Gatting and Snell and Ors
[2017] FamCA 777
•26 September 2017
FAMILY COURT OF AUSTRALIA
| GATTING & SNELL AND ORS | [2017] FamCA 777 |
| FAMILY LAW – CHILDREN – Where the parties have two children born of the marriage – Where the maternal grandparents have been involved in the proceedings – section 60CC considerations – Where an equal time arrangement would not be in the best interests of the children – Orders made for the parties to have equal shared parental responsibility and for the children to live with the mother – Orders made for the children to spend time with the father each alternate week for four nights. |
| Family Law Act 1975 (Cth) ss, 60B, 60CC, 61DA, 65DAA |
| MRR v GR [2010] HCA 4 |
| APPLICANT: | Mr Gatting |
| 1ST RESPONDENT: | Ms Snell |
| 2ND RESPONDENT: | Mr Snell |
| 3RD RESPONDENT: | Ms A Snell |
| INDEPENDENT CHILDREN'S LAWYER: | Legal Aid ACT |
| FILE NUMBER: | CAC | 1991 | of | 2010 |
| DATE DELIVERED: | 26 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 13-16 February 2017 and 1-4 May 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Wilson |
| SOLICITOR FOR THE APPLICANT: | Neilan Stramandinoli |
| COUNSEL FOR THE 1ST, 2ND AND 3RD RESPONDENTS: | Mr Geddes QC |
| SOLICITOR FOR THE 1ST, 2ND AND 3RD RESPONDENTS: | Phelps Reid |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr Haddock |
| INDEPENDENT CHILDREN'S LAWYER: | Legal Aid ACT |
Orders
All existing parenting orders in relation to the children:
·B born on … 2005 and
·C born on … 2002
("the children") are discharged.
The parents will have equal shared parental responsibility for the children.
The children will live with the mother.
The children will spend time with the father as follows:
(a)during school term time, from the conclusion of school on Thursday until the commencement of school on Monday in each alternate week, provided that:
(i)such periods will commence on the first Thursday of school term if the children were not in the care of the father on the last day of the preceding school holidays and
(ii)such periods will commence on the second Thursday of school term if the children were in the care of the father on the last day of the preceding school holidays
(b)during the April and June-July school holidays, for the first half of the school holiday period, commencing at the conclusion of school on the last day of term and concluding at 3.00 pm on the middle day of the school holiday period
(c)during the September-October school holidays, for the second half of the school holiday period, commencing at 3.00 pm on the middle day of the school holiday period and concluding at the commencement of school on the first day of term
(d) during the December-January school holidays:
(i)for those holiday periods which commence in odd numbered years, for the first week of the holiday period each alternate week thereafter, commencing at 3.00 pm on the last day of school
(ii)for those holiday periods which commence in even numbered years, for the second week of the holiday period and each alternate week thereafter, commencing at 3.00 pm seven days after the last day of school and
(iii)either parent may elect, by giving at least six months' notice in writing to the other parent, to combine two of their one week periods in January for the purpose of taking the children interstate or overseas. Where this occurs, the parent who would otherwise care for the children over the first week (whichever week includes 1 January) and third week of January will instead care for them over the first and second weeks in January, and the parent who would otherwise care for the children over the second and fourth weeks of January will instead care for them over the third and fourth weeks of January.
Notwithstanding any other provision in these Orders, the children will live with the mother on Christmas Day in even numbered years and the father on Christmas Day in odd numbered years, from 3.00 pm on the preceding day until 9.00 am on the subsequent day.
Notwithstanding any other provision in these Orders, the children will live with the mother on Mother's Day and the father on Father's Day from 5.00 pm on the preceding day until 9.00 am on the subsequent day.
Notwithstanding any other provision in these Orders, the parent who would not otherwise care for the children on their birthdays will care for both children from the conclusion of school until 7.00 pm if the birthday falls on a school day, or from 2.00 pm to 7.00 pm if the birthday falls on a day when the children do not attend school.
The parents will effect changeovers at the children's school on school days or otherwise at the home of the mother.
Unless otherwise agreed in writing, the parent who has care of the children will ensure that the children speak with the other parent via telephone or video call between 6.00 pm and 6.30 pm every Wednesday and Saturday during school terms, every second day during school holidays, and on Christmas Day and New Year's Eve.
For the purposes of compliance with Order 9, each parent will obtain and service a mobile phone for the children.
The mother may enrol each of the children in:
(a)up to three sessions of extracurricular activity which occur between Thursday night and Monday morning during the school term and
(b)in addition to the sessions referred to in Order 11(a) above any music concerts which occur between Thursday night and Monday morning during the school term.
Where reasonably practicable, the father will facilitate the children's attendance at the activities nominated by the mother pursuant to Order 11 during periods when the children are in the father's care.
The mother will not enrol the children in any extracurricular activities occurring between Thursday night and Monday morning during school terms, other than those permitted by Order 11.
The mother will not enrol the children in any extracurricular activities occurring during school holiday periods in which the children are in the father's care.
Pursuant to s.68B of the Family Law Act 1975 (Cth) each parent is restrained from attending the children's extracurricular activities during periods in which the children are in the other parent's care except where:
(a) the other parent gives consent in writing or
(b)the activity is a music concert or sporting final which does not fall on Mother's Day or Father's Day.
Pursuant to s.68B of the Family Law Act 1975 (Cth) the maternal grandparents are restrained from attending the children's extracurricular activities during periods in which the children are in the father's care except where:
(a) the father gives his consent in writing or
(b)the activity is a music concert or sporting final which does not fall on Father's Day.
The children's passports will be held by the mother but must be provided by her to the father within 14 days of his requesting them for the purposes of obtaining tickets or visas at least 14 days before departure and the father must return the passports to the mother within 14 days of his return from overseas.
The parents will sign all necessary documents to obtain passports for the children within 14 days of any request by the other parent to do so.
Pursuant to Section 65Y of the Family Law Act 1975 each parent is permitted to travel on vacation with the children outside of the Commonwealth of Australia provided that:
(a)the travel occurs only during periods that the children are in the care of that parent pursuant to these Orders and
(b)the parent travelling with the children provides the other parent with copies of return tickets for the children at least 30 days prior to departure and
(c)the parent travelling with the children provides the other parent with an itinerary and a phone number for the children while they are away at least 14 days prior to departure and
(d)any travel arrangements comply with Department of Foreign Affairs travel advice, including advice regarding travelling with children, at >
Each parent will notify the other within 24 hours of any significant health issues relating to the children, including any medical treatment provided and the name and address of any treating medical practitioner.
Each parent will notify the other as soon as practicable of any medical emergency relating to the children, including any medical treatment provided and the name and address of any treating medical practitioner.
Each parent will notify the other within 24 hours of any psychological assessment or treatment relating to the children, including the name and address of any treating psychological practitioner, provided that neither parent will cause the children to attend upon or be treated by any further counsellors or psychologists without the other parent's written consent.
Each parent will authorise any treating medical, psychological or dental practitioner to speak with the other parent about their treatment of the children and provide to the other parent information in relation to the children.
Each parent will notify the other of his and her current residential address, contact telephone number, and email address within 14 days of any change to these details.
The parents will otherwise communicate only via email other than in the event of an emergency.
The parents will facilitate the children meeting with the Independent Children's Lawyer within seven days of the date of these Orders and the Independent Children's Lawyer will explain these Orders to the children.
That within 14 days of the date of these Orders the parents and maternal grandparents will do all things and sign all documents necessary to enrol themselves and the children in and complete the Assisting Responsible Care of Kids (ARCK) program at Suburb D Canberra.
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 Gatting & Snell and Ors 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 SYDNEY |
FILE NUMBER: CAC 1991 of 2010
| Mr Gatting |
Applicant
And
| Ms Snell |
1st Respondent
And
| Mr Snell |
2nd Respondent
And
| Ms A Snell |
3rd Respondent
And
| Independent Children's Lawyer |
Legal Aid ACT
REASONS FOR JUDGMENT
The proceedings
Mr Gatting and Ms Snell are the parents of two children:
·B born in 2005 (11); and
·C born in 2007 (10).
These proceedings concern parenting orders in relation to the children.
The Second and Third respondents to the proceedings are the maternal grandparents, Mr Snell and Ms A Snell. They were joined as parties on the application of the father, who sought orders to restrain or limit their attendance at the children's school and extracurricular activities during periods while they are in his care.
In his Outline of Case document, the Independent Children's Lawyer ("ICL") summarised the issues in dispute between the parties as follows:
a.Whether there should be orders restraining the Second and Third Respondents from attending the children's extra-curricular activities whilst they are in the father's care;
b.Whether during school term time the children should spend 4 nights per fortnight with the father (the arrangement since at least July 2015) or 3 night (sic) per fortnight;
c.Whether during the Christmas school holiday period the children should spend week-about time with the father or two weeks as separate one week blocks or one conjoined block; and
d.Whether the father should spend time with the children during the
mid-year school holiday period.In his affidavit of 19 December 2016 the father summarised the orders which he sought and his rationale as follows:
(a)The time that I spend with the children during the school term: I seek a continuation of the current arrangements in which I care for [B] and [C] from after school Thursday until the commencement of school Monday every second week. This arrangement has been in place since 27 July 2015 pursuant to Interim Orders made in the Federal Circuit Court on 27 July 2015 ("the July 2015 Orders"). I oppose [Ms Snell's] application that my time with the children be reduced as I am concerned such an arrangement would be detrimental to my relationship with the children.
(b)The time that I spend with the children during school holidays: I seek an increase to the time that [B] and [C] spend in my care over the school holiday periods. The Orders made in October 2011 allow only for the children to spend time with me for one week during the April and October school holiday periods and for two weeks during the summer school holidays. A continuing issue is that the children have had no contact with me over extended periods of time during school holiday periods and this has been made further problematic by [Ms Snell] not facilitating phone calls. This has made it difficult for the children to settle back into my care and impacts on my ability to maintain a relationship with the children. I also seek certainty with respect to the dates of our holiday arrangements as there has also been conflict over this issue.
(c)Orders to restrain [Ms Snell] and her parents from attending school and extra-curricular activities whilst the children are in my care and Orders to restrain [Ms Snell] from arranging activities that occur during periods when the children are in my care without my consent;
(d)Orders providing for regular telephone communication;
(e)Orders relating to special occasions;
(f)Therapeutic intervention."
The ICL sought the following orders:
1.That all previous Orders be discharged.
2.That the parents have equal shared parental responsibility for the children, [B] born … 2005 and [C] born … 2007.
3.The children are to live with the Mother.
School Term
4.That during ACT Gazetted School term periods, the children shall spend time with the Father as agreed between the parties but failing agreement on each alternate Thursday from the conclusion of the school day or 3:00pm; whichever is the earlier, until the commencement of school on the immediately following Monday.
School Holidays
5.During ACT Gazetted School Holiday periods the children shall spend time with the father as agreed between the parties but failing agreement as follows:-
a.For half of all Term 1, Term 2, and Term 3 school holiday periods as agreed between the parents and failing agreement for the first half of all school holidays that fall on an even year and the second half of all school holidays that fall on an odd numbered year; and
b.For half of all Term 4 Christmas school holiday periods to be effected by one week blocks with each parent. Such blocks are to occur as agreed, and failing agreement commencing with the Father in the first week of the school holidays and all years ending in an event number and the second week in all years ending in an odd number.
6.That school holidays are to be ACT Gazetted school holidays. They will be deemed to commence at 3:00pm on the day after school breaks up and end at 3:00pm on the day before the oldest child returns to school. One half the school holiday period is to be calculated by dividing the total number of days the oldest child does not attend school. If this is an uneven number of days, the father is to have the additional day in holidays falling or commencing an even number and not those in other years.
Special Days
7.That notwithstanding anything else in these orders, the children shall spend 5:00pm on the Saturday prior to Father's Day to 5:00pm on the Sunday on Father's Day with the Father.
8.That notwithstanding anything else in these orders, the children shall spend from 5:00pm on the Saturday from before Mother's Day and to 5:00pm on Monday's Day (sic) with the Mother.
9.That notwithstanding anything else in these orders, the children shall spend time with the Father from 5:00pm 24 December to 2:00pm 25 December and all years ending in an even number and from 2:00pm 25 December until 5:00pm 26 December and all years ending in an odd number.
10.That notwithstanding anything else in these orders, the children shall live with the Mother from 5:00pm 24 December until 2:00pm 25 December in all the years ending in an odd number and from 2:00pm 25 December until 5:00pm 26 December and all years ending in an even number.
11.That notwithstanding anything else in these orders, the parent who would not otherwise spend time with the children shall spend time with the children for their birthdays from 4:00pm to 7:00pm when the birthday falls on a school day and from 1:00pm to 7:00pm when the birthday falls on a day that the children do not attend school.
Changeover
12.That notwithstanding anything else other in these orders, changeovers occur during the school term are to occur at the children's school.
13.That notwithstanding anything else in these orders, the changeover for the purposes of these orders are to occur at school holiday time, shall occur at the entrance of the Coles supermarket [E] Mall.
Children's Activities
14.That pursuant to s 114 of the Family Law Act (Cth) each parent is hereby restrained from attending extra-curricular activities or school events during time that the children participate in during other parent's time with the children other than by prior agreement.
15.That pursuant to s 114 of the Family Law Act 1975 (Cth) the second and third respondents are restrained from attending any of the
extra-curricular activities or school events during the father's time with the children unless it was agreed with the father.16.That the father shall facilitate the children's attendance at extra-curricular activities whilst the children are in his care providing that any activities are agreed between the parties prior to the children enrolment or registration for such an activity.
Communication & Other Orders
17.That notwithstanding anything else in these Orders the children shall communicate with the parent whose care they are not otherwise in via telephone on one occasion each day between the hours of 6:00pm and 6:30pm.
18.For the purposes Order 17 above each parent shall obtain a mobile phone for the children and keep that phone available with charge and credit and keep that phone available for the children.
19.That unless otherwise agreed, the parents shall communicate via email with such emails are limited to matters related to the care, welfare and development of the children. For the purposes of this order each parent is to provide the other with an email address within 14 days of the date of this order and shall check that email address once per day.
20.That neither parent is to denigrate the other or their family members either to the children or in the children's presence and shall prevent any other person from doing.
21.That each of the parents is restrained from discussing the contents of these proceedings with the children and in particular the contents of any documents filed or statements made in Court with the children.
22.That the parents shall facilitate the children meeting with the Independent Children's Lawyer within 7 days of these orders and the Court requests that the Independent Children's Lawyer explain these orders to the children.
23.That within 14 days of the date of these Orders the parents do all things and sign all documents necessary to enrol themselves and the children into the Assisting Responsible Care of Kids (ARCK) program at [Suburb D] Canberra. Each parent shall do all things necessary to attend and complete the program and shall facilitate any attendance required by the children.
24.That notwithstanding anything else in these orders, the parents shall keep each other informed of residential addresses and contact telephone numbers on which they may be contacted.
25.That each parent shall advise the other within 24 hours of any medical or dental appointments in which either of the children attend, and the name and the address or any other practitioner who examines or provides a diagnosis in regards to the children. Each parent shall authorise any such practitioner to give all information in relation to the children to the other parent.
26.That each parent will notify the other as soon as practicable of any medical emergency which either of the children requires medical treatment. Should any such emergency arise, each parent shall inform the other of the name and address of any treating medical practitioner to speak to the other parent.
27.That within 7 days of the day of these Orders, each parent shall authorise any primary or secondary school which either the children attends and provide information to the other parent and provide information to the other parent (sic) in relation to the children's academic and extra-curricular activities, including copies of school reports.
During final submissions, both the applicant father and the respondents submitted amended Minute of Orders. The father sought the following orders:
1.All previous parenting Orders are discharged.
2.The parents have equal shared parental responsibility for [B] born … 2005 and [C] born … 2007 ('the children').
3.The children live with their Mother, except as provided in Order 4.
4.The children live with the Father:
a.During [F School] school terms, each alternate Thursday from the conclusion of school until the commencement of school the following Monday morning (or Tuesday morning if the Monday is a public holiday). Where:
i.the Father did not care for the children on the last day of a school holiday period, the Thursday to Monday periods will commence on the first Thursday of the school term;
ii.the Father did care for the children on the last day of the school holiday period, the Thursday to Monday periods will commence on the second Thursday of the school term.
b.During the April and June-July [F School] school holidays, for the first half of the school holiday period, commencing at the conclusion of school on the last day of term and concluding at 3pm on the middle day of the school holiday period.
c.During the September-October [F School] school holidays, for the second half of the school holiday period, commencing at 3pm on the middle day of the school holiday period and concluding at the commencement of school on the first day of term.
d.During the December-January [F School] school holidays:
i.For those holiday periods which commence in odd numbered years, for the first week of the holiday period and each alternate week thereafter, commencing at 3pm on the last day of school;
ii.For those holiday periods which commence in even numbered years, for the second week of the holiday period and each alternate week thereafter, commencing at 3pm seven days after the last day of school; and
iii.Either parent may elect, by giving at least 6 months notice in writing to the other parent, to combine two of their one week periods in January for the purpose of taking the children interstate or overseas. Where this occurs, the parent who would otherwise care for the children over the first week (whichever week includes 1 January) and third week of January will instead care for them over the first and second weeks in January, and the parent who would otherwise care for the children over the second and fourth weeks of January will instead care for them over the third and fourth weeks of January.
5.Notwithstanding anything else in these Orders, the children live with the Mother on Christmas Day in even numbered years and the Father on Christmas Day in odd numbered years, from 3pm the day before until 9am the day after.
6.Notwithstanding anything else in these Orders, the children live with the Mother on Mother's Day and the Father on Father's Day, from 3pm the day before until 9am the day after.
7.Notwithstanding anything else in these Orders, the children live with the Mother on her birthday and the Father on his birthday, from 3pm the day before until 9am the day after.
8.Notwithstanding anything else in these Orders, the parent who would not otherwise care for the children on their birthdays care for both children from the conclusion of school until 7pm if the birthday falls on a school day, or from 2pm to 7pm if the birthday falls on a day the children do not attend school.
9.Handovers of the children occurring on school days are to occur at the children's school. All other handovers are to occur at the [Suburb G] Shopping Centre unless otherwise agreed.
10.Unless otherwise agreed in writing, the parent who has care of the children ensure that the children speak with the other parent via telephone or video call between 6pm and 6:30pm every Wednesday and Saturday during school terms, every second day during school holidays, and on Christmas Day and New Year's Eve.
11.For the purposes of Order 10 each parent obtain a mobile phone for the children and keep that phone available with charge and credit for the children.
12.The Mother may enrol each of the children in:
a.up to three sessions of extra-curricular activity that occur between Thursday night and Monday morning during the school term; and
b.in addition to the sessions referred to in Order 12(a) above any music concerts that occur between Thursday night and Monday morning during the school term.
13.Where reasonably practicable, the Father facilitate the children's attendance at the activities nominated by the Mother under Order 12 during periods the children are in the Father's care.
14.The mother not enrol the children in any extra-curricular activities other than those permitted by Order 12 occurring between Thursday night and Monday morning during school terms.
15.The Mother not enrol the children in any extra-curricular activities occurring during school holiday period in which the children are in the Father's care.
16.Pursuant to s.68B of the Family Law Act 1975 (Cth) each parent is restrained from attending the children's extra-curricular activities during periods in which the children are in the other parent's care except where:
a. The other parent gives their consent in writing; or
b.The activity is a music concert or sporting final and it is not Mother's Day or Father's Day; and
c. The parents comply with Order 21 of these Orders.
17.Pursuant to s.68B of the Family Law Act 1975 (Cth) the Maternal Grandparents are restrained from attending the children's extra-curricular activities during periods in which the children are in the Father's care except where:
a.The Father gives his consent in writing; or
b.The activity is a music concert or sporting final and it is not Father's Day; and
c.The Maternal Grandparents comply with Order 21 of these Orders.
18.Order 17 does not prevent the Maternal Grandparents from attending their other grandchildren's activities if they are on at the same time at the same location, provided that they stay as far away as is practicable from the children's activities and comply with Order 21 if they come into contact with the Father or [Ms H].
19.Pursuant to s.68B of the Family Law Act 1975 (Cth) the parents are restrained from being in or around the children's classrooms or school entrance when the other parent is dropping them off or collecting them from school.
20.Pursuant to s.68B of the Family Law Act 1975 (Cth) the Maternal Grandparents are restrained from being in or around the children's classrooms or school entrance when the Father is dropping them off or collecting them from school except:
a.to the extent necessary for the Maternal Grandparents to drop off or collect their other grandchildren or grandchild from school; and
b.the Maternal Grandparents comply with Order 21 of these orders if they come into contact with the Father or [Ms H].
21.The Mother, Father and Maternal Grandparents, when in the presence of each other, or [Ms H], and the children are to:
a.Say "hello" and "goodbye" politely to each other, and any other person accompanying the parties or children (including [Ms H]), and encourage the children to do likewise; and
b.Engage with each other, and any other person accompanying the other parties or children, in a polite and cordial manner; and
c.Not interfere with or undermine the other parent's parenting arrangements.
22.The children's passports will be held by the Mother, but must be provided to the Father within 14 days of him requesting them for the purposes of obtaining tickets or visas and at least 14 days before departure. The Father must return the passports to the Mother within 14 days of his return from overseas.
23.The parents shall sign all necessary documents to obtain passports for the children within 14 days of any request by the other parent to do so.
24.Pursuant to Section 65Y of the Family Law Act 1975 each parent is permitted to travel on vacation with the children outside the Commonwealth of Australia provided that:
a.The travel occurs only during periods that the children are in the care of that parent; and
b.The parent travelling with the children provides the other parent with copies of return tickets for the children at least 30 days prior to departure; and
c.The parent travelling with the children provides the other parent with an itinerary and a phone number for the children while they are away at least 14 days prior to departure; and
d.Any travel arrangements comply with Department of Foreign Affairs travel advice, including advice regarding travelling with children, at parent shall notify the other within 24 hours of any significant health issues relating to the children, including any medical treatment provided and the name and address of any treating medical practitioner.
26.Each parent shall notify the other as soon as practicable of any medical emergency relating to the children, including any medical treatment provided and the name and address of any treating medical practitioner.
27.Each parent shall notify the other within 24 hours of any psychological assessment or treatment relating to the children, including the name and address of any treating psychological practitioner. Neither party shall cause the children to attend upon or be treated by any further counsellors or psychologists without the other parent's written consent.
28.Each parent shall authorise any treating medical, psychological or dental practitioner to speak with the other parent about their treatment of the children and provide to the other parent information in relation to the children.
29.Each parent shall notify the other of their current residential address, contact telephone number, and email address within 14 days of any change to these details.
30.The parents shall otherwise communicate only via email unless there is an emergency.
31.When the children are to go to the Father during school term or for the last week of the school holiday period, the Mother shall ensure that each child takes with him or her their school uniform.
32.The Mother, Maternal Grandparents, and the Father shall not denigrate the others' parenting or disparage one another, or the Father's partner, or the Mother's partner.
33.The Mother, Maternal Grandparents, and the Father shall not discuss the Court process, or these Orders, with the children.
34.The parents shall facilitate the children meeting with the Independent Children's Lawyer within 7 days of these orders and the Independent Children's Lawyers will explain these orders to the children.
35.That within 14 days of the date of these Orders the parents and Maternal Grandparents do all things and sign all documents necessary to enrol themselves and the children into the Assisting Responsible Care of Kids (ARCK) program at [Suburb D] Canberra. Each party shall do all things necessary to attend and complete the program and shall facilitate any attendance required by the children.
36.The parents may very these arrangements only by agreement in writing.
37.The Respondents' pay the Father's costs of and incidental to this application."
The respondents sought the following orders:
1.That all previous Orders be discharged.
2.That the parents have equal shared parental responsibility for [B] born … 2005 and [C] born … 2007 ('the children')
3.That the children are to live with the Mother and spend time with the Father as follows:
a.During the [F School] school terms each alternate Friday from the conclusion of school until the commencement of school the following Monday morning (or 4pm on Monday if the Monday is a public holiday).
b.During the April [F School] school holidays for the first week of the school holiday period, commencing at 2pm on the first Saturday and concluding at 2pm seven days later.
c.During the September-October [F School] school holidays for the second week of the school holiday period, commencing at 2pm on the middle Saturday of the school holiday period and concluding at 2pm seven days later.
d.During the December-January [F School] school holidays for two block periods of seven nights as follows:
i. In odd numbered years commencing 2017/2018:
(1)Week 1: From 2pm 25 December until 1 January at 2pm being a period of 7 nights
(2)Week 2: From 2pm on the 4th Saturday in January to the first Saturday at 2pm in February being a period of 7 nights.
ii. In even numbered years commencing 2018/2019:
(1)Week 1: From 2pm the day after term 4 finishes for a period of seven nights returning at 2pm; and
(2)Week 2: From 2pm on the 3rd Saturday in January to the 4th Saturday in January at 2pm being a period of 7 nights.
4.That in respect to Order 3:
a.The children's time with the Father in accordance with 3 a. is suspended during the April, September and Christmas school holiday periods; and
b.The children's time with the Father in accordance with Order 3 a. continues notionally as if the suspension in Order 4a. did not occur.
5.That in respect of orders 3 b., c. and d. that in the event that the Mother or the Father and their respective parents are not able to care for the children, the Mother or Father will give the other parent the first option to care for the children.
6.That for Christmas Day the children spend time with the Mother and the Father as follows:
a.In odd numbered years with the Mother from 5pm 24 December until 2pm 25 December and with the father from 2pm 25 December until 5pm 26 December; and
b.In even numbered years with the Mother from 2pm 25 December until 5pm 26 December; and with the Father from 5pm 24 December until 2pm 25 December.
7.That notwithstanding anything else in these Orders, the children will live with the Mother on Mother's Day and the Father on Father's Day, from 5pm the day before until 5pm on the day after.
8.That in the event that the ACT school's cup ([sports]) occurs during the time the children are spending with the Father pursuant to these Orders the Father will facilitate the children's attendance at the ACT school's cup ([sports]) should the children wish to participate and the Mother and Maternal Grandparents are permitted to attend.
9.That notwithstanding anything else in the orders, the parent who would not otherwise care for the children on their birthdays will care for both children from the conclusion of school until 5.30pm if the birthday falls on a school day, or from 12pm to 3pm if the birthday falls on a day the children do not attend school.
10.That changeovers occur at the children's school on school days and at all other times at the Mother's home (presently … [Suburb G] in the ACT) or as otherwise agreed.
11.That the children have telephone time with the parent that they are not otherwise spending time in accordance with these Orders in accordance with the children's wishes and the parent that the children are not otherwise spending time with is free to call the children whenever they choose.
12.That for the purpose of Order 11 the parents will provide a mobile phone for the children and will ensure it has available credit and both parents will ensure that the mobile phone remains in the children's possession at all times and is sufficiently charged.
13.That the Mother and the Father be permitted to enrol the children in any extra-curricular activities that occur during the time the children are in their respective care.
14.That the Mother and Father will facilitate the children's participation in special school events that children are expected to attend including but not limited to school music concerts, Eisteddfods and assemblies that occur during school term period periods that the children are in their care.
15.That the parents will do all thing necessary when in the presence of each other and the children, and do all things possible to ensure that their respective partners and families:
a.Say "hello" and "goodbye" politely to each other, and any other person accompanying the other parent or children, and encourage the children to do likewise if necessary; and
b.Engage with each other, and any other person accompanying the other parent or children, in a polite and cordial manner if necessary; and
c.Not interfere with or undermine the other parent's parenting arrangements.
16.That the children's passports be held by the Mother, but must be provided to the Father within 14 days of departure. The Father must return the passports to the Mother within 14 days of his return from overseas.
17.That the parents sign all necessary documents to obtain passports for the children and jointly meet the costs thereof within 14 days of any request by the other parent to do so.
18.That pursuant to Section 65Y of the Family Law Act 1975 each parent is permitted to travel on vacation with the children outside of the Commonwealth of Australia provided that:
a.The travel occurs only during periods that the children are in the care of that parent; and
b.The parent travelling with the children provides the other parent with copies of return tickets for the children at least 30 days prior to departure; and
c.The parent travelling with the children provides the other parent with an itinerary and a phone number for the children while they are away at least 14 days prior to departure; and
d.Any travel arrangements comply with Department of Foreign Affairs travel advice, including advice regarding travelling with children, at the parents be restrained from physically disciplining the children and do all things necessary to prevent any other person from doing so.
20.That each parent notify the other within 24 hours of any significant health issues relating to the children, including any medical treatment provided and the name and address of any treating medical practitioner.
21.That each parent notify the other as soon as practicable of any medical emergency relating to the children, including any medical treatment provided and the name and address of any treating medical practitioner.
22.That each parent notify the other within 24 hours of any psychological assessment or treatment relating to the children, including the name and address of any treating psychological practitioner.
23.That each parent will authorise any treating medical, psychological or dental practitioner to speak with the other parent about their treatment of the children and provide to the other parent information in relation to the children.
24.That each parent will notify the other of their current residential address, contact telephone number, and email address within 14 days of any change to these details.
25.That the parents will communicate via email unless there is an emergency.
26.That the parties be restrained from denigrating the others' parenting or disparage one another, or the Father's partner, or the Mother's partner or the grandparents.
27.That within 14 days of the date of these Orders the parents do all things and sign all documents necessary to enrol themselves and the children into the Assisting Responsible Care of the Kids (ARCK) program at [Suburb D] Canberra. Each parent do all things necessary to attend and complete the program and shall facilitate any attendance required by the children.
28.That the Second Respondent and the Third Respondent be removed as parties to the proceedings.
29.That the Father pay the First, Second and Third Respondent's costs associated wit
The parties thus agreed that there should be orders in accordance with paragraphs 1, 2, 24, 25, 26, 28, 29, 31, 32 and 35 of the Minute submitted by the father. For reasons which are set out below, I will not make orders in accordance with paragraphs 31 and 32 of the Minute submitted by the father. Accordingly, the outstanding issues may be summarised as follows:
1.should the children spend three or four nights per fortnight with the father during school term time?
2.should the children spend half of all school holidays or a maximum of four weeks per annum during those periods with the father?
3.should there be an order for telephone contact between the children and the non-caring parent at a fixed time or should such communication occur entirely at the election of the children?
4.should handovers which do not take place at the children's school occur at Suburb G shopping centre or the home of the mother?
5.what time should the children spend with the father and the mother on Father's Day and Mother's Day?
6.should the mother be restrained from enrolling the children in more than three extracurricular activities during the periods which they spend in the care of the father?
7.should the mother be restrained from enrolling the children in any extracurricular activities during school holiday periods which they spend in the care of the father?
8.should each parent be restrained from attending the children's extracurricular activities while they are in the care of the other parent, with the exception of music concerts or sporting finals or with the consent of the caring parent?
9.should there be a restraint upon attendance by the maternal grandparents at the children's extracurricular activities while they are in the care of the father, with the exception of music concerts or sporting finals or with his consent?
10.should there be a restraint upon attendance by the non-caring parent at the children's school while they are being dropped off or collected by the other parent?
11.should there be a restraint upon attendance at the children's school by the maternal grandparents when the father is dropping off or collecting the children, with the exception that they may drop off or collect their other grandchildren?
Background
The maternal grandfather and maternal grandmother are aged 66 and 64 respectively and they each engage in part-time employment. They have four grandchildren, the eldest of whom are B and C.
The father and the mother are aged 43 and 42 respectively. They commenced cohabitation in January 2003 and married in the same year. They separated on 1 May 2010 and were divorced by an order made on 23 August 2011.
On 10 January 2016 the father married Ms H, with whom he commenced to cohabit in 2013. Ms H is a allied-health professional, who has no children from previous relationships. The mother deposed that she has re-partnered recently, with an unidentified person.
On 24 October 2011 the Federal Circuit Court made orders which provided for the children to live with the mother and spend increasing amounts of time with the father, culminating in each alternate weekend from 5.30 pm on Friday until 4.00 pm on Sunday and every Wednesday night. These orders also made provision for school holiday time with the father for one week in each of the April and October vacations and two weeks during the Christmas period.
Simultaneously with these orders, the mother and father entered into orders for settlement of property and a binding child support agreement. The father deposed as follows in relation to this agreement and the overall financial settlement between the parties:
I do not pay child support because [Ms Snell] and I entered into a binding child support agreement on 24 October 2011 as part of our overall financial settlement which included the final property orders entered into at the same time. [Ms Snell] proposed that we enter into the binding child support agreement in return for her receiving a greater percentage of our marital assets. This was [Ms Snell]'s suggestion, not mine and enabled her to remain with the children in our [Suburb G] property (which was our only significant asset at the time).
This financial arrangement apparently created resentment of the father in the maternal grandparents and has resulted in the mother making threats to misrepresent the situation to staff of the children's school. In an email to the father dated 13 January 2012 the mother wrote:
In regard to the school information sessions, as I am the financial and organisational provider of the children's education and extracurricular activities at [J] School I will be attending the information sessions with the children. The school has asked for "a parent" to attend and they are well aware of the fact that you do not contribute to the children's education so it is not appropriate for you to attend. However if you choose to attend then [C] and [B] will remain with me for the session and I will not be engaging with you in any way. Furthermore if you choose to attend I will take the opportunity at that information session to explain to [B's] teacher that I am solely responsible for the children's day-to-day wellbeing including their education and that you are not contributing financially to the children on any level including their education. [C's] teacher is already aware.
In 2011, following the financial settlement the maternal grandparents wrote a letter to the father, which included the following statements:
●Now that the property and child care arrangements have been finalized we thought we would document our thoughts to you to ensure you understand how appalled we are with your lack of genuine concern for the children and your ongoing bullying behaviour.
●Some people have assumed that [Ms Snell] was allocated the house in the settlement given you are not paying anything for the children and are horrified when we tell them the reality. We will continue to make sure that everyone we come in contact with knows the terms of the settlement for the property and the children that you ultimately agreed upon. In addition that you were prepared to spend the equivalent of nearly 6 years private school education fees for one of the children for legal fees to fight against providing for them.
●Against that background we have nothing but contempt for the fact that you negotiated the children's support for your own financial gain.
●Going forward we do not intend to communicate with you anymore than will be required for the children's express benefit. We are pleased for [Ms Snell] that you are no longer in her life, her soul or any of our thinking as we all move on to an improved life without you being a part of it.
Simultaneously the maternal grandmother took it upon herself to write to the father's aunt, a person whom she had never met, in terms which included the following statements:
●As you are no doubt aware [Mr Gatting] and [Ms Snell] have now settled their financial and child support arrangements. I have enclosed the legal documents which will provide you with the true picture. We have found [Mr Gatting] to be an habitual liar so with this information you can test the honesty of the situation. To summarise for you [Ms Snell] did a deal with him which came after a great deal of abuse and threats from him especially in regard to forcing the children to spend additional nights with him just to decrease his child support …
●I am sure he will tell you he can't afford to pay you back so if you want your money back for your retirement you will need to be forceful. From what [Ms Snell] has told me you and your late husband worked hard and it would be a shame if your nephew was able to cheat you of your money as he has done for his own children …"
In his oral evidence the maternal grandfather said words to the effect:
It is not true that my wife and I are angry and resentful about the financial settlement.
He agreed that:
The 2011 letter is in strong terms. It displays raw emotions at that time, we regret sending it. I have had many conversations with [the father] since then, at times quite cordial.
In her oral evidence the maternal grandmother said words to the effect:
It is not true that I retain a lot of anger and resentment about the financial settlement. It was very raw at the time but now I don't feel that way.
Whether or not the maternal grandparents have resiled from the strong negative views which they expressed in their letters to the father and his aunt, their actions undoubtedly have had an adverse impact on the relations between the two families. It was well evident that the father perceives that his relationship with the maternal grandparents continues to hold elements of conflict and tension.
On 26 October 2013 an incident occurred at a changeover, which Ms H attended without the father. She took C to a birthday party, at which the mother and maternal grandparents were present, and B remained in her care. He had hit his head on a piece of playground equipment during the afternoon and, according to Ms H, when she returned to collect C the mother and her parents attempted to retain B.
The version of events given by the mother and the maternal grandparents was to the effect that Ms H said "I am legally entitled to take [[B], him or the children]". Ms H denied that she uttered any words to that effect.
Ms H alleged that the maternal grandfather has behaved aggressively toward her at changeovers on three occasions. She contended that he stamped his foot and shook his fist at her; made a motion of throwing a soccer ball at her face and pushed her out of his way.
The maternal grandfather denied these allegations in very strong terms and pointed out that he was suffering from a serious cardiac condition at the time of these alleged actions. He maintained that that state of his health would have prevented him from engaging in such behaviour. In his oral evidence he said:
It is just not true that I am lying, that is preposterous, it is outrageous to suggest to the children that their grandfather is someone who physically abuses women.
I accept this evidence, which the paternal grandfather gave in a sincere and heartfelt tone. I do not suggest that Ms H deliberately gave untrue evidence. In my view, those conflicting statements more probably than not are representative of the fraught state of relations which has existed between the two families for some time.
In April 2015 B underwent surgery on an urgent basis, which prompted a dispute between the father and the mother as to who would take him home from the hospital. Initially the father insisted that B leave the hospital with him, because the child would be in his care on the day of the surgery pursuant to the existing parenting orders. Ultimately, however, the father relented and allowed B to leave the hospital with the mother after he observed the extent of his post-surgical pain and distress. The father's position would have resulted in B leaving the hospital with him and then being subjected to a transfer to the care of the mother at 2.00 pm on the following day.
The mother invited the father and his parents, who were due to depart from Canberra in a short time, to visit B at her home following his surgery. They declined to accept this offer, because the invitation did not include Ms H.
On 27 May 2015 the Federal Circuit Court made interim orders, which provided that the children spend time with the father from Thursday afternoon until Monday morning in each alternate week. The mother filed a Notice of Appeal against these orders and an application for a stay, both of which she discontinued on 26 August 2015.
In June 2015 the mother unilaterally suspended the children's time with the father. This time was recommenced after an interim hearing in the Federal Circuit Court on 27 July 2015.
On 11 September 2015 the Federal Circuit Court made interim orders, which restrained each parent from attending the children's sporting events while they are in the care of the other parent. On 20 November 2015 the maternal grandparents refused to provide an undertaking that they would refrain from attending the children's sporting activities while they were in the care of the father.
On 21 November 2015 the father did not take C to her sports game. His rationale was that the mother and/or the paternal grandparents would be present and a notation to the orders of 27 July 2015 indicated that he would not permit the children to attend in these circumstances. C became upset and tried to take herself to the match.
On 24 May 2016 the maternal grandparents agreed to provide an undertaking in relation to these attendances, as sought by the father, pending a trial fixed for November 2016. These trial dates were vacated when the proceedings were transferred to the Family Court of Australia and new hearing dates were allocated on 13 to 16 February 2017.
The trial was part-heard at the end of these dates, due to commendable efforts on the part of the legal representatives to resolve the issues between the parties. These efforts proved to be fruitless and the proceedings were listed for finalisation in the week commencing 1 May 2017. At the end of that week I reserved judgment. The father sought an order to restrain the maternal grandparents from attending at the children's activities while they were in his care, pending delivery of judgment.
The maternal grandparents refused to provide this undertaking and I made the following orders, on the proposal of the father and the ICL:
THE COURT NOTED:
A. The undertaking of the father made in accordance with paragraph 2 of a document headed "Undertakings" dated 2 May 2017, filed herein and set out hereunder:
"2.The father undertakes to the Court that he will facilitate the children attending all of their sporting and extracurricular activities that occur when the children are in his care."
AND THE COURT ORDERED THAT:
1. Pending delivery of judgment, the 2nd and 3rd respondents will not attend the children's sporting and extra-curricular activities when they are in the father's care except as follows:
a.if the father gives his consent
b.if the activity is a special event such as a sporting final
c.musical performances, school assemblies and presentations
d.any activities or school events for the purposes of observing or engaging with their other grandchildren."
2. Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
As noted, this order was made in accordance with a proposal of the ICL.
In April 2017 a most regrettable incident occurred at Brisbane airport, while the children were in the care of the father during a school holiday period. By her own admission, Ms H became "very angry that [Ms Snell] is not complying with the orders regarding phone calls, and that she is not genuinely consulting with [Mr Gatting] regarding the children's activities".
Ms H admitted that she referred to the mother as "a bitch", but denied that she called her a "fucking bitch", while addressing the children. Her account was to the effect that she said to the children "it is not okay how you treat your dad, your mum isn't doing the right thing by you and your relationship with your dad". She conceded that she said also "you guys get that your mum's behaviour towards your dad isn't okay, right?" and "that's what happened to [Ms K]". The reference to "Ms K" was to a previous partner of the father. Ms H then absented herself from the children and the father for a couple of days and then re-joined them at a resort.
B sent a text message to the mother contemporaneously with this incident, which read as follows:
"[Ms H] just said you were a f-ing bitch and the reason why [Ms K] left shouting it in the airport.
[B]
Don't reply on this topic".
The evidence and witnesses
The applicant father relied on affidavits sworn or affirmed by himself, Ms H and his former partner Ms K. The father and Ms H also prepared statements (Exhibit 8), adopted as correct on their oath, in which they addressed the incident at Brisbane airport in April 2017 and by which the father responded to the affidavit of the mother of 27 April 2017.
The respondent mother relied upon affidavits sworn by herself, the maternal grandfather, the maternal grandmother, her brother Mr L Snell and a psychologist Dr M. The maternal grandparents prepared statements, adopted as correct on their oath, in relation to an event at the children's school on 17 February 2017 (Exhibit 9). The mother and the maternal grandparents and the father and Ms H all attended this event, which was B's inauguration as a house captain.
I had the benefit of a single expert report by a psychologist, Dr N, dated 25 November 2015. Regrettably, Dr N saw the parents, the maternal grandparents, Ms H and the children in November 2015 and had no opportunity to update the contents of her report prior the trial.
In his Outline of Case document, the ICL commented on "the breadth and length of the material filed by each of the parties". He opined that "given the scope of the dispute there is a real question as to the relevance of significant parts of the material filed by each of the parties".
I am inclined to agree with these observations of the ICL. The father's primary affidavit consisted of 138 paragraphs and annexures with a thickness of approximately one centimetre. This affidavit canvassed events which allegedly have occurred throughout the six year period since the separation of the parents. The mother's primary affidavit ran to 326 paragraphs and 369 pages of annexures, and also canvassed events which occurred over the separation period of approximately six years. Similarly, the affidavits of the maternal grandparents addressed alleged incidents of some antiquity.
Perhaps unsurprisingly, this vast amount of material did not feature prominently in the final submissions put on behalf of the applicant and the respondents. In practical terms, it is simply impossible that I address and make findings in relation to each disputed issue of fact. I propose in these reasons to focus on the issues in dispute between the parties and the evidence and submissions which are relevant to those matters.
Approach to these proceedings
In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in s 60B(1) and the principles underlying those objects, as set out in s 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1)). If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in s 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR [2010] HCA 4 the High Court of Australia said:
8. Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
9.Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”
…
13.Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
…
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in
s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.…
Section 60CC considerations
Section 60CC(2)
The positions adopted by the mother and father must mean that they each perceive that there is a benefit to the children in having a meaningful relationship with each of their parents. They both propose that the children continue to spend time in the care of each parent on a regular basis. I agree with the submission of the ICL, to the effect that the children have "two very dedicated parents" and that "in reality, there is no issue about meaningful relationship."
I have some reservations as to the mother's sincerity in her suggestions that she actively wishes for the children to have an appropriate relationship with the father. In my view, it might more accurately be said that the mother accepts that the Court is likely to take steps to ensure that the children continue to spend meaningful time and maintain a parental relationship with the father. Notably, the mother conceded in cross-examination that she told the children that "they were legally required to spend time with the father" and that she "would get into trouble if they did not". The mother initially denied that she made these statements to the children. She conceded that she did so, however, when confronted with an affidavit in which she had made these concessions at an earlier stage in the proceedings.
On the other hand, the mother succeeded in persuading C to leave the home of her brother on 18 August 2016 when she took a bus to his home from school. I accept that the mother corrected C when she called the father "an idiot" and persuaded her to leave with him, although the child was in an upset state. On this occasion, the parents cooperated with each other and effectively dealt with a difficult situation.
No submission was put on behalf of the applicant or the respondents to the effect that there is any need to protect the children from abuse, neglect or family violence while in the care of either parent. The father conceded that he has become angry and raised his voice in the presence of children on some occasions. Obviously, it would be preferable that the father did not raise his voice in the presence of the children but in my view his conduct falls short of establishing any need to protect the children from harm in his care.
Regrettably, both of the maternal grandparents elected to include in their affidavits allegations, of some antiquity, of mistreatment of the children by the father. The maternal grandmother deposed that the father "kicked [B] … that resulted in [B] being catapulted on [Mr Gatting's] foot" in 2006, when the child was a few months of age. When this allegation was explored in cross-examination, however, the maternal grandmother conceded that "it was not aggressive, he used his foot to move him" and that by "catapulted" she meant that "[B] rolled over". In my view, this evidence more probably than not is an accurate indication of the current attitude of the maternal grandmother toward the father.
Section 60CC(3)
The children have expressed views to the effect that they do not want to spend time with the father and Ms H, with C expressing more strongly worded statements than has B. Dr N reported on her interview with C as follows, inter alia:
221.[C] reported that she does not like or love her father and she attributed this to his allegedly abusive punishments, as well as the fact that she claimed he does not give the children anything good, in addition to which he is ‘stingy’ with pocket money.
222.[C] stated that her mother told her that she had to go and spend time with her father because the Court ordered this. [C] reported that she asks her mother questions about what is happening because she wants to know and her mother will answer these, although she hopes that her mother will tell her more. [C] noted that she does not like seeing her father and she does not like spending time at her father's house, in addition to which she claimed to miss her mother and her grandparents when she is with her father. Moreover, she stated that being at her father's house is "boring" and the children are not allowed to do anything fun.
223.[C] believes that [Ms H] manipulates her father and encourages him to make poor decisions in relation to the children, such as with respect to how he punishes the children. [C] described [Ms H] as being "annoying", claiming that she "always" wants to play with the children. [C] added that [Ms H] threatens the children with punishment if they do not want to play with her. To this end, she stated that she does not like [Ms H] and she does not want to see this woman.
224.With respect to the present Court process, [C] offered that she would like to be able to choose for herself when she sees her father. She then commented that if she decides she does not want to see her father, perhaps he will treat her better. [C] also reported that she does not want to stay at her father's house overnight because she claimed that she gets "scared" and she worries about her mother and whether something will happen to her mother and this will mean she has to stay with [Mr. Gatting] and [Ms H]. I note that this is a mirror of her mother's expressed worry".
Dr N reported on her interview with B, inter alia, as follows:
240.[B] reported that he does not like spending time with his father. He claimed that they do not do fun things in his care. For example, [B] offered that he does not like watching movies and he expressed some resentment that he and [C] have to attend his father's wedding. To this end, [B] offered that he does not love his father.
241.[B] did not report that he does not want to see his father, although he claimed to believe that the time he spends in [Mr Gatting's] care is too long because he has to go for too long without seeing his mother or engage in activities that he enjoys. For example, [B] suggested that his father won't let him practise his music and therefore, this will limit his potential as a musician. [B] added that if his father "changes his behaviour", he would be willing to see his father but this would necessarily entail his father being nicer, as well as allowing him to do what he likes without punishment. [B] also commented that he does not want [Ms H] to be present when he sees his father.
…
243.[B] suggested that he would like his father to play a role in his life, although he does not want this to be a "major" one. He is more resistant to [Ms H] playing a role in his life. [B] reported that he does not like [Ms H] "whatsoever", which he claims is because she is "worse" than [Mr Gatting] when it comes to metering out punishment. Further, [B] claimed that [Ms H] tells him that she loves him but he claimed that she does not demonstrate this with her actions. [B] added that he believes [Mr Gatting] and [Ms H] lie to him, which he does not like. For example, he claimed that his father promises to take him to cricket but then he doesn't.
Dr N cautioned against unqualified acceptance of the genuineness of these stated views of the children. She opined as follows:
The children are both of an age where some weight should be given to their expressed wishes and it is important that these children feel heard, especially as the Family Court process has been going on for so long in this case. However, I do believe the children have been influenced by their mother's position and therefore, I have concerns about the genuineness of their expressed wishes, rather than their statements to me being a reflection of the fact that they were in the presence of their mother and maternal grandparents on the day. To this end, I have doubts as to whether the expressed views of the children represent a truly free choice based on their own desires rather than the influence of their mother and their desire to please her. Acknowledging this, [C] stated that she does not wish to see her father or [Ms H] nor does she want this man to play any role in her life. In contrast, [B] would like to spend time with his father but he claimed that he wants this time to be limited and to not involve [Ms H].
It seems to me that certain actions on the part of the father and Ms H most likely have affected the children's reaction to spending time with them. There is no doubt that the father has prevented the children from participating in activities which they value and enjoy, for example, band practice, baseball and cricket. The father conceded in cross-examination that C enjoyed participating in the school band but that he refused to take her to rehearsals on Friday mornings when she was in his care. He stated that he refused to take C to her band rehearsal because the mother and the maternal grandparents had declined to provide an undertaking that they would not attend these events. The father was asked:
"And who was the loser?"
He conceded:
"In that case, unfortunately it was [C]."
I will not identify each and every such refusal by the father to allow the children to participate in their activities, for reasons of practicality. It is sufficient to note that I am satisfied that the father engaged in conduct of this kind on multiple occasions. It seems likely to me that the father's refusal to allow the children to participate in their valued activities has engendered some resentment toward him on their part. As the children appear to perceive that Ms H is an integral part of the father's decision-making processes, it seems likely to me that this resentment extends to her in the minds of the children.
On 24 November 2015 C told Dr M "of her dissatisfaction with the father's refusal to allow her participate in certain activities". Dr M reported as follows:
The brief session of 24 November 2015 was largely a debrief for [C], who walked into the room with a sad appearance, and stated that she was feeling sad as "daddy wouldn't let me go to baseball" and when asked why this was so, she stated, "for dumb reasons" and continued on to explain that it was related to her "minna and pa" (maternal grandparents) wanting to come and watch. [C] also reported that she had run away when told she could not play baseball. [C] appeared to be affected very much by this incident, and by issues relating to not being able to play because of the conflict with her grandparents. She provided details about how, for the rest of the weekend, she was not interested in taking part in activities with her father (such as getting the Xmas tree) and wanted to just lie on her bed and read. She stated, however, that she was punished for doing this and that her father's partner took her book from her when she would not come out of her bedroom."
Dr M reported on an interview with C on 5 March 2016 as follows, inter alia:
She discussed excitedly her addition for the school band (playing flute), but then added, again with no prompt, that her father was not going to allow her to attend one of the two rehearsals required. She then volunteered, "he also won't let me do soccer this year. I can only do every second weekend … and [B] is not allowed to do the soccer trials.
On 7 June 2016 B discussed his extracurricular activities with Dr M. She reported, inter alia, on a session of 7 June 2016 "in response to an open question about how things were going at home":
[B] again expressed unhappiness about the contact visits with his father, and referred to various aspects of dissatisfaction while at his father's home; not being allowed to attend the Eisteddfod "until the last minute", attending swimming only once per week (he stated that he usually attends three times), and not being able to ski. … attention was turned to some of the things he enjoyed with his father, and [B] referred to playing table tennis and "occasionally" playing cricket in summer. He added that his father also came to watch his soccer. This led, however, to a return in his thoughts to his maternal grandparents not being able to come and watch him at cricket ("he doesn't let minna and pa go to the indoor cricket. And then he gets [Ms H's] mum to take me. Sometimes [Ms H] takes me, but he never takes me".
In relation to an interview with B on 29 October 2016, Dr M reported as follows, inter alia:
[B] also appeared quite distracted throughout the session and explained that he was also worried that, after 7 November, his father would not allow him to play cricket because his grandparents were intending to start attending again. [B] had previously reported that he would like his grandparents to attend his sporting matches. During this session, [B] reiterated his preference for having them attend his sporting matches. …"
Dr N set out in her report detailed observations of the children's interaction with the maternal and paternal families. She summarised her assessments of the nature of the children's relationships with their parents, the maternal grandparents and Ms H as follows:
294.As noted above, the children appear to have close and significant attachments to their mother and maternal grandparents. They also have a tangible bond with their father, although this is less intense than with their mother and this is even more so for [C], who seems less attached to her father when compared to [B]. Neither child seems to have a particular attachment to [Ms H], although [B] is certainly more comfortable and engaged with [Ms H] when compared to [C]. The children appear to see their mother as their primary caregiver and this has likely always been the case and unfortunately, in this situation, this serves to add to their perceived pressure to make their mother happy by denigrating their father and [Ms H] to her.
In her oral evidence Dr N said:
It is patently obvious that the maternal grandparents and the children are very closely attached and a restraint would hurt them.
She explained that she did not discuss the father's proposal for a restraint on the maternal grandparents with the children because she "did not want to cause [them] stress or distress."
I do not regard the father's non-payment of child support or private school fees as a matter relevant for present purposes, pursuant to section 60CC(3)(ca). I have referred above to the binding child support agreement and overall financial settlement into which the parties entered in 2011. The mother has legal training and she had the benefit of legal representation when she entered into these arrangements. It seems to me, therefore, that it is not open to the mother now to attempt to offer the father's non-payment of child support as a matter which advances her case in these proceedings.
One change proposed by the father was that he would refrain from attending the children's activities, while they are in his care, if there is no restraint on the attendance of the mother and the maternal grandparents. From the children's perspective, it is most unfortunate that people of such importance in their lives cannot negotiate their attendance at these events to the satisfaction of all relevant parties.
The mother and the maternal grandparents described a successful joint attendance at one of B's functions on 17 February 2017. They described polite greetings and an offer by the father to take a photo of all three of them with B. They also referred to the father's request that one of them take a photo of B with himself and Ms H, which was fulfilled by the mother.
The father expressed discontent with the interactions of the adults and children at this event. He deposed:
42.Following the commencement of this hearing, [Mr Snell] has also started to respond to greetings from [Ms H] and I. [Ms A Snell] has not. In particular, on 17 February 2017 we attended a school assembly at which [Ms Snell] and her parents were present. On that occasion, both [Ms Snell] and her father responded politely when we said hello to them and at the conclusion of the event, [Mr Snell] accepted my offer to take a photo of them with [B] so that they could all be in the photo together. [Ms Snell] also offered to take a photo of [Ms H] and I with [B]. Despite this, the mere presence of [Ms Snell] and her family still impacted on the manner in which [B] and [C] interacted with us. For example, both [B] and [C] warmly engaged with their mother and her parents prior to the commencement of the assembly whereas both children pretended not to see me when I waved to them. [C] also went over to her mother and said "goodbye" prior to leaving the assembly hall but walked directly past us on her way out and continued to pretend that she did not see me.
Dr N was asked for her opinions in relation to the dynamics between the maternal and paternal families. In her oral evidence she opined that "the underlying dynamic is relational, not situational. The pressures on the children exist independently of particular events, so permitting the maternal grandparents to attend on conditions will not fix the relational issues."
One main change which the mother sought to implement to the existing parenting arrangements was a reduction in the children's time with the father from four to three nights per fortnight. This proposal was not supported by Dr N, who opined that "we want to maximise their experience of being in the care of the father".
The children have now spent four nights per fortnight in the care of the father for more than two years. In my view, it might reasonably be inferred that they are accustomed to this routine. There was evidence that they have made complaints in relation to certain of their experiences in the father's household. Significantly, however, they have spent this time in the care of the father, other than for the period of unilateral suspension by the mother in June and July 2015. As noted, this time was reinstated after an interim hearing in the Federal Circuit Court on 27 July 2015.
The father sought a change to the arrangements for school holiday time, such that he has the care of the children for half of all of these periods. He gave uncontradicted evidence that he has a basic annual leave entitlement of four weeks per year, with the option of additional time without pay. He said, convincingly in my view, that if he has the care of the children for half of all school holidays he would wish to spend this time with them and would make the necessary arrangements with his employer.
In terms of capacity to provide for the children's needs and attitude to the responsibilities and duties of parenthood, Dr N offered criticisms of both the mother and the father. In her oral evidence she said "both parties have been guilty of bad behaviour". She drew attention to paragraph 289 of her report, where she stated:
It is clear that [Mr Gatting] and [Ms Snell] have polar opposite perspectives on parenting and whilst [Mr Gatting] has sought to be conciliatory in this, at least superficially, [Ms Snell] does not appear that she has been willing to concede that [Mr Gatting] has any skill as a parent or any value to his children beyond being their father. As such, in my opinion, [Ms Snell] has sought to establish a parenting structure that is consistent with her ideals, and which is an emulation of her parents' parenting practices. When [Mr Gatting] does not comply with this, [Ms Snell] is upset and she becomes overly anxious about the impact this will have on the children, should any deviation occur from her expected parenting practices. Within this context, she does not prioritise the children's attachment to their father, whilst [Mr Gatting] does not prioritise the children's activities as much as [Ms Snell].
In cross-examination, Dr N was taken to an email exchange between the parents at the time of B's surgery in April 2015 (pp 323-325 annexures to the affidavit of the mother). As noted above, the father insisted initially that B leave the hospital with him on the day of the surgery and be transferred into the care of the mother on the following day. Ultimately the father desisted and allowed B to leave the hospital with the mother, thus sparing him a changeover while he was in a state of pain and distress on the following day. Having read these emails, Dr N conceded that "the mother's position was conciliatory and child-focussed" and that the father "was putting a less than conciliatory position".
In cross-examination Dr N was taken to the incident when C left school and travelled by bus to the home of her uncle, Mr L Snell. Dr N conceded that the mother's handling of this incident indicated that "this is another example that my finding at paragraph 287 was wrong."
Dr N described Ms H in laudatory terms in her report. She opined as follows:
210.Despite claims to the contrary, [Ms H] impresses with a balanced, realistic, appropriate and sensitive understanding of children's needs both in general and specifically as they pertain to [B] and [C]. She did not report having inappropriate expectations of the children and she described a mature, sensible and child-focussed approach to developing a role in the children's lives, given her impending marriage to their father.
Obviously, Ms H engaged in behaviour at Brisbane airport in April 2017 which could hardly be considered to fall within these parameters. Dr N was provided with the written evidence in relation to this incident and commented: "it is very concerning that it happened in a public place and that she could not control herself".
It may be that the father introduced Ms H into the lives of the children with undue haste and that, too precipitously, he permitted her too much influence or power in decisions while they are in their household. It seems to me to be of little utility now that I examine and attempt to make findings concerning each of the children's complaints in relation to Ms H. Obviously, the children have taken exception to certain expectations and requirements of them in the father's household. I have referred above to the limitations placed on their extracurricular activities. Another example was the requirement that they hug Ms H, contrary to their wishes.
Overall, it seems to me to be more probable than not that the father introduced Ms H into the lives of the children with undue haste and quickly elevated her role in their lives to a level of importance with which they did not cope well at the time. It seems to me to be likely that these complex dynamics came to a head with the incident at Brisbane airport. Of itself, that unfortunate episode demonstrated that there are some difficulties in the children's relationship with Ms H. As the ICL submitted, however, the father's handling of this very difficult and sensitive situation reflected most favourably on his capacity to provide for the needs of the children.
In terms of orders which are least likely to lead to further litigation, history unfortunately gives little basis for optimism. These children have been subject to litigation between their parents since 2011. The only basis for a glimmer of optimism was that, ultimately, all of the parties agreed to undertake family therapy.
Equal and substantial and significant time
It was common ground that there should be an order that the mother and the father have equal shared parental responsibility for the children. Consequently I am required to consider whether it would be in the children's best interests, and reasonably practicable, that they spend equal time with each parent. I am required to undertake this exercise despite the fact that no party sought such an order and neither the ICL nor the single expert made any recommendation for this outcome.
Nothing in the evidence persuades me that the imposition of an equal time arrangement would be in the best interests of the children. Such a regime would be contrary to the wishes of the applicant, the respondents and the children. There was no expert evidence as to the likely effect on the children of the imposition of an equal time arrangement. The evidence did not address whether equal time would be reasonably practicable, no doubt due to the fact that no party made such a proposal.
For these reasons, I conclude that an equal time arrangement would not be in the best interests of the children. I am unable to reach any conclusion in relation to the reasonable practicability of such a regime. For these reasons, I have considered and decline to make orders that the children spend equal time with each of their parents.
I am then required to consider whether it would be in the best interests of the children, and reasonably practicable, that they spend substantial and significant time with each parent. As identified above, the outstanding issues in these proceedings are capable of definition and determination on an individual basis, within the framework of the evidence relevant to the considerations set out in section 60CC of the Act. I propose to determine the outstanding issues in this manner.
School term time
The ICL supported the father's proposal that the children continue to spend four nights per fortnight in his care during school term time. He referred to "the lived experience of the father's household" and to the benefit of changeovers at the children's school.
Essentially, Dr N supported a continuation of the current arrangement of four nights per fortnight for the children in the care of the father. The respondents levelled criticisms at Dr N, inter alia, on the basis that her recommendations did not reflect the stated views of the children. In fact, the proposal of the respondents for three nights per fortnight did not accord with the views stated by the children to Dr N and Dr M. As noted above, C told Dr N that she wished to choose for herself when she spends time with the father. As noted further, B expressed to Dr N that he did not wish to stay overnight in the father's home. Accordingly, it is patently obvious that the orders sought by the respondents did not reflect these stated views of either child.
I appreciate that the children have expressed a desire that their wishes should be heard and taken into account by their parents and the Court. The fact is, however, there was no evidence that they have articulated a wish for a reduction from four to three nights per fortnight in the care of the father.
I am not satisfied that the removal of one night per fortnight would have any appreciable beneficial impact on the children's relationship with the father. As noted above, this regime has now been in place for approximately two years. In these circumstances, I can identify no basis for a conclusion that the children's best interests require a reduction from four to three nights per fortnight in the care of the father. I will make orders for school term time in accordance with the proposals of the father and the ICL.
I would add that, in my view, the father would be well advised to attempt to accommodate the children's activities while they are in his care during these periods. I suggest that he could usefully reflect on the damage which he caused to C, by his own admission, when he refused to allow her to attend school band rehearsals.
School holiday time
The ICL proposed that the children spend half of all school holidays in the care of the father. I can identify no particular benefit to the children in the imposition of a limit of four weeks per annum of school holiday time in the care of the father.
The paternal grandparents live in Queensland and, in my view, this relationship should be fostered in the interests of the children. I appreciate that there was a suggestion in the evidence that the paternal grandmother hit B during a visit to Queensland but, equally, there was a feasible alternate account of this alleged incident. A greater opportunity for the children to spend time with the paternal grandparents will be afforded if there is an order that the children spend half of all school holidays with the father.
As noted above, the father gave uncontradicted evidence to the effect that he can make arrangements with his employer to be available to care for the children himself during all school holiday periods which they spend with him. The father would be well advised to ensure that he personally is present at all reasonable times, particularly in light of the conduct of Ms H at Brisbane airport.
Additionally, the father proposed that each of the parties have the opportunity for overseas travel with the children. Orders that the children spend half of all school holidays in his care would facilitate the opportunity for overseas travel with the father, which I am satisfied would be a beneficial experience for them.
For these reasons, I will make orders for school holiday time as proposed by the father and the ICL.
Telephone contact
Telephone contact has proved to be problematic in the past and, in fact, was one precipitating factor in relation to the episode at Brisbane airport. Each of the parents has complained that the other has failed fully to facilitate telephone contact.
I see benefit in the suggestion of the ICL that there be a fixed time for telephone contact with the non-caring parent. I consider, however, that a requirement for telephone contact each day is likely to generate conflict between the parents. I will accede to the proposal of the father in relation to telephone contact. I am not prepared to leave the matter of telephone contact with the father solely to the discretion of the children, as proposed by the respondents.
Changeover point
No submissions were directed to the issue whether changeovers which do not occur at the children's school should take place at Suburb G shopping centre or the home of the mother. My decision on this issue accordingly must be arbitrary and would better have been made by the parents.
Since I am required to make a choice, I will order that non-school changeovers take place at the home of the mother. I do not consider that the children would benefit from an indication that it is inappropriate for their father to collect them from and return them to their mother in a public place, rather than at the home where they live for the majority of the time. I note that the father deposed that there has been an improvement in the quality of communication between the parents since the trial commenced in February 2017.
Time on Father's Day and Mother's Day
Again, I had the benefit of no submissions on this issue. Each of the parents proposed that the children spend time with the other from the day before until the day subsequent to these occasions. The mother proposed a period of 5.00 pm on the preceding day until 5.00 pm on the subsequent day, while the father sought a commencement time of 3.00 pm and conclusion at 9.00 am on these days.
Again, I am called upon to make an arbitrary decision which I doubt will have an appreciable impact on the welfare of the children. In my view, commencement at 5.00 pm on the day before these occasions and conclusion at 9.00 am on the following day would be sufficient for an appropriate celebration with the relevant parent.
Restraint on the mother enrolling the children in more than three extracurricular activities during time with the father
Essentially, the competing considerations in relation to this issue amount to the children's opportunity to continue to participate in extracurricular activities which they enjoy and value and the consequent restrictions on the father's potential to engage with them in pursuits which they might select together. The mother sought, effectively, that she be permitted to enrol the children in an unlimited number of activities. In the words of the ICL, the consequence of the mother's preferred option would be that she "would probably enrol the children in whatever activities she likes and the father will be the bad guy when he does not take them on his weekends."
In my view, there is merit in the position adopted by the father and the ICL. In my view, the mother in the past has effectively tried to force the father to conform with arrangements which she has put in place while the children are in his care and he has adopted an overly rigid oppositional position. As noted above, the father, effectively conceded that his refusal to allow the children to participate in some of their activities has had detrimental consequences to his relationship with them.
I accept the submission on behalf of the father, to the effect that the orders which he proposed on this issue were "an attempt to achieve a balance". In my view, the father's proposal does achieve that balance and I will make orders accordingly.
Extracurricular activities during school holidays
The father sought an order to restrain the mother from enrolling the children in any extracurricular activities while they are in his care during school holidays. I had the benefit of no submissions on this issue but I see merit in the father's position.
If the mother is permitted to enrol the children in extracurricular activities during their time with the father during school holidays, there will be restrictions on the father's opportunity to engage in pursuits of his choice or to take holidays outside of Canberra. If the father failed to take the children to an activity in which they expected to participate, he would run the risk of an adverse reaction from them and potential damage to their relationship.
I can see no reason, which pertains to the welfare of the children, to make orders which enable the mother to impose such restrictions on the children's school holiday time with the father. I will accede to his application on this issue.
8 and 9. Restraint on attendance of the mother and maternal grandparents at the children's activities during time with the father
Presciently, the ICL observed that "an injunction resolves the activities issue but not the underlying problem". It can only be hoped that family therapy will address successfully the relationship dynamics which have created these difficulties.
The ICL opined that the father's proposal "is reasonable and balanced and allows attendance at a range of events". He supported the orders proposed by the father, which would permit the attendance of the mother and paternal grandparents at music concerts, sporting finals and any other events to which he gives consent.
I am mindful of the evidence of Dr N, to the effect that the children have a close relationship with the maternal grandparents and that "a restraint would hurt them". On the other hand, their relationship with the father is highly significant in the context of the children's on-going development toward adulthood.
On balance, I consider that the children's best interests will be served by the orders proposed by the father and supported by the ICL. I will not make the order proposed by the father in paragraph 21 of his Minute, by which seeks to regulate the behaviour of the adults at these jointly attended events. In my view, such an order would be demeaning to intelligent and educated adults such as the parents, maternal grandparents and Ms H. Perhaps more importantly, the use of subjective terms such as "polite" may create difficulties of interpretation with this proposed order. For the same reasons, I decline to make orders in accordance with paragraphs 31 and 32 of the Minute submitted by the father.
Counsel for the father stated during his final submissions that he would consent to an order that he facilitate the children's attendance at the ACT Schools Cup, if they wish to attend and are in his care on that day. This event is a skiing competition, which apparently is an important occasion for the children. I will make such an order with the father's consent.
10 and 11. Restraint on attendance at the children's school by the mother and the maternal grandparents
I had the benefit of no submissions in relation to this issue. I am not prepared to make these proposed orders in such a vacuum, particularly in light of the fact that Mr and Ms A Snell have other grandchildren at this school. Surely the relevant adults can be relied upon to conduct themselves appropriately during any such brief encounters, without the intervention of the court.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 26 September 2017.
Associate:
Date: 26 September 2017
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Procedural Fairness
-
Remedies
0