramatic change taking place.  The evidence does not provide a basis for such confidence.  If there was greater parental cooperation there could be hope that as the relationship transitions that Ms Chisler and Ms Gatenby could together promote equal time even in the absence of such orders.  There should be no confidence here that such will take place.

29. While there may be confidence that there will shortly be an improvement in the circumstances surrounding time with B, a confidence fuelled by the parties’ agreement to orders at the close of the reopened hearing that B and they would attend therapy under direction from Mr FF, there should be some conservatism as to how that might progress. The conservatism should not lead to an arrangement that fails to support a significant long term relationship between Ms Gatenby and B.  As noted above, the current difficulties should not be considered as deep insofar as they related to underlying relationship.  The overarching history of relationship between B and Ms Gatenby is positive, despite the recent problems in that relationship. That fact, coupled with appropriate therapy, allows reasonable confidence of a transition to regular time, although not to equal time.  It is more readily envisaged that B will make a transition to shorter, but regular times, rather than to return to equal time. Such a conclusion was also accepted by the Single Expert.

30. Ms Gatenby also suggested that a way of dealing with the current impasse, while supporting what she regards as the long term solution of equal time, would be for her to give an undertaking not to enforce the orders if B did not attend in accordance with the orders.  This, she said, would avoid the prospect of being locked into a less than equal time arrangement because of the current circumstances.

31. I expressed concern to Ms Gatenby, who was at that stage self-represented, that such an undertaking would be improper.

32. The essence of a Court order is that it has the force of law.  There will be occasions when the enforcement of an order is frustrated, but that is different from a person being bound not to enforce an order.  Such an undertaking conflicts with the nature of an order.  Ms Gatenby’s suggested approach should not be followed.

33. An order ought to be made that provides for B to have regular time with Ms Gatenby on a fortnightly basis, and, in due course, on school holidays.  Providing for B to spend each second weekend with Ms Gatenby during term time provides reasonably constrained arrangements that are more likely to work for B than the equal time arrangement proposed by Ms Gatenby.  Such arrangement allows Ms Gatenby to have some involvement in relation to B’s schooling as well as recreation time.  Provided that is synchronised with C and D’s time, it will also allow the four of them to enjoy their relationships as a unit.

34. While it is appropriate that there be school holiday time in due course, rushing to half school holiday time in July 2019 is likely to be counter-productive.

35. Different considerations apply for C and D.

36. This is emphasised both by the differences in the descriptions given by the parties of the three children, and of the different interactions described of the children with each of the parents.

37. Ms Chisler described that B could be “dramatic”.   

38. In his September 2018 Report, the Single Expert described B as follows:

    B at age 12 years, presented as having reached puberty. She presented as calmer than previously but continues to present as caught between her parents in issues of loyalty. It was relevant to note that B continues to discuss issues of fairness, and fairness is particularly relevant for her in parenting matters.[56]

    [56] Further Updated Family Report dated 7 September 2018 [35]

39. During the reopened hearing, the Single Expert said that B was acting out the loyalty bind between the parties and that B felt the need to align with one parent.  The Single Expert commented that it is common for children to assess one parent as the “good parent” and the other as the “bad parent” in order to simplify the process of alignment.  Here, B has characterised Ms Chisler as the “good parent” and aligned herself accordingly.

40. C has recently been diagnosed as having mild high functioning autistic spectrum disorder (formerly known as Asperger’s Syndrome).  C has emotional reactions that can be difficult to deal with.  It was described that C can be very challenging and defiant.

41. Ms Gatenby was questioned as to the main issues that cause distress in C.  Ms Gatenby identified the following issues: not being prepared for change; the conflict between the parties (although this was expressed as a cause of anxiety for all the children); and being asked to stop, or prevented from, using technology.

42. In his September 2018 Report, the Single Expert described D as follows:

    D is a 9-year-old boy who presented as calmer and somewhat laid back and not particularly impulsive. He also presented as not particularly caught between his parents.[57]

    [57] Further Updated Family Report dated 7 September 2018 [55]

43. During the reopened hearing, there was little further discussion about D. 

44. While neither of the parties seek or want a result whereby there are different arrangements in place for each of the children, the obligation upon the Court is to make orders in respect of each child that is in that child’s best interests.  Each of these children is different to the others in terms of personality and relationships.

45. In addition to the differences in personalities of the children, there are stark differences in how they are relating to each parent and functioning between the two households.  Unlike for B, it is open to C and D to have access to the benefits of equal time that were identified by the Single Expert.

46. While at times C and D may have expressed a preference for Ms Chisler, it is not such a strong preference, or openly articulated preference, as to carry weight.  For example, a desire to go home to Ms Chisler after being in hospital might reflect the mood on a particular day, or might reflect a particular aspect of the relationship with Ms Chisler that was important in that moment.  To the extent that there may be inferences available as to preference, they should not be treated as a reliable or weight-bearing expression of view.

47. While there have been issues with C connected to Ms Gatenby’s household, in running away events, and in the refusal to go to her in the January school holidays this year, these were not current features by the time of the reopening.  The evidence did not support the idea that there were continuing problems in that household in relation to C and D.

48. Where C’s relationships with both parents are functioning well, as they currently appear to be, what carries weight is the different benefits that they obtain from exposure to their different parents.

49. While both parents opposed there being a long term difference in the arrangements for the three children, the differences between the children and their relationships call for a different approach as being in the best interests of each of the children.  The assertion of dire consequences urged by Ms Chisler does not bear weight without substantive support of that assertion.  Such support was not given by the Single Expert.  It is not established that the different treatment of siblings will or is likely to harm the relationships with each other.

50. Having C and D reap the advantages spoken of by the Single Expert of being exposed as much as possible to each of their parents, and the advantages that the different parenting styles of Ms Chisler and Ms Gatenby bring to C and D call for an equal time regime.

51. Such an outcome is both reasonably practicable for C and D and in their best interests.  It allows each of them to obtain the full benefits of meaningful relationship with each of their parents, in the context of the particular relationships they have with each of their parents and in the context of the different parenting qualities brought by each of the parents.

52. It will also be able to take place under circumstances where there is less exposure to potential conflict between Ms Gatenby and B in C and D’s presence by virtue of B spending more limited time with Ms Gatenby.

53. The Orders of Bennett J incorporated consent terms relating to special occasions.  The parties were reasonably silent about such in these proceedings.  They formed a part of the Orders Sought by Ms Chisler, but not by Ms Gatenby.  However, Ms Gatenby, in her evidence reinforced the importance of Hanukkah with the children.  That importance, and the previous agreement that supports a conclusion as to importance, will lead to a replication of the Bennett J special occasion provisions. 

The Dibling issue and the Convention on the Rights of the Child

1. Ms Gatenby called upon the Convention on the rights of the child as supportive of her position that there should not be a fetter on introduction of the children to their diblings.

1. Section 60B of the Act states that an additional object of Part VII is ‘to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989’.

2. The significance of this reference was dealt with in Ralton & Ralton where the Full Court said;

   Finally, although Australia has ratified the Convention and while it is referred to in s 60B(4) of the Family Law Act, the contents of the Convention are not enshrined as operative principles of law. Ratification itself has no direct legal effect upon domestic law and the Convention is applicable only to the extent that it has been incorporated by specific provisions of the Family Law Act. Accordingly, the Court applies the Family Law Act and not the Convention.[58]

   [58]Ralton & Ralton [2017] FamCAFC 182 [18]

3. That is, the Convention and, by way of example, its reference in Article 8 to the States Parties respecting “the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference” finds its expression in domestic law in Part VII. The Convention may assist in identifying the legislative context for Part VII[59] as part of the interpretive process. In this instance it does no more than reinforce what was the case without the Convention, being that the question of introduction to diblings and its impact on identity is a relevant consideration under s 60CC.

   [59] See Statutory Interpretation in Australia 8^th Ed Pearce and Geddes 96

4. Based on the current state of the evidence there is some indication of interest on the part of at least B and C towards meeting their diblings.  There is limited basis upon which it could be understood how such a meeting would impact on them in the short, medium or long-term at this stage of their development.  It might be supposed that such an introduction could be an emotionally charged event and, depending upon how it did or did not progress may be the source of excitement, joy, disappointment and impact upon how each child sees himself or herself.  Introduction has the potential for long term implications for the children.  It is impossible, at this stage, to gauge whether an introduction at this point, or at some other point is or is not in each of the children’s best interests.  The evidence simply does not allow such a conclusion.

5. Because of the potential long-term implications to the children, the issue of introduction to diblings should be seen to be a major long-term issue as defined at s 4 of the Act as it is an issue “about the care, welfare and development of the child of the long-term nature”.

6. That is, in the normal course this is a matter which requires persons who equally share parental responsibility, as here, to comply with their obligations under s 65 DAC in order to come to a joint decision about the matter.  They do not agree at present as to the introduction, and the absence of agreement precludes it from taking place as a major long-term decision absent the intervention of the Court.

7. That intervention by the Court, as sought by Ms Gatenby, can only take place where it is established that such an introduction, absent the agreement of the parents, is in the children’s best interests.  In the current circumstances of emotional upheaval faced by the parties and the children, and in the absence of persuasive evidence as to why an introduction at this point is in their best interests, the Court should not intervene.

Conclusion

1. Orders will be made for equally shared parental responsibility.  They will not provide for an introduction of the children to their diblings, but will make clear that is a major long term decision and identify the obligations of the parties in respect of it.

2. The orders will provide for B to live primarily with Ms Chisler and spend fortnightly time with Ms Gatenby.  Ideally, should B’s circumstances change, it would be hoped that the parties would adapt this arrangement to the new circumstances.  However, these orders are not made with any confidence or reliance upon such an outcome taking place.

3. Orders will also be made for equal time for D and C.  Although there is some wisdom in continuing the current 5:2 – 2:5 arrangement, in the context of a lack of parental good will, a simpler arrangement is more appropriate.

4. The orders will provide for the sharing of school holiday time, although not for B for the school holidays that will be in place at the time of the delivery of this judgment.  That would be likely to be too much, too soon for her.

5. Despite the problems alleged by Ms Gatenby in relation to the frequency of electronic communication between the children and Ms Chisler, where there has been free communication it would seem to be a radical step with uncertain consequences to bring it to an end.

I certify that the preceding two hundred and sixty four (264) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 8 July 2019.

Associate: 

Date:  8 July 2019

Annexure 1: Orders Sought

1. The Applicant sought:[60]

   [60] Applicant’s Outline of Case filed 22 October 2018.

   1.That the children, B (born … 2006), C and D (both born … 2008) (“the children”), live with each of the parties during school terms on a week-about basis with changeover to occur at the conclusion of school (or 3:30pm if a non-school day) each Friday.

   2.During all school holidays the children live with each of the parents as may be agreed in writing between them and in default of such agreement:

   (a)in the term 1 and term 3 school holidays the children live with the parent who did not have the last weekend of the school term for the first half of the school holidays and with the other parent for the second half of school holidays, with changeover to occur at 3:30pm on the Friday of the first week of the school holidays;

   (b)in the July school term holidays:

   (i)in 2019 and each alternate year thereafter, the children live with the Applicant.

   (ii)in 2020 and each alternate year thereafter, the children live with the Respondent;

   (c)for the purposes of paragraphs (a) and (b), the school holidays shall be deemed to commence from the conclusion of school on the last day of the school term and conclude at 3:30pm on the Friday before the commencement of school term;

   (d)following each school term holidays, the term time regime shall resume on the Friday before the commencement of the new school term as if the school holidays had not occurred, such that from 3:30pm on the Friday before the commencement of the new school term the children will live with the parent they would otherwise have been living with in accordance with the term time regime, as if the school holidays had not occurred;

   (e)in the long summer holidays:

   (i)in 2018/2019 and each alternate year thereafter, the children live with the Respondent from the conclusion of school until 5pm on the mid-point day and with the Applicant from 5pm on the mid-point day until the conclusion of school on the first Friday following the commencement of the school year;         

   (ii)in 2019/2020 and each alternate year thereafter, the children live with the Applicant from the conclusion of school until 5pm on the mid-point day and with the Respondent from 5pm on the mid-point day until the conclusion of school on the first Friday following the commencement of the school year;         

   (iii)for the purposes of calculating the mid-point day, the school holidays be deemed to commence from the conclusion of school on the last day of the school term and conclude at the  commencement of the first day of the new school year;

   (f)following the long summer holidays, the term time arrangements commence from the conclusion of school on the first Friday following the commencement of the school year, with the parent who did not have the last weekend of the long summer holidays to have the first weekend following the commencement of the school term.

   3.That the Applicant be at liberty to advise the children about the existence and identity of their donor siblings (“diblings”) and to arrange for the children to meet their diblings should they wish to do so and that the Applicant advise the Respondent in writing of her intention to do so and invite the Respondent to be present at any initial meetings.

   4.That Order 1 (parental responsibility) and Orders 5 to 15 (inclusive) (communication, special events, travel and miscellaneous) of the Orders made on 17 November 2018 (amended pursuant to Rule 17.02 of the Family Law Rules 2004 on 18 January 2018) (‘the orders’) remain in full force and effect, that otherwise orders be discharged.

2. The Respondent sought:[61]

   [61] Respondent’s Outline of Case filed 22 October 2018.

   1.The children B born … 2006, C born … 2008 and D born … 2008 (collectively, “the children”), live with the Respondent.

   2.The children spend time and communicate with the Applicant as follows:

   (a)During school term periods:

   (i)from after school on Friday to before school the following Monday each alternate weekends; and

   (ii)from after school until 7pm on Wednesday each alternate week;

   (iii) as otherwise agreed between the parties in writing; and

   (b)at all other times, in accordance with the orders made by the Honourable Justice Bennett on 17 November 2017.

   3. All extant applications be and are otherwise hereby dismissed.

   4.        Such further or other orders as this Honourable Court deems fit.