GE and KC - [2005] FMCAfam 45

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GE & KC

[2005] FMCAfam 45

FAMILY LAW – Parenting – father seeking additional contact – child diagnosed with ADHD – mother seeking restrictions on father’s decision-making during contact.

Family Law Act 1975

B and B; Family Law Reform Act 1995 (1997) 22 Fam LR 676
King v Finneran [2001] FamCA 344
Rice v Asplund (1979) FLC 90-725
VR v RR (2002) FLC 93-099

Applicant:

Respondent:

File No:

PAM 2605 of 2004

Delivered on:

16 February 2005

Delivered at:

Parramatta

Hearing dates:

3 and 4 February 2005

Judgment of:

Sexton FM

REPRESENTATION

Counsel for the Applicant:

Mr G Thistleton

Solicitors for the Applicant:

Watts McCray

Counsel for the Respondent:

Mr M Kearney

Solicitors for the Respondent:

Champion Legal

ORDERS:

THE COURT ORDERS BY CONSENT on 3 February 2005:

That the father shall at all times observe the child’s medical requirements and in particular shall ensure the child wears ear plugs at any time he is swimming.
That the mother authorise and direct the Principal of any school attended by JWR to forward direct to the father, newsletters, notices, reports, applications for photographs and the like normally received by parents and the father shall be at liberty to make arrangements to discuss JWR’s progress with JWR’s teachers provided that he not make arrangements so that they coincide with the mother’s arrangements.
That each party notify the other as soon as practicable in the event JWR is involved in a serious accident or sustains a serious illness whilst in that party’s care.
That neither party change JWR’s school or residential address without providing twenty eight (28) days notice of an intention to do so to the other party.
That the father is restrained from taking the child to any medical expert for assessment without the Mother’s written consent.
That the mother forthwith authorise and direct all of JWR’s medical specialists and general practitioners to release to the father all such information requested by the father regarding JWR.
That the mother forthwith provide to the father a list of all medical specialists and general practitioners who currently treat JWR or with whom appointments have been made for JWR, with such list to include contact numbers and addresses for the specialists/ doctors’ rooms and such list to be updated with any new specialists or doctors.
That the mother shall provide to the father at least two (2) weeks notice (if possible) of all medical specialist appointments for JWR and the father shall be permitted to attend all such appointments.
For the school holidays commencing in December 2005 and December 2006 the father’s contact shall be in blocks of not more than seven (7) continuous days with the mother to retain JWR for seven (7) continuous days between such blocks.
For all Christmas school holidays the father’s contact shall always finish seven (7) days before JWR is required to attend school.
That if Mother’s Day falls on a contact weekend then contact shall finish at 9.00a.m on Mother’s Day.
That if Father’s Day is not a contact weekend then the father shall have contact from 9.00a.m until 5.00p.m on Father’s Day.
On each of:
(a)The father’s birthday, 29 March;
(b)The mother’s birthday, 1 October;
(c)JWR’s birthday, 20 February;
if such days are not contact changeover days then the party with whom JWR is not then in the care of shall be entitled to the care of JWR from 4.30p.m until 7.00p.m and the other party shall take whatever steps are necessary to ensure that this arrangement is put into effect.

THE COURT FURTHER ORDERS:

That Orders made by the Family Court on 8 October 1999 be discharged.
That the parties have joint responsibility for making decisions about the long term care, welfare and development of the child of the relationship, JWR [“JWR”], born 20 February 1997.
That JWR reside with the mother.
That the mother have responsibility for making decisions about the day to day care of JWR when he is in her care and the father have responsibility for making decisions about the day to day care of JWR when he is in his care.
That JWR have contact with the father as follows:
(a)Each alternate weekend from after school Friday until Sunday afternoon at 5 p.m. extending to 5 p.m. Monday if Monday is a public holiday.
(b)From after school Tuesday until before school Wednesday each week.
(c)For one half of each school holiday period at the end of Terms 1, 2 and 3, including the Easter holiday period if Easter falls outside a school holiday period, times to be agreed between the parties by a date no later than 28 days from the first day of the relevant school holiday (or Easter) period, and if no agreement by that date, contact shall occur in the first half of the holiday periods in 2005 and alternate years thereafter and in the second half in 2006 and alternate years thereafter.
(d)Subject to Orders (9), (10) and (18) (e)(f)(g), herein, for half the Christmas school holiday periods commencing the day after the conclusion of the school term in 2005 and each alternate year thereafter and on a date after Christmas in 2006 and each alternate year thereafter, such that JWR spends an equal number of days with each parent and in the event there are an uneven number of days, JWR shall spend the extra day with the mother.
(e)For the purpose of calculating the number of days in the Christmas school holiday period, the first day of holidays is the day immediately following the last day of the school year and the last day is the day before the day the new school term begins.
(f)From 3.00p.m Christmas Eve until 3.00p.m Christmas Day in 2005 and each alternate year thereafter and from 3.00p.m Christmas Day until 3.00p.m Boxing Day in 2006 and each alternate year thereafter.
(g)By telephone on Wednesdays each week and on Friday evenings of the non-contact weekend between 5.30 p.m and 6.00 p.m when the father will telephone JWR and the mother will facilitate such contact for JWR in private.
(h)By telephone at any other reasonable time by JWR telephoning his father.
Weekend and weekday contact shall be suspended during school holiday periods and resume in the next school term as though there had been no interruption to such contact.
That within 21 days of order, the father consult with Ms VE in relation to her tutoring programme with JWR and make the necessary arrangements to observe a minimum of two tutoring sessions with JWR within six weeks of order.
Within 14 days of Order the father and the mother contact Unifam at Parramatta to arrange an appointment within 30 days for an initial assessment as to suitability for a post-separation parenting program.
That the mother and the father attend the appointment at any reasonable location nominated by Unifam and complete the assessment.
If assessed as suitable for a program the mother and the father must attend that program as the provider directs as soon as practicable.
The program provider is requested to notify the court in writing as soon as practicable if either party has failed to attend the initial assessment or failed to attend the program and the Registry manager must re-list the proceedings to determine what further appropriate orders should be made in relation to the non-attendance.
Both parties are to provide proof to the Court of participation in accordance with the requirements of the parenting course.
That the father be prohibited from denigrating the mother or any member of the mother’s family in the presence or hearing of JWR.
That the mother be prohibited from denigrating the father or any member of the father’s family in the presence or hearing of JWR.
That a sealed copy of these orders and reasons be provided to Unifam by the applicant father at the time of the initial assessment.
That pursuant to Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collect that subpoenaed material and return it to the owner within seven (7) days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 2605 of 2004

Applicant

And

Respondent

REASONS FOR JUDGMENT

Applications

These are proceedings for parenting orders in relation to a child JWR aged almost 8 years. Both parties agree that the child should live the majority of the time with his mother.
The proceedings were commenced by the father who filed an application on 20 May 2004 seeking to vary the parenting orders made by the Family Court in October 1999 when JWR was 2 years

8 months of age. The father sought increased contact with JWR and other specific issues orders. Residence was not in issue.
The mother filed a Response on 16 June 2004 also seeking to vary the parenting orders of 1999. The mother sought additional specific issues orders.
Both parties were represented by counsel. Prior to the commencement of the hearing the parties agreed on a number of specific issues and orders were made in those terms on a consent basis on the first day of hearing. Both counsel then agreed on the issues requiring determination by the Court, which I set out as follows:
a)Whether alternate weekend contact should conclude on a Sunday afternoon or a Monday morning before school.
b)Whether JWR should spend a weekday overnight each week with his father.
c)The frequency of telephone contact.
d)Whether the father should continue to be restrained in relation to persons attending at contact changeover (as in the 1999 Family Court orders).
e)Whether the father should be required to take holidays during all periods of JWR’s holiday contact with him.
f)Whether the father should ensure JWR’s attendance at his sporting commitments on all contact weekends including long weekends.
g)Whether JWR should spend all Christmas mornings with his mother or whether JWR should spend Christmas mornings in alternate years with each parent.

Background

The father was born on 29 March 1976. He is 28 years old.
The mother was born on 1 October 1971. She is 33 years old.
The parties started living together in March 1995 and separated on

20 December 1997.
There is one child of the relationship, JWR, born 20 February 1997 (“JWR”).
Orders were made by the Family Court on 2 July 1998. Those orders provided for JWR to have contact with his father during the day time and for other specific issues. Further orders were made by the Family Court on 8 October 1999 after a defended hearing. In summary, the orders provided for JWR to live with his mother and to have contact with his father on alternate weekends and for three separate weeks each year [introduced on a graduated basis].
Both parties have re-partnered since those orders were made. The father has been living in a de facto relationship with Lisa-Jane Abel since January 2003. The mother commenced a relationship with Bradley Cairns in 1999 when JWR was two years old and they married in January 2001. They have a daughter MO aged 4 years and are expecting another child in June this year.
JWR has lived with his mother since the parties separated.

Issues

The issues before the Court concerned JWR’s health as a factor to be taken into account in parenting arrangements, the amount of time JWR should spend with his father and whether any conditions should be imposed on the father when JWR is with him during holidays and at contact changeover.

The relevant law – parenting

Parenting orders arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E which provides that a court must regard the best interests of the child as the paramount consideration. Section 60B(2)(a) emphasises the rights of a child to (i) know both parents and (ii) to be cared for by both parents. These rights apply whether the parties are married or separated. The right to know both parents has been recognised as a fundamental consideration and it is only in the most exceptional of circumstances that orders would interfere with that right.
Section 60B(2)(b) provides that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. It recognises the desirability of contact. The word ‘regular’ implies that contact should be as frequent as is appropriate. In B and B; Family Law Reform Act 1995 (1997)

22 Fam LR 676 the Full Court of the Family Court said “it is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long term.” In considering how much contact should be ordered, the court must make the order which it considers to be in the best interests of the children.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2) of the Act. Its subsections set out a list of matters the court must consider to the extent each subsection is relevant to the particular case. I have considered subsections (a)(b)(c)(e)(f)(h) and (k) in this matter.
Section 65D(1) of the Family Law Act provides:
In proceedings for a parenting order, the court may… make such parenting order as it thinks proper.”

Evidence and findings

The mother relied on:
·Her affidavit affirmed 18 January 2005.
·The affidavit of her husband Mr BC affirmed 19 February 2005.
·The affidavit of Ms VE affirmed 22 January 2005.
The father relied on:
·His affidavit sworn 19 January 2005.
·The affidavit of his partner LJA sworn 27 January 2005.
Both parties tendered documents which became exhibits in the proceedings.
Orders were made by the Family Court in October 1999 after a defended hearing in September 1999 before His Honour Justice Coleman. His Honour delivered a written judgement on 8 October 1999. His Honour gave detailed reasons and made careful orders in relation to the times JWR should live with each of his parents. His Honour made specific issues orders in relation to contact changeover and prohibited the parties from denigrating each other.
In closing submissions in these proceedings counsel for the mother said the Court must consider the threshold test in Rice v Asplund (1979) FLC 90-725 as well as the Section 68F(2) factors. The Full Court of the Family Court in Rice v Asplund at p.78,905 held that the court should have regard to any earlier order, the reasons for that order and the material on which that order was based and that there should be circumstances which require the court to consider afresh how the welfare of the child should be best served. His Honour Justice Collier in King v Finneran [2001] FamCA 344 said “The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation.”
Both parties in the present case sought to vary the orders made in October 1999. Since those orders were made a number of changes have occurred which are directly referable to JWR and of some consequence:
i)JWR has started school.
ii)JWR has been diagnosed with attention deficit hyperactivity disorder.
iii)Both parties have re-partnered.
iv)The mother and her husband have had a child and are expecting a second child.
v)The father now works in his own business with flexible hours.
Both parties in their affidavits depose to details of these significant changes in circumstances since the orders of October 1999. The father in his application sought a substantial, rather than insignificant change, to the existing contact arrangements and in relation to specific issues concerning JWR. In considering the Rice v Asplund issue, I must have regard to the best interests of JWR as the paramount consideration by virtue of Section 65E of the Family Law Act. I have decided there are circumstances which require the court to consider afresh how the welfare of the child should be best served and that to allow this further hearing to proceed will advance JWR’s welfare.
Counsel on both sides acknowledged the substantial conflict which has characterised the parties’ relationship since separation. It was evident from the affidavit material and throughout the proceedings that the parties disagreed about many aspects of parenting JWR and that they were unable to communicate about even the most basic issues concerning him. It was equally evident from the evidence of Ms VE, JWR’s tutor, that JWR was caught in the middle of his parents’ conflict and was suffering significantly as a result. I am not persuaded by the father that communication is better than it was because he can communicate with the mother via her husband. Neither am I persuaded by the mother that she intends to improve her communication “because I know I have to”. I am satisfied both parties have lost sight of what is best for JWR in their quest to expose each other’s faults and weaknesses. His Honour Justice Coleman’s words in his reasons for judgment in October 1999 at page 19 were unfortunately prophetic:
Whilst one would hope that one day the parents could agree about future parenting of JWR, regrettably, that day is far distant.
Despite the emphasis placed by counsel for both parties on the negative impact on JWR of the parties’ failure to communicate effectively, neither addressed me on how the parties might be assisted to improve the situation. Counsel for the mother said it was ‘utopian’ to suggest the situation could improve. I am not satisfied either party has good insight into the damage they have done and are doing to JWR by behaving as they do, but I am satisfied they have some insight and may be assisted by professional help.
JWR’s special needs were a central issue at hearing. The mother said she became aware JWR was not performing well at school in May 2002. The school counsellor referred JWR for a hearing test which resulted in grommets being inserted. JWR was then assessed by an occupational therapist who recommended regular sessions of occupational therapy and monitoring by a Behavioural Optometrist. JWR’s ear nose and throat specialist recommended JWR be assessed by the Child Development Unit at Westmead Children’s Hospital. The resulting Speech and Language Assessment report recommended JWR undertake language therapy and that his parents work with him at home on a daily basis. In November 2002 JWR was assessed by an optometrist. He was found to have difficulty focussing accurately. JWR was prescribed glasses for the classroom and for close work at home.
The mother deposed to providing the father with reports from the occupational therapist, from the Blacktown Speech Pathology Service, from the optometrist and from the Brain and Behaviour Centre at Westmead, as well as school reports. Four letters from her to the father were tendered in evidence [Ex R1] to support her contention that she kept the father informed about issues concerning JWR’s health. One of the four letters was written to the father’s solicitors before the 1999 hearing about protecting JWR’s ears. One was a letter in September 2002 again concerning JWR’s need to wear earplugs in the water. One was written in January 2004 concerning his need to take Efalex and his need to wear glasses for certain activities. The fourth was dated 10 June 2004 enclosing a copy of Ms VE’s assessment and notifying the father that a Dr Butler, paediatrician has recommended that JWR take dexamphetamines for his learning difficulties. The letters were brief and after the event. It is clear to me from the content of those letters that the father had not been involved in any of the decisions leading to the outcomes notified.

In Term 2 of 2003 JWR was moved from Rouse Hill Public School to Rouse Hill Anglican College. The mother deposed to the school offering JWR a learning support programme to assist him with his school work, something Rouse Hill Public School could not provide. The mother said his performance had improved since the change in school. The father was not involved in this decision.
In 2003 JWR was diagnosed with attention deficit hyperactivity disorder by a Consultant Paediatrician Dr MJH. JWR is treated with dexamphetamines and is under the care of Dr TA, paediatrician. In February 2004 JWR’s cognitive functioning and reading skills were assessed by clinical psychologist Ms VE at the instigation of the mother, without consultation with the father. Ms VE’s report was in evidence. It was not contested by the father that the mother gave him a copy of Ms VE’s assessment report. Ms VE found that JWR was functioning in the low average range of cognitive functioning with mild gross motor deficits. She found he was restless, had memory and oral expression problems and mild problems with comprehension. In summary, she concluded that JWR needed an individualised reading, spelling and maths programme, preferably duplicated in the classroom. In December 2004 Ms VE prepared comments on JWR’s progress which were annexed to her affidavit at Annexure D. She found him improved in reading, spelling and maths. She believed the stimulant medication had significantly assisted his ability to focus though was concerned about recent deterioration in his concentration. Ms VE said JWR showed her very clearly he did not want to talk about his parents. He said to her “it has to be fair”. He hung his head when she raised the topic. In her oral evidence, she said it was the view of JWR’s paediatrician that the conflict between his parents was likely to be the main cause of JWR’s inability to concentrate. She made these comments:
“JWR would be helped if his parents did not display their antagonism towards each other…and in front of JWR.”
“JWR would be helped greatly if all adults supported the need for him to accept the extra help he is offered by showing a positive interest in assessment sessions and what is occurring in remedial sessions. All adults should be helping each other to provide assistance with home based exercises.”
Ms VE said JWR needed to do some spelling, reading and maths every week day, ideally for 20 minutes, and ideally at the same time each day, but not necessarily assisted by the same adult. He should be encouraged, affirmed and the extra work should be part of his routine, something he accepts has to be done. In Ms VE’s opinion, it was critical for JWR’s social and educational development that he made progress at this stage of his schooling. Otherwise, he could have more significant social and educational problems later on. Ms VE listed issues needing to be addressed by the father if JWR were to stay overnight with the father during the week: getting JWR to bed at his usual time; knowing what homework he needed to do and helping him with it calmly; doing his 20 minutes of remedial work and any other exercises recommended by his treating professionals. She said it was essential that the father at all times refrained from any negative comment about the mother or her family; refrained from negative comment about JWR’s school, homework, assessment or learning aids; communicated and interacted with the mother in a way that has her feeling safe and calm and in a way that demonstrates to JWR that his father respects his mother. Ms VE said she would welcome the opportunity to spend some time with the father and had suggested such a meeting to the mother some time ago. Ms VE believed, because of JWR’s need for considerable assistance with organisation and routine, JWR should be returned home to his mother on Sunday afternoons rather than to school Monday mornings on a contact weekend. If what had been said to her by the mother about the father’s undermining of her efforts to assist JWR were true, Ms VE said contact times should not be increased. Ms VE was not aware of the father’s sense of isolation from decision-making about JWR. She was not aware orders had only just been agreed to in relation to the father having the opportunity to consult with JWR’s treating professionals and teachers. She acknowledged she had only heard the mother’s version of events. She agreed with counsel for the father that it would be of great assistance to JWR to know his father supported his efforts with this remedial work and was able to work with her and the mother to work towards achieving JWR’s potential. She said “I can usually persuade someone to be on the team.”
The mother said she gave JWR some help with his remedial work but because of her own dyslexia found it preferable for Ms VE to be involved. The mother said her husband sometimes helped JWR with his work. Mr Cairns said he did not help JWR regularly though did assist occasionally and was not “100% sure” of what Ms VE was doing with JWR. In Ms VE’s view JWR needs a lifestyle that minimises change, maximises routine and provides firm and clear boundaries. JWR needs consistency and support in relation to his remedial work.
The father was cross examined as to his attitude to JWR’s ADHD diagnosis. The father said he had had difficulty accepting that JWR suffered from ADHD which required medication because he had been excluded from JWR’s consultations with doctors and denied information about his health. He now assumed JWR suffered from ADHD but was concerned about his observations of the effect on JWR’s demeanour after being given a dexamphetamine tablet. The father has never given JWR any medication himself. He said he had wanted to discuss JWR’s condition with his treating professionals but despite his efforts, had been unsuccessful. He deposed to being refused access to JWR’s specialists. The mother strongly denied this. She deposed to giving the father details of several of JWR’s medical appointments, none of which he attended. Both the mother and her husband said the father would not accept JWR required glasses. Mr Cairns deposed to the father being angry when he handed him JWR’s glasses denying he needed them.
After receiving Ms VE’s report on JWR, the father said he had tried to contact Ms VE on two occasions but did not receive a return call. Ms VE thought this unlikely. The father expressed a willingness to learn and follow JWR’s routine so JWR would face minimal disruption when moving between households. He acknowledged JWR’s need for predictable arrangements day to day.
The mother was cross examined about JWR’s usual routine in 2004 deposed to at paragraphs 39 to 52 of her affidavit. In summer, apart from his schooling, JWR was involved in swimming lessons, T-ball, occupational therapy, and weekly tutoring with Ms VE. In winter, football replaced T-ball. In 2004 JWR had a game of T-ball or football on weekends, depending on the season, and the mother expected the same to occur this year. The mother acknowledged the days and times of JWR’s activities changed from time to time and that appointments for tutoring were arranged each week to fit in with his other commitments. I am satisfied JWR has a flexible, rather than rigid routine in relation to his activities outside school. Days and times change from time to time.
The mother was cross-examined as to how the father might assist with JWR’s remedial work at home. The mother had difficulty responding to questions on this issue but was adamant the father would be of no help. The mother appeared to be incapable of changing a position she had held for some time. She was convinced the father had no interest in helping JWR and did not accept his evidence that he wanted to be involved. When it was put to the mother that it would surely be helpful for the father to be on her side in relation to working with JWR, the mother said “he would never be on my side.” I found the mother to be immovable on this issue. She is convinced the father is in denial about JWR’s learning difficulties, need for glasses and need for medication and that he will remain in denial. In her view, this renders his offer of assistance meaningless.
The mother agreed the parties had very poor communication and that she found the father intimidating and irritating. In her experience the father would not engage sensibly in discussions about JWR’s needs. She said the father denied JWR had any problems and took no interest in his school or school work. She had given up sending JWR’s homework on contact weekends because the books were never opened. She had been distressed at a discotheque last year when she believed the father and his partner were staring at her and giggling. She has no contact with the father at changeover times. She avoided answering a question put to her by counsel for the father “don’t you think that now Mr GE [the father] can see these professionals he can pull in your direction?” I have concluded the mother has reached a point where she is emotionally incapable of accepting the father has any positive role to play in improving JWR’s educational standards. However, I found no objective foundation in the father’s evidence for her conclusion. In fact, I found the contrary.
The father asked that JWR spend 5 nights each fortnight with him, rather than the current arrangement of two nights each fortnight. The father said he had a very close relationship with JWR. He said JWR had a good relationship with his partner and with his mother. In his view JWR was not coping well with the 13 day period between his contact visits on alternate weekends. He said JWR had expressed his wish to spend more time with him on many occasions: “he tells me every time he sees me” “he always wants to stay longer”. He said he had been concerned for a long time about his lack of involvement in JWR’s day to day life. He wanted to be part of JWR’s routine, involved in his schooling and homework and involved in his sporting and other commitments. He wanted to consult with JWR’s treating professionals. He wanted to give JWR more help with his reading, writing and maths. He believed it would benefit JWR if JWR knew both parents were involved in this aspect of his life, rather than the mother bearing the whole burden. The father under cross examination said there would be no adverse impact on JWR if the Court made the orders he asked for.
The father believed the mother was excluding him from major decisions and events in JWR’s life, never consulting him before making decisions and providing him with very limited information after the event. One example was the mother’s decision to enrol JWR in football against the father’s wishes. Another was the mother’s decision to engage Ms VE, psychologist to assess JWR’s developmental progress and subsequently to engage her as JWR’s tutor. Ms VE confirmed in evidence that she had originally been engaged by the mother and that the mother or her solicitors had asked for her comments on the father’s proposal for increased contact. The letter to Ms VE from the mother’s solicitors requesting an expert opinion on the likely impact of the father’s proposal on JWR was Exhibit A1 in the proceedings. Ms VE confirmed she had not met or spoken to the father at any time to discuss JWR’s situation. Ms VE said the mother had complained to her regularly during the last few months about her view of the father’s negative impact on JWR’s progress. The source of her comments in Annexure E of her affidavit was the mother, JWR and a friend of the mother’s. She had sought no input from the father. She could not recall the mother ever making a positive comment about the father.
The father believed the mother was making it difficult for JWR to communicate openly with him. The father gave examples at paragraph 39 of his affidavit of the problems he had in the first few months of 2004 exercising the telephone contact in accordance with the October 1999 orders. At paragraph 38 of his affidavit the father deposed to an incident on 4 February 2004:
On 4 February 2004 I received a telephone call on my mobile telephone. It was JWR calling. JWR said to me: “Mum’s in bed asleep she’s feeling sick. If she comes out I’ll hang up and just say I was talking to a friend.” We spoke for approximately 10 minutes and JWR was really talkative and excited that he had been able to telephone me as JWR has told me previously words to the effect of ‘Mummy doesn’t let me call you’. JWR hung up when he thought he heard KC coming and he said to me words to the effect of “I’ve got to go now I think Mummy’s coming” and hung up the telephone.
The father recalled JWR’s excitement at being able to make that call and his own sadness that JWR felt he had to wait for his mother to be sick to be able to call his father. The father also deposed to JWR saying to him:
“I’m not allowed to say ‘I love you’ because I get in trouble and I get sent to my room.”
The mother said it was essential to JWR’s development that he remain in a routine day to day, which only she could provide. She therefore opposed any increase in JWR’s contact with the father.
The mother denied that she had played any part in any difficulties the father may have experienced in relation to obtaining information about JWR from treating health professionals or from his teachers at school. She did however concede that on the other hand, she had done nothing to facilitate his access to such information. She did not see it as something she should do. I found the mother lacked any insight into the vital role she was obliged to fulfil for JWR’s sake to ensure his father knew the details of significant welfare issues affecting JWR. When counsel for the father cross examined the mother on this issue, the mother indicated a limited understanding of what was being asked of her or the reason for the questions. The mother had decided, whether rightly or wrongly, that the father had no interest in JWR as far as health and education were concerned. She said he disagreed JWR needed glasses, disagreed JWR needed to take medication for his ADHD, disagreed he needed special tuition for his learning difficulties, had no understanding of his need for routine, she had therefore not been sending his glasses or medication with JWR on contact weekends. When asked if she would send his glasses in the future, the mother hesitated before agreeing she would.

Long weekend commitments

The mother sought an order that the father be required to remain in Sydney on a long weekend if JWR has a football commitment on a long weekend. The mother deposed to the father refusing to take JWR to football on the June long weekend in June 2004. She was not sure on which long weekends football was scheduled in 2005. Her husband, assistant coach to JWR’s team, said football was not scheduled on the Easter or October long weekends this year. The father opposed any order being made in relation to JWR’s contact with him on long weekends. The father said he was happy to take JWR to his game but not if he and his partner had plans to spend the weekend away with JWR. He said these breaks away were for JWR’s benefit as well as his own. He said it was not uncommon for a member of JWR’s team to be absent for one reason or another and that given his age, attendance at every game was not critical. Mr BC said there were two reserves on the team but it was usual for the boys to attend games unless ill. The father acknowledged the need to teach JWR what a commitment to a team meant.
Counsel for the father submitted the question of balance between meeting sporting commitments and having a holiday on a long weekend was a matter of parental judgment on each occasion the issue arose. He submitted an order prohibiting the father from making a choice about the issue would be inappropriate. He relied on the Full Court decision of VR v RR (2002) FLC 93-099
Section 65D(1) provides that [at paragraph 22]
In proceedings for a parenting order, the court may… make such parenting order as it thinks proper.”
The Full Court said [at paragraph 29 and 30]:
Whilst the word “proper” connotes a very side area of discretion, in our view it is clear from the legislative scheme that any intervention by the court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
In our view it is not the role of the Court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree on the way their child is to be raised. The Court should only interfere in the way in which a parent proposes to raise a child to the extent that the welfare of the child requires interference.
Counsel for the mother submitted that if the father was to have contact, he should accept the responsibility of meeting JWR’s commitments at times he is with him. The mother said in evidence there were no benefits for JWR in going away with his father for a long weekend. She said football was more important. She did not accept the decision was a matter of parental judgment.
Restraints on parental behaviour should only be imposed when there is persuasive evidence the restraint is necessary in the best interests of the child. In VR v RR [already cited], the Full Court said:
We think it is a sound principle that the Court, when determining issues of parental responsibility, should avoid unnecessary interference with the powers delegated to each of their parents.
The parties in this case have different parenting styles and different priorities for JWR. Each must make his or her own judgment about what is best for JWR in every circumstance. The parent with whom JWR is residing at the relevant time is responsible for his care and welfare during those periods and must make judgments about his welfare during those periods. There is no evidence before me to suggest the father will not weigh up the advantages and disadvantages of JWR attending or not attending football [or any other commitment] on a long weekend. I have therefore decided not to make the order sought by the mother.

Contact in school holidays

The mother asked the court to make an order that the father always take annual holidays when JWR spends holiday time with him. The father said in evidence that in his present position, he could take 6 weeks leave a year and would take his holidays during holiday periods when JWR was with him. However, the father opposed an order being made to compel him to take holidays in this way. Counsel for the mother submitted that if the father truly intended to take holidays when JWR was with him, he would not oppose such an order which would be reassuring for the mother. The order proposed by the mother is a final order and JWR is only 8 years of age. To prohibit the father from working at any time during JWR’s school holiday periods with him for years into the future would be onerous and in my view unnecessary interference by the Court. There is no evidence before me to suggest the father has left JWR in an unsafe, unhappy or inappropriate situation during school holiday periods. In accordance with the principles laid down by the Full Court in VR v RR [already cited] I am not persuaded that a restraint of the kind sought by the mother is necessary in JWR’s best interests.

Changeover arrangements

The mother asked that order 3 of orders made by the Family Court on 8 October 1999 be continued. That order provided:
That contact changeovers occur at the mother’s place of residence, provided that the father shall either attend on his own to collect or return JWR, or be accompanied by his mother, but by no other or additional person or persons.
The father opposed such an order. The father said he usually finished work on a weekday at 4.30 p.m. but expected to be able to collect JWR from school at 3.30 p.m. on all but exceptional occasions if JWR were permitted to spend a weeknight with him. He said on exceptional occasions it might be necessary for his mother or sister or his partner Lisa to collect JWR or for him to make some other arrangement for his collection. He said this had happened in the past and the mother had never objected. The mother conceded that she also had at times arranged for someone else to collect JWR from school. She acknowledged she would expect the father to choose someone reliable if he was unavailable. The father agreed it was important for him to collect JWR himself if at all possible and he would do so.

I am not persuaded there is any reason for an order to be made prohibiting the father from making whatever arrangements he believes appropriate in the event he is unable to collect JWR from school or elsewhere for contact. Circumstances arise from time to time which might prevent either parent from being available to collect JWR. There is no evidence before me to suggest either parent would not make an entirely appropriate judgement as to who should transport JWR in such circumstances. I have decided not to make the order sought by the mother.

Christmas Day

I accept the submission of counsel for the father that Christmas morning holds particular delights for young children and for their parents. Unless exceptional circumstances prevail, children should have the opportunity to share the joys offered by each of their parents’ households. I accept the submission of counsel for the mother that JWR has a close relationship with his sister Monique and will love to share Christmas morning with her. By next Christmas there will be another baby in the mother’s home. However, I am not persuaded this circumstance should override JWR’s chance to enjoy this special time with both his parents. It is not contested that JWR has a close relationship with his paternal grandparents and gets on well with Lisa-Jane Abel, the father’s partner. I have made an order that JWR spend Christmas Eve and Christmas Day morning with his father this year, with his mother the year after, and alternately with each of them thereafter.

Weekday and weekend contact

JWR is presently with his father on alternate weekends and during school holidays. The father sought an extension of alternate weekend contact from Sunday afternoon until Monday morning before school. The mother was opposed to introducing contact for JWR on weekdays/weeknights. The father said JWR needed extra time with him to ensure he had meaningful involvement in JWR’s day to day life. He believed it important to JWR’s welfare that he be engaged in JWR’s weekday life at school as well as his leisure time on weekends and in holidays. The mother on the other hand said additional contact with his father would disturb JWR’s routine and create additional hardship for him.
The father said JWR had said to him many times he wanted more time with him. While I accept what the father says about this, I place little weight on JWR’s statements. I am persuaded by Ms VE that JWR is so deeply affected by his parent’s inability to communicate and hostility towards each other that he may make statements to either parent in the hope he can please them, rather than because it is what he truly wants for himself.
I accept the father has a genuine commitment to JWR’s welfare and has wanted to take a more active role in decision making about him. I accept that his attitude to JWR’s learning difficulties has changed and that he has a genuine wish to understand his special needs and to understand how best he can help him. I am not persuaded the father has yet accepted the extent of the learning difficulties faced by JWR and the serious consequences that might flow for JWR if the problems are not addressed by both parents working consistently and cooperatively with each other and his treating professionals. I have decided that JWR will benefit if the father consults Ms VE and JWR’s other specialists and follows their recommendations. I have decided JWR is likely to benefit if his father makes positive efforts to affirm JWR’s need for remedial help and to assist JWR’s efforts to overcome his learning problems. I was satisfied on the father’s evidence that he will make these efforts. I have decided this can only happen if JWR spends time with his father during the school week.
I am persuaded that JWR should return home on Sunday afternoons after weekend contact. There is merit in the father’s case that to remain until Monday would avoid a changeover at the mother’s place. Even the mother’s counsel said the parties should see each other as little as possible. However, on balance, given Mr BC’s involvement at changeover instead of the mother, and given Ms VE’s assessment that children with JWR’s lack of organisational skills are generally better off starting the school week from their home base, I have decided that it is in JWR’s best interests to return home from contact on Sunday afternoons.

Telephone contact

The father sought an order that he telephone JWR every evening. In oral evidence he said he would agree to an order for telephone contact twice each week, if the court ordered weeknight contact. He would agree to any two nights which suited JWR and the mother. The mother asked that telephone contact continue as it has been, twice in the non-contact week and once in the contact week. I have decided that JWR should have regular telephone contact with his father and that the times proposed by the mother are reasonable. I have decided a window of 30 minutes is adequate and the least disruptive for the mother’s family. Should JWR wish to speak to his father at other times, as long as those times are reasonable, the mother should facilitate him doing so.
There is no dispute that JWR loves both his parents and has a strong and substantial attachment to them both. However, there are obvious problems at present which urgently need to be addressed. The parties’ present approach is not working for JWR. The mother and Ms VE both said JWR’s work had deteriorated, that he was currently distracted and unfocussed when in a learning situation. Ms VE said JWR was struggling to manage his parent’s hostility towards each other. The mother attributed the deterioration solely to the father’s conduct. I am not persuaded that is the case. I accept Ms VE’s evidence that JWR’s attitude to his work is at least in part attributable to the high degree of conflict between his parents which he has witnessed over a long period and which is continuing.
I have decided both parties are reluctant to take responsibility for current difficulties between them, preferring to blame the other. I have concluded the father has a tendency to find fault with the mother rather than addressing issues himself. The father paints the mother as obstructive and uncooperative and as largely responsible for his exclusion from JWR’s life. The father has doubted much of what the mother has told him about JWR, rather than considering how best he could help. The father has not taken opportunities offered to him by the mother to learn more about JWR’s condition. The father has at times behaved in a demeaning manner towards the mother without considering the ramifications for JWR. I have decided the destructive dynamic between the parties has led to the father’s perception that most of his problems with JWR are the fault of the mother rather than acknowledging the role he has played. I accept the mother’s evidence that the father has largely to date, not been supportive of her efforts to help JWR with his learning difficulties and has in fact taken steps at times to undermine those efforts.
The mother on the other hand, has not consulted the father about significant welfare issues concerning JWR. The mother has provided the father with information from time to time, but always after the event. She has made unilateral decisions in relation to consulting various professionals. She enrolled JWR in football against the express wishes of the father that he not play football. She has not given the father an opportunity to put his position before the decision is taken. Because she has not involved the father in decision-making about JWR’s health and educational problems, the father has felt out of the loop and has at times been reluctant to accept what he has then been told by the mother. His responses in turn have provided the mother with additional reasons to distrust the father. The mother was highly critical of the father. It was put to the father that he was regularly late getting JWR to football. The father denied this. The mother’s husband supported her view, yet conceded he had only been able to attend about 20% of Saturday games in 2004 because of work commitments, so could not have known what time the father arrived. The father gave evidence of attending JWR’s football games on non-contact weekends despite being given no information about the schedule for games on those weekends. The mother gave the father no credit for supporting JWR’s involvement in football.
Both parties have alleged the other has behaved insensitively towards the other, the mother asking JWR to refer to his father as “GE”, rather than “Dad”, the father calling the mother “sicko” or “crazy”, the mother refusing the father time with JWR on Father’s Day. Whatever the truth or otherwise of these allegations, I have decided both parties have allowed their frustration and anger towards each other to cloud their perception of what is best for JWR. I have decided it is imperative the parties improve the dynamic between them as a matter of urgency and have therefore ordered them to attend a post separation parenting program with Unifam. It is hoped they can learn to understand the importance of putting JWR’s needs ahead of their own and learn ways to improve their interpersonal relationship for JWR’s sake.
I am satisfied that the orders I have made are in the best interests of JWR.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of Sexton FM.

Associate: Collette McFawn

Date: 16 February 2005