Gilkes & Montague
[2009] FMCAfam 5
•7 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GILKES & MONTAGUE | [2009] FMCAfam 5 |
| FAMILY LAW – Parenting – equal time or substantial time care – choice of schools – effect of travelling to school. |
| Family Law Act 1975, ss.60CA , 60CC, 60CC(2), 60CC(3), 60CC(4), 61DA, 64B, 65DAA, 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5) |
| In the Marriage of Hall (1979) 5 Fam LR 609 Re G: Children’s Schooling (2000) 26 Fam LR 143 |
| Applicant: | MR GILKES |
| Respondent: | MS MONTAGUE |
| File Number: | DGC 3725 of 2007 |
| Judgment of: | Monahan FM |
| Hearing date: | 22 December 2008 |
| Date of Last Submission: | 24 December 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 7 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mort |
| Solicitors for the Applicant: | Ryan Carlisle Thomas |
| Counsel for the Respondent: | Mr Jackson |
| Solicitors for the Respondent: | Victoria Legal Aid |
ORDERS
All previous parenting orders and injunctions relating to the parties and the child [B] born in 2004 (“the child”) be discharged.
The parties have equal shared parental responsibility for the parenting of the child.
The child live with the Father from 8 April 2009 until 4.30 pm 10 April 2009 and thereafter in 2009 in a three-week cycle as follows:
(a)In the first week, from the conclusion of school on Friday (being Friday 1 May 2009) immediately following the commencement of the second school term in 2009 to the commencement of school Monday and each third week thereafter;
(b)In the second week, from the conclusion of school on Friday (being Friday 8 May 2009) to the commencement of school Monday and each third week thereafter;
(c)For one half of the school term holidays as agreed and in default of agreement the second half and alternate years thereafter, with the first half in 2010;
(d)For one half of the long summer school holidays in 2009/2010 at times to be agreed by the parties in writing and failing agreement each alternate week, such time to commence from the first week of the school holiday period;
(e)From 5.00 pm Christmas Eve 2009 until 5.00 pm Christmas Day 2009;
(f)On each of the child’s birthday, the Father’s birthday, the Father’s wife’s birthday and the child’s sisters [E] and [D]’s birthdays (and any other subsequent siblings’ birthdays) for a period of four hours if they fall on a non-school day at times to be agreed in writing and failing agreement from 11.00 am until 3.00 pm and for a period of three hours if they fall on a school day at times to be agreed in writing and failing agreement from the conclusion of school until 6.30 pm;
(g)On Father’s Day from the conclusion of school on the Friday immediately preceding Father’s Day until the commencement of school on the Monday immediately following Father’s Day; and
(h)As otherwise agreed between the parties in writing.
The child live with the Father from January 2010 as follows:
(a)From the conclusion of school on Friday until the commencement of school the following Friday and each alternate week thereafter pursuant to a weekabout arrangement; save that if the child does not attend school on the Friday due to illness or a curriculum day, then changeover shall occur at 4.30 pm on the Friday;
(b)For one half of all school term holidays to be agreed by the parties in writing and failing agreement for the second half on 2009 and the first half in 2010 and alternate years thereafter;
(ba) as per 3(d) herein from 2010/2011 and each year thereafter;
(c)From 5.00 pm Christmas Day until 5.00 pm Boxing Day in 2010 and each alternate year thereafter;
(d)From 5.00 pm Christmas Eve until 5.00 pm Christmas Day in 2011 and each alternate year thereafter;
(e)On each of the child’s birthday, the Father’s birthday, the Father’s wife’s birthday and the child’s sisters [E] and [D]’s birthdays (and any other subsequent siblings’ birthdays) (if the child is not ordinarily living with the Husband) for a period of four hours if they fall on a non-school day at times to be agreed in writing and failing agreement from 11.00am until 3.00pm. and for a period of three hours if they fall on a school day at times to be agreed in writing and failing agreement from the conclusion of school until 6.30 pm;
(f)On Father’s Day from the conclusion of school on the Friday immediately preceding Father’s Day until the commencement of school on the Monday immediately following Father’s Day; and
(g)As otherwise agreed between the parties in writing.
The child live with the Mother at all other times.
If Mother’s Day falls on a weekend when the child would not otherwise be living with the Mother, the Father’s time is suspended from the conclusion of school on the Friday immediately preceding Mother’s Day until the commencement of school on the Monday immediately following Mother’s Day.
If the child’s birthday, the Mother’s birthday or any partner of the Mother with whom the Mother resides with or her brother [G]’s birthday (and any other subsequent siblings’ birthdays) fall on days when the child would not otherwise be living with the Mother, the Father’s time is suspended for a period of four hours if they fall on a non-school day at times to be agreed in writing and failing agreement from 11.00am until 3.00pm and for a period of three hours if they fall on a school day at times to be agreed in writing and failing agreement from the conclusion of school until 6.30 pm.
Unless otherwise agreed by the parties in writing or specified in these Orders, all non-school changeovers are to occur at McDonald’s Restaurant in [M], with the Father to collect and deliver the child at the commencement and conclusion of his time with her.
Each of the Mother and Father have reasonable telephone, SMS, email and other electronic communication with the child during times she is living with the other.
The child is at liberty to telephone, SMS, email and otherwise communicate electronically with each of the Mother and Father at any reasonable time.
The child continue to attend [Y] School until the conclusion of the 2009 school year.
The Mother and Father do all acts and things and sign all necessary documents to enrol the child to commence Year One in January 2010 at [S] School in [W] (“[S] School”), such enrolment to be conditional upon the Father paying all school fees and directly related charges associated with the child’s attendance at [S] School, including but not limited to the cost of travel by the school bus from the bus stop near the Mother’s home in [Y] to the school in the weeks that the child lives with the Mother.
Each party continue to utilise the communication book for the specific purpose of communicating the needs of the child to be exchanged at changeover.
That each party forthwith notify the other of any major illness or injury sustained by the child whilst in the other’s care and authorise the child’s treating health professionals to provide the other with information as requested by each of the parties.
Each party keep the other advised of their respective phone numbers and residential addresses and notify the other in writing of any change thereto at least seven days prior to such change occurring.
The parties are at liberty to attend any school, sporting or extracurricular event that parents are normally entitled to attend.
Neither party enrol the child in any extra-curricular activities which have the potential of interfering with the other parent’s time with the child without first consulting the other parent.
Each of the parties be and are hereby restrained, by themselves, their servants and/or agents from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the child.
In the event that there is a significant deterioration in the child’s behaviour or is not progressing well at school, the parties attend upon a counsellor as agreed between them or failing agreement the parties are to attend upon Mr Vincent Papaleo, with the costs of attendance to be borne by the Father.
In the event the parties are unable to reach agreement on matters pertaining to the child’s long-term care, welfare and development, then the parties are to attend and participate in family dispute resolution to make a genuine effort to resolve such issue, with the costs of such dispute resolution (if any) be equally shared between the parties.
All extant applications be otherwise dismissed and the matter be removed from the list of cases pending resolution as maintained by the Court.
AND THE COURT NOTES THAT:
A.In these Orders, a requirement that notice be given in writing can be adequately satisfied by the sending of a text message, note in the communication book, or email.
B.The school fees and school bus costs associated with the child’s attendance at [S] School are the responsibility of the Father and are not credited as a non-agency payment for the purposes of child support.
C.The term “directly related charges” pursuant to paragraph 13 herein does not include extra-curricular activities that are not mutually agreed upon by both parties.
D.In the event that the Father’s financial circumstances are not able to meet the costs of the child’s attendance at [S] School, the parties would be required to agree on an appropriate alternative school and failing agreement a government school in the [M] area would be most beneficial to the child.
E.The parties agree that if the child shall be in the Mother’s care for the weekend commencing Friday 16 October 2009 and the Father shall have make up time for the weekend commencing 23 October 2009.
F.The parties intend to suspend the weekend cycle pursuant to paragraphs 3a) and 3b) herein during the school holiday period and to resume the said cycle on resumption of the school term as of the holiday period had not intervened.
G.Pursuant to s.65DA(2) and s.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 the 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.
IT IS NOTED that publication of this judgment under the pseudonym Gilkes & Montague is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 3725 of 2007
| MR GILKES |
Applicant
And
| MS MONTAGUE |
Respondent
REASONS FOR JUDGMENT
Background
The applicant father was born in 1973 and is currently aged 35 years. The respondent mother was born in 1982 and at the time of the hearing was aged 26 years.
The parties commenced cohabitation on or about 11 August 2002 and there is one child of their relationship, namely [B] born in 2004. The parties separated on or about 25 August 2005.
Following separation, the father left the house he shared with the mother at [N] and moved to a rented room in [F] (where he stayed for approximately 5 months). On 16 December 2005 the mother and child moved to [Y]. In January 2006 the father returned to the former home he shared with the mother and their child in [N].
On 21 January 2007, the father married Ms G. Their child, namely [D] was born in 2007. Ms G has a child from a previous relationship, namely [E], currently aged 6 years.
In May 2007 the mother married Mr L. In August 2007, their child [G] was born.
On 10 September 2007, the father issued proceedings in the Federal Magistrates Court of Australia at Dandenong seeking parenting orders including an order that [B] live with him. This application was opposed by the mother. On 16 October 2007, Registrar Riddiford made orders with the consent of the parties. The orders included that the parties have equal shared parental responsibility, that the child live with the mother and that the child spend time and communicate with the father on alternate weekends from 5.30 pm Friday to 5.30 pm on Sunday, one half of all school holiday periods and other special occasions. The orders also allowed for specified telephone contact, the preparation of a family report and for the appointment of an Independent Children’s Lawyer.
The parties attended upon Ms Joy Slattery for the preparation of a family report on 8 April 2008. This report is discussed shortly. On
27 June 2008the matter came before His Honour Federal Magistrate Phipps in Dandenong. After considering the evidence His Honour made the following orders:
“THE COURT ORDERS:
1. THAT the parents have equal shared parental responsibility for the child of the relationship namely [B] born in 2004.
2. THAT until such time as the father relocates to within 15 kilometres of [W] the child live with him at the following times:
a) Each alternate weekend from 5:30pm Friday until 5:30pm Sunday during school terms, commencing the first weekend of the third school term 2008;
b) For half of all school holidays at times and on dates to be agreed but in default of agreement the first half in even numbered years commencing 10:00am on the first Saturday of the holidays and the second half in odd numbered years commencing 10:00am the second Saturday of the holidays;
c) On a week about basis during the long summer holidays;
d) Changeovers are to occur at [W];
e) At further and other times as can be agreed between the parties.
3.THAT upon the father relocating to within 15 kilometres of [W] the child lives with him at the following times:
a) In the first week from 5:30pm Thursday (or the conclusion of school upon the child commencing school) until 8:30am Monday (or Tuesday if Monday is a non school day upon the child commencing school);
b) In the second week from 5:30pm Thursday (or the conclusion of school upon the child commencing school) until 8:30am Friday (or the commencement of school);
c) For half of all school holidays at times and on dates to be agreed but in default of agreement the first half in even numbered years commencing 10:00am on the first Saturday of the holidays and the second half in odd numbered years commencing 10:00am the second Saturday of the holidays;
d) On a week about basis during the long summer holidays;
e) Changeovers are to occur at [M];
f) At further and other such times as may be agreed between the parties.
4. THAT the child [B] born in 2004 live with the mother at all other times save and except:
a) From 5:00pm Christmas Day until 5:00pm Boxing Day in 2008 and each alternate year thereafter;
b) From 5:00pm Christmas Eve until 5:00pm in 2009 and each alternate year thereafter;
c) From 10:00am to 5:00pm Father’s Day each year;
d) For a period of 4 hours on the child’s Birthday and the father’s birthday each year;
e) As may be otherwise agreed between the parties.
5. THAT the father’s time with the said child shall be suspended:
a) From 5:00pm Christmas Day until 5:00pm Boxing Day in 2009 and each alternate year thereafter;
b) From 5:00pm Christmas Eve until 5:00pm Christmas Day in 2008 and each alternate year thereafter;
c) From 10:00am to 5:00pm on Mother’s Day each year;
d) For a period of 4 hours on the child’s Birthday and the mother’s birthday each year;
e) As may be otherwise agreed between the parties.
6. THAT the child shall attend [Y] School for her Primary School education unless otherwise agreed between the parties, such agreement to be evidenced in writing.
7. THAT each parent be at liberty to attend any school, sporting and extra curricular events parents are normally permitted to attend.
8. THAT the parents are to keep each other informed of:
a) Their current telephone numbers and residential addresses and notify the other of any change within 30 days;
b) Any prescribed medication and treatment regime, accident, illness, injury or hospitalisation suffered by the child;
c) Any medical practitioner attended by the child and each party is to authorise such practitioner to liaise with the other parent.
9. THAT the parties are hereby restrained from causing or permitting the child to refer to any other person other than the parents as Mum or Dad.
10. THAT the parties, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the said child, and from permitting any other person so to do.
11. THAT the parties shall keep and maintain a communication book.
12. THAT otherwise all extant applications are dismissed.
13. THAT pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for each party to employ an advocate.
AND THE COURT NOTES:
14. THAT pursuant to S.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.”
On 25 July 2008 the father filed a Notice of Appeal in the Family Court of Australia seeking that the orders made by Federal Magistrate Phipps be set aside and the matter be remitted for rehearing.
On 1 October 2008 the matter came before His Honour Justice Mushin who made various directions for the hearing of the appeal.
On 4 October 2008 the father, his wife Ms G and their children [E] and [D] relocated from Melbourne to [U]. At this time the father and mother commenced a “5/9” caring arrangement for [B] each fortnight. This involved [B] living with the father on Thursday night in week one and on Thursday night through Sunday night in week two.
On 11 November 2008 the mother confirmed through her solicitors to the father’s solicitors that she had separated from Mr L.
On 19 November 2008 the husband’s appeal was heard by His Honour Justice Mushin. By consent His Honour made various orders that included allowing the father’s appeal against the orders made by Federal Magistrate Phipps on 27 June 2008.
On 15 December 2008 the matter was listed for mention before myself whereupon certain directions were made.
The matter came before me for hearing over three days commencing
22 December 2008.
Proposals of the parties
In his case outline filed on 18 December 2008 the father proposed the following:
“1. That the child live with the Mother and Father on a weekabout basis.
2. That the child attend the [W] campus of [S] School as from 2009.
3. That the Father pay the tuition fees and the school bus fees.”
In her “minute of orders proposed by the mother” the mother proposed:
1. That all previous Orders herein be discharged.
2. That the parents have equal shared parental responsibility for the child of the relationship:
FULL NAME DATE OF BIRTH
[B] 19/01/2004
(“the child’).
3. That the child live with the Father:
(a) In the first week of school term from the conclusion of school on Thursday until the commencement of school the following Monday (or Tuesday if Monday is a nonschool day) and alternate weeks thereafter.
(b) In the second week of school term from the conclusion of school on Thursday until the commencement of school on Friday and alternate weeks thereafter.
(c) For one-half of all term school holidays as may be agreed between the parties, but in default of agreement:
(i) The first half in even numbered years commencing at 10:00am on the first Saturday of the holidays and concluding at 10:00am on the second Saturday of such holidays, and alternate years thereafter.
(ii) The second half in odd numbered years commencing at 10:00am on the second Saturday of the holidays and concluding at 10:00am on the third Saturday of such holidays, and alternate years thereafter.
(d) For one-half of the long Summer holidays as may be agreed between the parties, but in default of agreement on a week about basis (the Mother having the first week).
(e) As may otherwise be agreed between the parties from time to time!
4. That the child live with the Mother at all other times save and except:
(a) From 5:00pm 25 December 2008 until 5:00pm 26 December 2008 and alternate years thereafter.
(b) From 5:00pm 24 December 2009 until 5:00pm 25 December 2009 and alternate years thereafter.
(c) From 10:00am to 5:00pm on Father’s Day in each year.
(d) For a period of 2 hours if a school day, and 4 hours on a nonschool day on each of:
(i) 19 January; and
(ii) 11 March;
if the child is not otherwise with the Father.
(e) As may otherwise be agreed between the parties from time to time.
5. That the Father’s time with the child be suspended:
(a) From 5:00pm on 24 December 2008 until 5:00pm 25 December 2008 and
alternate years thereafter.
(b) From 5:00pm 25 December 2009 until 5:00pm 26 December 2009 and alternate years thereafter.
(c) From 10:00am until 5:00pm on Mother’s Day in each year.
(d) For a period of 2 hours if a school day, or 4 hours if a nonschool day on each of:
(i) 19 January; and
(ii) 11 March;
if the child is not otherwise with the Mother.
6. That all changeovers during school term occur at the [Y] School save that
(a) If the Father provides the Mother with not less than 24 hours notice that he is unable to arrange the collection of the child from her school then the child shall be collected from the Mother’s home.
(b) That if the Father provides the Mother with not less than 24 hours notice that he is unable to deliver the child to her school at the commencement of the school day then he shall deliver the child to the Mother’s home by 6:00pm the preceding evening.
7. That all changeovers during holidays shall occur at [M] at such place as may be agreed, but in default of agreement at the McDonald’s Family Restaurant.
8. That the child attend [Y] School for her primary school education unless otherwise agreed in writing between the parties.
9. That each party be at liberty to attend any school, sporting or extracurricular event parents are normally permitted to attend.
10. That the parents keep each other informed of:
(a) Their current telephone number and residential address, and notify the other of any change within 30 days.
(b) Any prescribed medication and treatment regime, accident, illness, injury or hospitalisation suffered by the child.
(c) Any medical practitioner attended by the child and each party is to authorise such practitioner to liaise with the other parent.
11. That all extant applications be otherwise dismissed.
12. That pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 the Court certifies that it was reasonable for each party to employ an advocate.
AND THE COURT NOTES
13. Pursuant to s.65DA(2) and s.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 the 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.”
In their final submissions, both parties indicated an alternate proposal to that initially sought. In his closing address on behalf of the Respondent, Mr Jackson stated as follows:
“As I understand the husband's outline of case and his case as put by him in the witness box and by his counsel, the father's preferred option is that there should be a weekabout arrangement, with [B] to attend at [S] School [referring to [S] School]. His fall-back position is that there should be a nine-five arrangement, with [B] to attend at [S] School. The mother's preferred option is a nine-five, as is currently the case, with [B] attending [Y] [referring to [Y] School]. Her fall-back position is two out of three weekends to the father and increased holidays such as would then equate to a similar amount of time as a nine-five but again with [B] to attend at [Y]…Both parties are asserting that there should be equal shared parental responsibility for this child.
In his closing address on behalf of the father, Mr Mort stated:
“[the father’s] position clearly in his application, amended application, is seven-seven, or fall-back position nine-five with the child going to [S] School…
However, after hearing evidence and giving further consideration to the matter, he gives your Honour another option. The other option is this: next year when the child is at prep, leave her at [Y]. Let her settle in for the prep year and overcome the tiredness that the mother feels that she might suffer from and overcome the settling-in period, particularly if there has been total instability in the household as a result of the breakdown of her marriage. Let her settle in. The husband says, "I don't like it, another sacrifice, but I'll take two out of every three weekends. I'll also take the first term holidays and the third term holidays in toto. We can share the remainder of the holidays, the September and the long summer vacation. I don't like that, but I'll wear it. I'll wear it for next year, and then the following year the child can go to [S] School.”
Family Report
The family consultant, Joy Slattery, and her family report dated
24 April 2008was the subject of cross examination by both parties in these current proceedings. Given the early listing of the second defended hearing following the husband’s successful appeal there was no time for any updated family report to be completed, which is unfortunate. As previously indicated, Ms Slattery conducted her interviews with the father, the mother, the father’s wife and the mother’s husband (all together with their children) on 8 April 2008.
At the time these interviews were conducted the mother was still living with her husband.
At paragraph 12 of the report, Ms Slattery identified the then issues in dispute:
“The major dispute is whether [B] continues to live with
Ms Montague full time or whether she lives with Mr Gilkes full time or whether [B] lives in a shared week about arrangement with Mr Gilkes and Ms Montague.”In other words, Ms Slattery’s report only considered the original proposals sought by the parties.
At paragraphs 13 and 14 of the report, Ms Slattery identified two further issues that were in contention; namely a change to [B]’s family name and which school [B] should attend from the commencement of 2009. It would appear that at one point in these proceedings there was a desire by the mother to change [B]’s family name to “Lenton-Gilkes”. This is no longer an issue given that the mother is now separated from her husband. In contrast, the issue of the child’s school remains a live issue in these proceedings.
Ms Slattery describes her interview with the father, his wife, her daughter [E] and their daughter [D] in paragraphs 18 through 20 of her report. She describes her observation of [B] with those parties in paragraphs 21 through 23. No comments of any concern were made.
Ms Slattery describes her interview with the mother in paragraphs
24 through 26 of her report. She describes her observations with [B], the mother, with Mr L and their son [G] in paragraphs 27 through 28. Similarly, Ms Slattery makes no comments of any concern relevant to these proceedings.
Ms Slattery provides her evaluation in paragraphs 33 through 42 of her report. In paragraph 34 of her report she states:
“34.From my observations, [B] appeared to have warm and close relationships with Ms Montague and with Mr Gilkes. [B] also seemed to have developed warm and accepting relationships with Ms G and with Mr L. [B] appeared to have a warm and accepting relationship with [E]. [B] has a baby brother and a baby sister but the nature of her relationships with both babies is not yet apparent. [B] will be going through a process of developing sibling attachments with both babies but this process will take about three or more years. During the observation sessions with both babies [B] did not particularly interact with either of them but this is not surprising given the babies’ ages as well as [B]’s age. No concerns arose from the observation sessions about the nature of the relationships [B] has with the four adults.”
At paragraph 37 of the report, Ms Slattery states:
“37. It is my view that Ms Montague and Mr Gilkes still have unresolved issues from their relationship and separation so it may be helpful if they attended individual counselling to assist them to let go of these issues. At the current time it is these unresolved issues that are in the way of them being able to develop an appropriate parenting relationship for [B] and will continue to prevent them from being able to make joint decisions about [B].”
At paragraph 38 of her report, Ms Slattery expresses some concerns about an aspect of the mother’s history of facilitating [B] spending time with the father. The child support issue referred in paragraph 38 was not the subject of any evidence in the proceedings before the Court.
At paragraph 39 of the report, Ms Slattery states:
“39. It is my view that [B] does benefit from having an ongoing relationship with both Ms Montague and Mr Gilkes. Both
Ms Montague and Mr Gilkes are significant people in [B]’s life and both provide different benefits to [B]. It is my view that
Ms Montague and Mr Gilkes are able to meet the intellectual needs of [B]. While they remain locked in conflict then they are not taking responsibility for [B]’s emotional needs.”
At paragraph 40 of the report, Ms Slattery clearly cautions against any shared care arrangement, stating:
“40. It is my view that a major change in [B]’s life at the current time [i.e. April 2008] would not be in her best interest particularly as she would not have two parents who are able to communicate and make joint decisions for her. It is my view that a change in [B]’s living arrangements would not change much for [B] as far as [B] having to continue to move between two parents in conflict. It may provide some benefits for [B] but these benefits would be outweighed by [B] continuing to suffer emotionally as a result of two parents in conflict. The intellectual development of a child does not provide them with appropriate emotional tools to manage life if the child’s emotional development remains in jeopardy. It is my view that at the current time, Mr Gilkes has little say in [B]’s life and this could change as it would benefit [B] for Mr Gilkes to have a more active role in her life and in her education once she starts school. It is my view that the time [B] spends with Mr Gilkes should be increased. For example, [B] could spend time with Mr Gilkes in a two week cycle, in the first week from Thursday through to Monday morning and in the second week on Thursday overnight but for this to slowly increase through 2008 so that by the time [B] starts school this would be in place. This would mean that each fortnight [B] would spend time with Mr Gilkes for five nights and with Ms Montague for nine nights. This proposed arrangement would also require
Mr Gilkes to move to [W]. It is my view that if Ms Montague and Mr Gilkes are able to minimise their conflict then a shared care arrangement in the future may work well for [B] if Ms Montague and Mr Gilkes are living close enough. The only concern that arises if Mr Gilkes and his family move to [W] is that [E] may then have to change schools as she currently attends a private school in [R]. Mr Gilkes said that it may be an option to enrol [E] at [S] School in [W] so that she and [B] would then be at the same school (if [B] attends this school).”
At paragraph 41 of the report, Ms Slattery counsels against any change to [B]’s family name. As indicated previously, this was not a live issue in this current dispute.
At paragraph 42 of the report, Ms Slattery states that she does not believe that it is in [B]’s best interests to attend [S] School in [W] but rather she should attend the local school “with her friends from kindergarten”. She states:
“It becomes a philosophical argument about private school versus state school. Mr Gilkes believes that [B] would have more opportunities in life if she attended a private school and he is prepared to pay [B]’s school costs at this school.”
It is note worthy that Ms Slattery does not make any comment about the proximity of the school to the husband’s potential relocation. Consequently, and with respect, this particular issue is more than just a philosophical argument about private school versus state school.
Finally, Ms Slattery makes her recommendation in paragraphs 43 to 46 of her report and she states:
“43. It is recommended that [B] lives with Ms Montague but that this gradually changes over 2008 so that [B] then lives with
Ms Montague and Mr Gilkes in a shared care arrangement as mentioned below.
44. It is recommended that [B] spends time with Mr Gilkes on alternate weekends but this gradually increases to a two week cycle with [B] living with Mr Gilkes in week one from Thursday after school to Monday morning at the commencement of school and in week two on Thursday after school to the commencement of school Friday morning. The increase in times will depend on how Mr Gilkes is able to manage from where he currently lives. If this is not possible until the beginning of 2008, [the Court assumes she means “2009”] then it is recommended the current arrangements continue and the new recommended arrangements commence at the beginning of 2009 providing that Mr Gilkes does move closer to Ms Montague as he has proposed.
45. It is recommended that Ms Montague and Mr Gilkes attend a post separation parenting course and they specifically request assistance with how to use a communication book effectively and how to develop an appropriate parenting relationship.
46. It is recommended there be no name change for [B] and that [B] must be enrolled at kinder and school (in 2009) as [B].”
As indicated previously, Ms Slattery was not requested to provide an updated report given the early listing of this matter following the husband’s successful appeal arising from the first hearing. In her letter to Kon Kontaxis dated 20 May 2008 (the Independent Children’s Lawyer in the first proceedings), Ms Slattery seeks to clarify some aspects of her report (see exhibit “AF-22”). Ms Slattery clarifies that her proposal with respect to [B]’s time to be spent with the father would, in her view, represent a “substantial and significant time arrangement”. She goes on to describe the necessary requirements that would need to be in existence for a shared care arrangement; arrangements which she seems to indicate are not currently in place between the parties.
Evidence of the parties
Both parties provided the Court with affidavit and oral evidence.
Applicant father’s evidence
The following documents were relied upon by the father:
· The father’s amended application filed 20 June 2008
· Father’s affidavit sworn 19 June 2008 (“his first affidavit”)
· Affidavit of Ms G sworn 19 June 2008
· Father’s application in a case filed 4 December 2008
· Father’s affidavit sworn 12 December 2008 (“his second affidavit”)
· Father’s affidavit sworn 18 December 2008 (“his third affidavit”)
In his affidavit sworn 19 June 2008, the father provides details about his plans to move himself and his family closer to where [B] resides in order to facilitate either a shared care or a more substantial time care arrangement with the mother. In addition, he expresses his concerns about [B]’s future schooling and his reasons for wishing [B] to attend [S] School in 2009. Apart from asserting the alleged benefits that [B] may receive from being educated at [S] School, provision by that school of a dedicated school bus servicing [Y] would enable some of the travel issues associated with a shared care or substantial care arrangement to be resolved. At paragraph 43 of his first affidavit the father states:
“43. The school also provides a dedicated school bus which transports the children to and from school. In the event of a shared care arrangement, [B] could travel to [S] School from [Y] by catching the school bus at [Z] which is an eight minute drive (approximately) from Ms Montague’s home.
44. I have been advised by the school that there are 19 children in the junior school who live in the [M], [Z], [Y] area and five of these children use the school bus service.
45. The annual tuition fees at [S] School are $4,912 and the annual cost of the bus service from [Z] is $1,132. I am prepared to pay the tuition fees and bus fees to facilitate [B]’s attendance at the school.
46. Whilst [B] is living with me either Ms G or I will drive [E] and [B] to school. Once [D] is of school age, all three children will attend [S] School.
47. In the event that the Court was to order that [B] attend [Y] primary school I do not believe that a shared care arrangement would be workable. There is no dedicated school bus from [W] to [Y] and I do not believe it is safe for [B] to catch a public bus.
48. Whilst I could drive [B] on those days that I worked from home, Ms G could not drive [B] to [Y] and then drive [E] to [S] School in [W]. The collection of the two girls at the end of the school day would also pose a problem.”
In his affidavit sworn 12 November 2008, the father updates his residential details. In paragraph 7 of his second affidavit the father details his current accommodation in [U]:
“…The property fulfilled all our requirements. It is a four bedroom home with a separate downstairs study. This allows each of my children to have a separate bedroom. There is also a separate rumpus room for the children’s toys and games. The separate study allows me to efficiently work from home to a large extent. After speaking extensively with Ms G, we decided to move to this house in [U]. There was a significant impact on [E] having to move school, and also my drive to work is now significantly increased.”
At paragraph 10 of his second affidavit, the father states that [E] has now commenced her schooling at [S] School in [W].
At paragraphs 13 and 15 of his second affidavit he details his revised work arrangements which include working from home “between two to four days per week.”
At paragraphs 15 through to 21 of his second affidavit, the father details several problems which he asserts have arisen in relation to his care of [B] since his relocation to [W]. At paragraph 21 he states:
“It is clear to me that in the long term, if [B] attends school in [Y], it will be logistically impossible for us to commit to getting both [B] and [E] to the different schools on time. As such, if the appeal is unsuccessful and [B] subsequently attends school in [Y], my contact to her will be significantly reduced.”
At paragraph 24 of his second affidavit, the father asserts that the mother’s circumstances have significantly changed following confirmation of her separation from her husband. He states:
“…The mother’s separation is a real concern to me as I believe that it is appropriate that we are kept up to date with [B]’s living conditions and any change in circumstances. I am sure that this has been a stressful time for [B] to cope with the stresses of the separation of her mother and stepfather, and we should be notified of the event so that we can provide appropriate support to [B].”
In relation to telephone contact, the father states at paragraph 25 of his second affidavit:
“I further note that since the hearing on 27th June 2008, communication with [B] by phone has been extremely rare. I have called on many occasions on Tuesday and Thursday afternoons, however the mother does not answer the phone and has stated that I am not able to talk to [B] on Tuesday and Thursday evenings as there is no provision for telephone contact orders. Since June I have spoken to [B] by phone on only three occasions.”
In his third affidavit sworn and filed on 18 December 2008, the father replies to the mother’s affidavit sworn on 15 December 2008. At paragraph 4 of his third affidavit, the father acknowledges that should [B] be able to commence school at [S] School, it may be appropriate for a short period for the mother to drive [B] to school on the days that she resides with the mother. Consequently, the father indicated that he would offer to contribute to the mother’s petrol costs that would be associated with the mother’s travel which he later particularises in paragraph 25 as an offer to pay “$1,500.00 towards the cost of fuel associated with her driving [B] to and from school whilst she is in her care, to be paid quarterly.”
The father was cross examined by counsel for the mother, Mr Jackson. Early in the cross examination the father stated that if [B] was to go to school in [Y] in 2009, he and his family would continue to live in [U]. Mr Jackson explored this possibility by asking the father:
“Would you continue spending as much time as possible with [B]?”
“Yes.”
“If that were to be a nine-five arrangement, would you accept that arrangement?”
“I believe that if [B] was going to school at [Y] that I could not make - that a nine-five arrangement would not be practical and that we could not find any solution to make that work.”
“Why wouldn't it be practical?”
“Although I'm living in [U], my office is still in [Melbourne city]. I also work currently for a significant amount of time on a customer's site, which is in [the southern suburbs of Melbourne].”
The father was also cross examined about [B]’s schooling and the father was quite frank in his responses:
“If [B] were to go to school in [Y], what benefits do you see for her?
“I see some benefit in her, I guess, beginning school with people that she knows.”
“Where did she go to kindergarten?”
“She went to kindergarten at [Y].”
“Where did she go to playgroup?”
“I believe playgroup was [T] - no, sorry, I'll correct that. Playgroup was [Y] also.”
“Have you made any inquiries whether the children from the playgroup will be moving on to [Y] School?”
“I have not inquired that. I would assume that the majority of them would be.”
“And the same situation with the children that she went to kinder with?”
“Yes, correct.”
“How many children were in her kinder group?
From my visits there, I would estimate them to be 12 or 13 children that she attends kinder with.”
Later under cross examination, the father agreed that there may be “a slight benefit to [B] attending [Y]” but he saw no negative effect from that not occurring.
Later in cross examination, Mr Jackson asked the father:
“Are you aware of whether [Y] School encourages parents to come along and help out in the classroom?”
“I'm not aware of that but I have seen that at other schools.”
“Do you have a view as to whether or not that's beneficial to the students?”
“I have no doubt that that's beneficial for the students.”
“If [B] were to attend [Y] School her mother would be able to attend and help out, wouldn't she?”
“That's right.”
“It's not possible if she attends [S] School, realistically, is it?”
“I would disagree with that.”
“How far is it from [Y] to [S] School?”
“Approximately 30 minutes.”
“So a 30-minute trip there and back each day, you don't think that that's a problem?”
“While we were living in [C] and [E] was attending [H] School the drive time was a similar distance. The drive time it was slightly less. It was 20 to 25 minutes. But we didn't see that as a significant problem in relation to being able to attend and participate in [B]'s schooling. We saw that as a small price.”
“But of course it's a small price to you, earning some $3500 a week, as opposed to a small price for someone on a pension, isn't it?”
“Yes.”
“The mechanics of a single mum with a baby driving backwards and forwards between [Y] and [W] mean that it's simply not going to happen, is it? The money is not there?”
“I have offered to significantly contribute to the petrol costs that Ms Montague would incur in doing that driving, so I don't see that financially that there's an argument against doing that driving.”
Later Mr Jackson asked the father:
“What if [B] is at [Y]? Will you be participating in the classroom?”
“I would make every effort to do so, yes. Although it would be difficult on a regular basis, I'm sure that throughout the year I could attend to some activities irregularly.”
“But you have no doubt that if [B] is at [Y] her mother will be able to do all of those things each week?”
“I accept that.”
Later the father was cross examined about the mother’s parenting of the child and again the father was frank and forthright in his answers. The father was asked:
“Can you see anything beneficial about her mother's involvement with her?
“Yes, I can.”
“Is she a good parent?”
“Yes.”
“So you no longer believe that she is barely an adequate parent, which was your evidence last time? She's now a good parent, is she?”
“Yes.”
“Is she the adult with whom [B] has spent most of her life?”
“That is correct.”
“So she would be the adult who knows [B] the best?”
“That is correct.”
“So her opinion as to what she thinks is best for [B] is important, isn't it?”
“Yes, absolutely.”
“And she has the best insight of anybody, in terms of adults in [B]'s life. She knows the child best?”
“Yes.”
Later, Mr Jackson asked the father:
“You no longer think ill of Mrs Lenton? She's now a person you respect, is she?”
“I don't believe I've ever gone out of my way to express ill will towards…”
“Do you respect her?”
“I respect the fact that she has brought up [B] well.”
“Do you respect her as a person?”
“Yes, I do.”
“Do you value her opinions?”
“Yes, I do.”
“But as far as [B] is concerned, you think she hasn't [B]'s best interests in mind by opposing your proposal?”
“Correct.”
“You think she's being selfish, do you?”
“I don't think that she sees any benefit in [B] spending more time with myself and my family…”
Later the father was cross examined in relation to the current “9/5 arrangement” (i.e. [B] living with the father 5 nights per fortnight) that had been recently put in place. While the father acknowledged that the current arrangement was in keeping with Ms Slattery’s report, he clearly asserted that he did not believe that the arrangement was in [B]’s best interests. The father stated that:
“…Mrs Slattery was not given enough time to properly assess the family environments that existed and exist today, as far as her ability to see what must have been difficulties in the relationship between Ms Montague and Mr L, and therefore assess the stability of the homes at each location. I also think in the - I don't think she was clear in the family report, and in court in June she was of the opinion that I was being petulant and only putting forward solutions - "my way or the highway" I think was the quote, and I was being petulant on that. I think that that is not correct.”
Later under cross examination the father was specifically asked by
Mr Jackson about whether he had made any other enquires about other schools that may be suitable for [B] (i.e. other than [S] School). The father stated:
“Initially the discussion around [S] School came up through conversation with Ms Montague, some years ago. That was submitted by her as a possible way to make a shared care work. We've researched and we've spoken to a lot of people who live in the area and the reputation of [S] School is outstanding.”
“Why didn't you make any other inquiries?”
“We found what we had believed to be a workable valid solution.”
“For you?”
“For all parties.”
“But it's not for the mother, is it, so it's not for all parties?”
“I would claim that it is a workable solution for
Ms Montague.”Following his cross examination, the Court asked the father two specific questions. The first question related to whether his offer to pay the mother $1,500.00 to assist her with the expenses associated with driving [B] to and from [S] School and whether this would be an additional payment on top of his current child support payments.
In response, counsel for the father, Mr Mort replied:
“Yes, and your Honour would probably need to note in the orders that in terms of what he's paying, that the father not claim any such amounts as a non-agency payment, just to cover that situation.”
The second question related to the father’s annual leave and other holiday entitlements. This question was re-stated by Mr Mort to the father who replied that he was entitled to:
“20 working days annual leave per year.”
Thereafter, the father detailed other leave entitlements he may be entitled to including long service leave and parental leave. The father indicated that as he had only been working with his current employer for just under two years, he did not know whether he had accrued any long service leave. He also indicated that he was able to access parental leave on past occasions in circumstances when his wife had been ill.
The father’s wife – Ms G
The father’s wife, Ms G, also gave evidence on behalf of the father.
In her affidavit sworn 19 June 2008, Ms G details the parenting arrangements for her child [E] (born in 2002) from a previous relationship, and their child [D] (born in 2007). In addition, she describes two specific issues by way of comment on the mother’s parenting of [B]:
“22. I have observed that Ms Montague deliberately sends [B] in shabby and ill-fitting clothes. She always takes [B]’s shoes, jackets and hat off before handing her over to Mr Gilkes. We have now bought [B] a change of clothes including a pair of sneakers. Ms Montague has since made note in [B]’s communication book that we need to buy her new shoes to wear as [B] says that they now hurt her feet.
23. On two occasions in recent months, I have been disturbed by statements [B] has made that she was making potions “to kill Daddy and Ms G” and that “mummy” has told her to do it.”
Under cross examination by Mr Jackson for the wife, Ms G acknowledged her role in returning [B] to [Y] following the child spending time with the father. In addition, Ms G stated that whilst the father has some role in her child [E]’s upbringing, his involvement with her school activities is minimal due to his employment obligations and:
“Because it was [E]'s year in prep and I wanted to have most of the input with her reading as one of the mothers at the school.”
Mr Jackson then questioned Ms G on the assumption that [B] was attending [S] School and travelling to and from that school from [Y] by bus:
“…as a mother do you see any benefit in a five year old going to prep with all of her circle of friends?”
“I don't believe that's an issue.”
“Pardon?”
“I don't believe that would be an issue for [B].”
“So you don't think that's important at all?
“No.”
“Do you think it's important that she should go to school close to her home if possible?”
“No.”
“Do you think it's important that she should be able to spend time with her local friends after school?”
“Yes.”
“If she doesn't get from school on the bus till after that play time is passed, that's just bad luck, is it?”
“No.”
“So how do you then accommodate that?”
“Given a five-nine or a seven-seven arrangement, [B] would have plenty of time to play with her friends at [Y].”
“So she wouldn't be able to play after school but she could play when she got off the school bus?”
“No, not every day.”
“Is that what you're saying?”
“Not every day, no.”
“So what is wrong with the situation where [B] attends school at [Y]?”
“It's impossible for myself to get two children in two different regions to school on time, given that Mr Gilkes won't be home every designated Thursday, Friday and Monday, it would be impossible for me to get both children to school.”
Mr Jackson also questioned Ms G in relation to the mother’s alternate proposal (i.e. [B] spending two out of every three weekends with the father):
“What is wrong with a situation then if one reconfigures the times so that [B] comes to your home two weekends out of three, during school term - Friday, and you've said there's no problem with collection on Friday, is there?
“Correct.”
“Stays with you until Monday morning, so you have a three-night block, two weekends out of three?”
“Mm'hm.”
“If there's a problem on the Monday morning, you've said that you believe the level of communication is such that you can rejig either another changeover point or a Sunday night?”
“Yes.”
“What is wrong with that? Plus some additional time during school holidays to bring it back to the same number of 5 days?”
“I'm not actually aware of this proposal.”
“I'm now putting it to you. What's wrong with it?”
“Possibly on a Monday morning [B] would be required to get up extremely early, unless the mother was prepared to meet in [M].”
“Okay. So assuming for the moment she's prepared to meet in [M], what's wrong with the proposal?”
“I wouldn't see a problem.”
Ms G was re-examined by Mr Mort for the father in relation to the mother’s alternate proposal:
“What do you see as the advantages to the child in terms of a two out of every three weekend proposal, as opposed to a weekabout or a nine-five split?”
“She would have as much time in our home as if it was a five-nine. However, I think the level of care is a little bit different.”
“Why do you say that?”
“Because there's no involvement in school.”
“What impact do you say that that would have on the relationship between [B] and her father?”
“I think it's a huge impact…I believe that he would be able to involve himself in [B]'s schooling activities after school, such as reading and homework and things like that. Whereas if he was to look after her on a weekend basis, he would be restricted with that.
…
On a two out of three weekends, you don't see that there's any disadvantages in terms of their relationship, as opposed to a nine-five?”
“I don't think Mr Gilkes and [B] would love one another less given the weekend or the week.”
The respondent mother’s evidence
In her Response, the mother relied upon:
· Her affidavit affirmed 11 October 2007 (“her first affidavit”)
· Her affidavit affirmed 20 June 2008 (“her second affidavit”)
· Her affidavit affirmed 12 December 2008 (“her third affidavit”).
In her first affidavit sworn 11 October 2007, the mother describes at paragraph 7(b) her decision to move to her current residence at [Y] on 16 December 2005:
“…Although Mr Gilkes preferred that I live close to his residence, he did not object when [B] and I moved to [Y]. We have been living here for almost 3 years now. The reasons for moving to [Y] are as follows:
I. It is close to my family and friends. I have a lot of support from my parents.
II. The house belonged to my late grandfather. I am renting this property with a view to purchasing it.”
Indeed, in subsequent evidence the mother stated that she had entered into a long term contract to purchase her current residence from her father.
In relation to [B]’s proposed schooling, the mother states at paragraph 12 (b) of her first affidavit:
“Mr Gilkes wants [B] to attend [S] School in [W], which is approximately 1 hours drive from where I live. I did not agree that [B] would be enrolled in [S] School, [W]. There is no reason for her to attend [S] School. I cannot afford to send [B] to
[S] School and the long distance travelling will be hard on [B]. There is a school bus and this will increase the travel time.
[Y] School is situated in the town that we live in and is less than 5 minutes walking distance from our home. I am aware that most of [B]’s friend’s from her kinder and playgroup, will be attending [Y] School. I also believe that the local primary school will allow [B] to establish friendships with other children who live in the town and surrounding areas. This will also boost her confidence and self esteem.”
In relation to [B]’s relationship with herself, her husband and their child [G], the mother states at paragraph 28 of her first affidavit:
“For reasons stated in my Affidavit, I believe that it is in [B]’s best interest to live with me, Mr L and [G], in our current home. It is a happy, stable and secure environment for her. Any changes to her living arrangements would be disruptive and not be beneficial to her…”
In her second affidavit sworn 20 June 2008, the mother states at paragraph 9 that she agrees with the recommendations made by
Ms Slattery in her family report “…whereby [B] would spend 5 nights per fortnight with Mr Gilkes.”
She elaborates upon this at paragraph 15 of her second affidavit:
“I believe that the “5 nights per fortnight”, arrangement should remain in place until June 2009 and the time be increased gradually in the next 6 months to work towards a shared care arrangement on a week about basis, provided that such an arrangement may work. Ms Slattery acknowledges that there is a high level of conflict and communication difficulties between us. We have a communication book which is not working well. At present, we do not live in close proximity. Mr Gilkes lives in [C] and I live in [Y]. The distance between the two homes is approximately 118.2 kms and depending on traffic, it could take approximately 1 hour and 21 minutes in travel time. I also believe that at [B]’s age, a shared care arrangement would be disruptive.”
At paragraph 18 of her second affidavit the mother states that she believes “that it is in [B]’s best interest for Mr Gilkes and I to develop a parenting relationship.” She then goes on to reveal that she has commenced counselling sessions with Mr H, a psychologist at [T] and was making arrangements with Relationships Australia to attend a parenting course. In subsequent cross examination referred to shortly, it is questionable whether the need for this counselling was related to the parenting dispute with the father, or with the marriage breakdown with her husband.
At paragraph 19 of her second affidavit, the mother makes further comments about [B]’s schooling:
“…there was never an agreement between Mr Gilkes and I that [B] would be enrolled in [S] School, [W]. There is no reason for [B] to attend [S] School. I cannot afford to send [B] to [S] School and the long distance travelling will be hard on [B]. In addition to school fees, there are also other associated costs with attending a private school which I cannot afford. [W] is about 40 – 50 minutes drive from [Y]. There is a bus which travels from [Y] to [S] School in [W]. It leaves at approximately 7:55 am and arrives at the school at about 8:40 am. In the afternoon the bus leaves [S] School at about 3:40 pm and arrives at [Y] at approximately 4:20 pm. I do not believe that it is in [B]’s best interest to travel by bus to [W], given her age and distance. It will be a very long day for [B].”
The mother attaches as annexure “KWL-1” to her second affidavit a copy of a booklet containing information on [Y] School, the school that she would prefer [B] to attend from 2009 onwards.
At paragraph 23 of her second affidavit, the mother comments on her then requested order to change the family name of [B] from “Gilkes” to “Lenton-Gilkes”. While the Court appreciates that this order was not pursued at the second hearing, the mother does describe [B]’s relationship with the mother’s husband Mr L as follows:
“…[B] knows that Mr Gilkes is her dad and she refers to him in that capacity. She also has a good relationship with my husband Mr L. Mr L is quite supportive of me. She is very fond of her baby brother [G]. She is aware that we are a family unit and there is no confusion about that. Mr L and I have a good marriage and we have a stable home. [B] has been enrolled at the kindergarten under the name of Lenton-Gilkes and she is known by this surname.”
This issue was the subject of subsequent cross-examination detailed shortly.
In her third affidavit sworn 15 December 2008, the mother details various problems that have arisen with respect to [B]’s parenting since her June affidavit, although she does acknowledge at paragraph 5 (b) “…the father appears to managing these arrangements well.”
At paragraph 5 (a) of her third affidavit, the mother details her current financial circumstances with respect to the father’s proposal for [B] to attend [S] School:
“I receive a single parenting payment of about $265.00 per week and a family tax benefit of about $190.00 per week. My child support for [B] is about $232.50 per week and child support for [G] is about $25.00 per week. I do not have a substantial disposable income and I also have significant necessary expenditure.”
The mother also states at paragraph 11 of her third affidavit that it is her belief that the school issues were causing [B] some stress:
“I believe that the only thing that [B] is stressing about is the pressure that the father is putting on her about [B] attending
[S] School. He has told her that she can make new friends at the [W] school and also said that she does not need to have her old friends there. [B] has told me this on numerous occasions. [B] has also been waking up at night, crying. She has said to me that she does not want to go to the new school at [W]. She wants to be with her friends from [Y] School. I have also spoken to her kinder teacher a few times because she does not seem to want to interact with the other kids at kinder including some of her friends.”
At paragraph 12 of her third affidavit the mother disputes the father’s assertions that she is not facilitating telephone time between the father and [B]. She states that she has “missed a few of the father’s calls because he has called during the time when I am cooking and he does not allow me enough time to answer the call.”
At paragraph 14 of her third affidavit the mother reveals that she has now separated from her husband Mr L but that the separation “has not affected the day to day care and arrangements for [B].” Interestingly, she does not reveal in her affidavit when that separation occurred. The mother’s evidence here was to some extent contradicted by her husband’s ‘My Space’ page in which the mother recorded an entry on
6 July 2008 at 10.12 pm (being exhibit “AF 20”). The entry states that:“As you are no longer [Ms Montague]’s hunk of spunk, I suggest you change your profile.”
“[Ms Montague] will not and does not forgive, nor will she forget what you did.”
The mother was cross-examined at some length by counsel for the father, Mr Mort. Early in the cross examination the mother was asked a series of questions about her relocation to [Y] and the subsequent relocation of the father:
“Do you concede that the father has made a sacrifice in terms of moving from [F] to [C] to [U] in order to be closer to [B]. Do you concede that?”
“Not really, no.”
“You don't?”
“No.”
“Why don't you concede that, Mrs Lenton?”
“Because if the father genuinely wanted to spend extra time with his daughter he would do whatever possible in order to make that.”
“I see. So what have you done that's possible in order to meet the father half way, in terms of looking at properties around [M] for example. What have you done?”
“I moved into the property that was available for me at the time that I could afford.”
“No, Mrs Lenton, that wasn't the answer. The question is this: what have you done in terms of looking for properties around the [M] area, rental properties, to meet the father half way?”
“I am purchasing my house. I'm not going to leave that to rent someone else's house.”
“But that's a possibility, isn't it?”
“What is to stop the father from relocating closer and purchasing a house down…”
The mother later conceded that she had made no enquiries in respect of living in rental properties in [M]. She also conceded that the father had since separation moved closer to where [B] was living.
The mother was then cross-examined in some detail about her recreational activities over the month or so prior to the hearing. The mother conceded that she has commenced playing “darts” socially at a local pub on Tuesday and Thursday evenings and that on those occasions she has relied upon her parents to look after her children to facilitate her attendance. She subsequently acknowledged other recreational activities that she attended that also necessitated her parents assisting with the child care of her two children. She also acknowledged that she has on occasion collected the children in the early hours of the morning from her parents’ place or more likely stayed the night at her parents’ place following a “night out”.
Later the mother was asked specific questions by Mr Mort about the father’s parenting of [B]. At one point Mr Mort asked:
“What are the sort of positive things he does for the child?”
“I honestly don't know.”
“Why don't you know?”
“Because we ask [B] what she has done and most often she comes back and says negative stuff. Like that the step-daughter has hit her or she couldn't play with her toys and stuff like that.”
“…Has she got a photo of her father in her room?”
No, I would not imagine that she has got a photo of me in her room at his house.”
“That's where you're wrong. I suggest to you it's quite clear in my client's affidavit material if you've read it, he has a photo of you in the child's room?”
The mother later stated that while she does have photos of the father on her computer, she conceded that there was no reason why the child couldn’t have a printed photograph of the father in [B]’s room. Mr Mort then asked:
“…why don't you do it? Why didn't you think about doing it?”
“Because I don't particularly see that she needs to have a photo there to remember her dad. She knows who he is. We talk up when she's going with him. She knows what weekends she goes with her dad and what nights she goes, whether it be a Gymbaroo day or a kinder day.”
“You see, isn't the situation this, if you're going to be quite frank with the court, Mrs Lenton, you don't have much time for my client, do you?”
“At present, no.”
Mr Mort then went on to cross-examine the mother about the break down of her marriage to Mr L:
“Would you agree that it was an important part of your case when you were before Phipps FM that you presented as having a stable relationship with Mr L?”
“Which we did.”
That you said in your affidavit on 20 June of this year - paragraph 23…that "Mr L and I have a good marriage and a stable home?”
“And we did.”
“When did you separate from him?”
“On 31 July.”
“So a little over a month after that affidavit he separates. There was no lead up to that, was there?”
“No, Mr L was diagnosed with bi-polar at the beginning of this year and leading up to the court case in June it affected his health immensely.”
“Where does it say in any of your affidavit material that Mr L was suffering from bi-polar disorder?”
“I didn't feel that I needed to pinpoint exactly what his cause was. I put in there that his health was affected.”
“Did you tell Ms Slattery, the family report writer, when you're presenting this picture of a stable home environment…that Mr L was suffering from bi-polar disorder?”
“We weren't aware of it at the time.”
“Mrs Slattery…had an interview with you on 8 April 2008 according to her affidavit, Mrs Lenton?”
“Yes.”
“Because you said at the beginning of this year you were aware that Mr L was suffering from a bi-polar disorder before that appointment, weren't you?”
“No, we were aware that he was unwell. They hadn't pinpointed exactly what it was. It was after that appointment with her that they were able to give us a diagnosis of what was actually the cause.”
Did you speak to your solicitor or Mrs Slattery and say, "Look, we've got a diagnosis on Mr L now. We've found out what's wrong with his health. He has actually got a mental health disorder.” Did you do that?”
“No, because I didn't feel the need to. It didn't effect anything in regards to this case or my family.”
“I see. Well, it does, Mrs Lenton, when you're presenting the fact that you've got a good marriage and a stable home. Would you agree with that?”
“Yes.”
“We chose to separate because of what this particular situation was doing to his health, which was then affecting my health. It was a mutual agreement that he be removed directly from the picture in order for him to get better.”
“Was he violent towards you?”
“Not at all.”
“Abusive?”
“No.”
Later under cross examination the mother admitted that she had sought an Intervention Order against both her husband and his mother. The mother was unable to produce a copy of the Intervention Order when the matter returned to Court on the second day of the hearing. She did however present a signed Undertaking between herself and her husband dated 31 October 2008 (being exhibit “AF -10” in these proceedings). The Undertaking provided that the mother and her husband undertake not to do certain behaviour towards each other including “assault, harass, threaten, intimidate, or behave in an offensive manner at any time” and “cause or allow the child/ren [to] hear or witness any of the behaviour prohibited by this order or other family violence at any time.”
Despite the Undertaking the mother stated in evidence that she still communicates with her husband and it is “not a problem.” She also stated:
“We went out for dinner last week for his birthday and he comes around on a regular basis to see both the children.”
The mother subsequently conceded that at the time of the separation, the husband’s problems were “bad” and that it was in both of their “best interests” to separate.
The mother was then asked about a series of “MSN” conversations that she had with a friend about her husband’s condition. These conversations were admitted into evidence without objection and became exhibit “AF15”. The relevant conversation occurred on Sunday 7 December 2008. In cross examination the mother was asked by
Mr Mort:
“…You say, "He claims he no longer needs his psych meds, that he's much happier now I'm not around and that I was his problem. That's why he wanted to kill himself all those times"?”
“Yes.”
“That's what you wrote?”
“Yes.”
The mother then stated in her evidence that the husband’s alleged suicide attempt occurred in August 2008 after they separated. She also conceded that she found some documentation that the husband wrote that he had contemplated suicide but that it was not during the time that she was living with him. More disturbing however was her evidence that her husband had been prescribed mood stabilising medication and antidepressant medication to assist with his mental health condition around April 2008. The mother admitted in her evidence that she had not informed either her lawyer or Ms Slattery about this development, nor was it disclosed by her in the hearing before Phipps FM.
Mr Mort then cross-examined the mother about her sessions with
Mr H, clinical psychologist in [T]. It was fairly clear from her evidence that these sessions were not related to the parenting issues associated with [B] but rather the circumstances of the breakdown of her relationship with Mr L. Notwithstanding, the mother denied that [B] would have been alert to the stress that the mother was suffering following the breakdown of her relationship with Mr L.Mr Mort’s cross examination of the mother recommenced on the second day of the hearing. In relation to the break down of her relationship with Mr L, the mother was asked:
“You said yesterday that you left on amicable terms, but I suggest to you that you didn't leave on amicable terms; that in fact Mr L left you for another woman?”
“No, that's not correct.”
“I have here an MSN and I'll read it to you. It's under your name that you've used before [Ms Montague], and it's dated 4 December…it's dated 3 December. It's hard to read. It says, "[Ms Montague]…"My daughter's father married with a stepdaughter." You're referring to Mr Gilkes. "[Ms Montague] says my hubby, the darling that he is, is already living with the skank he left me for. Nice of him, isn't it." You're referring to Mr L there, aren't you?”
“Yes.”
“Then it goes on further to say, "The hubby only has fortnightly visits alone. If he was to bring anyone else, I'd not let him in." So you're referring to Mr L there again, aren't you?”
“That's correct.”
“Then you refer I suggest to Ms G - Ms G. You say, "The wife of the first is a fat, ugly, jealous bitch." That's what you called her, didn't you?”
“Yes.”
“Why would you say such a nasty thing?”
“That would have been probably after a conversation that I'd had with her via email.”
“I say this is a common occurrence. That's how you refer to her, don't you?”
“No.”
“And you don't hold back when the child is in your presence, do you?”
“That's not correct.”
The relevant MSN conversation was tendered in evidence without objection and became exhibit “AF-11”.
The mother was then asked further questions about her relationship with her now estranged husband:
“You also don't have too many kind words to say about Mr L, do you - [G]'s father?”
“There have been times.”
“This is a man we spoke about yesterday, you refer in your June affidavit as having a stable happy relationship with him?”
“At the time I did.”
“Then six months later, you're referring to him in this MSN I've got here as a fuckwit. Is that right?”
“That's correct.”
“Do you call him a fuckwit in front of the child?”
“No, I do not.”
“But it's a term that you use to describe the father of [G], isn't it, a fuckwit. Is that right?”
“In text. It's been written in text. I refer to the father of [G] as[first name omitted].”
“Sorry, I didn't hear you, Mrs Lenton?”
“No, I do not refer to him as that.”
“You have in this MSN. I'm about to tender it and I'll show you in due course. I'll read it to you. This is dated 8 December, so not long ago. It's 6 o'clock at night, dinner time usually with the children I suggest. You've said here, "[Ms Montague] says the fuckwit just left. Ha ha, [G] was asleep." You go on to say, "He saw him, but he didn't get to do anything with him. I'll kill him if he comes back later. I need to go, don't know where. Just need to get out of the house. Grr." It goes on to say - you say, "That's okay. I'm so ready to murder someone." Have a look at this document please. Do you identify that document?”
“Yes.”
The relevant MSN was tendered without objection and became exhibit “AF 11”. The mother explained in that MSN she had been “milked” by the person she was conversing with in the MSN to call Mr L the word she described. In addition, the mother denied that her use of this language was common and that it was not a reflection of poor parenting or a reflection of being an adult who was not mature.
Later the mother was cross examined in relation to the communication book and entries that appeared therein. The communication book was later tendered in evidence without objection and became exhibit “AF 14”. Mr Mort firstly asked:
“If you go to this communication book which I called for, and I've read through that, and it would appear - and I ask for your response - that both you and the father - and Ms G has put some entries in here - have gone to some effort in terms of outlining what [B] has been up to during the times with both yourself and with the Gilkes. That's right, isn't it?”
“That's correct.”
“The entries in this book are unremarkable in terms of there's no conflict in here, is there?”
“Yes, there is.”
“Very minimal I suggest. What do you say about that?”
“I think the communication book is a joke to be honest.”
“You think it's a joke, do you? You must, I suggest to you, because when I asked you questions about what do you discuss with [B] when she gets home from contact yesterday, you were pretty quick to tell the court that she complains about getting hit by [E], weren't you? Is that right?”
“I have confronted her father on this occasion.”
“I suggest to you that you didn't have anything positive at all to say about the child's time spent in the Gilkes' household, did you?”
“That's not correct.”
When I asked you about it, you certainly didn't say anything I suggest to you, did you? We can call for the court transcript if you like, but I suggest to you you did not say one positive thing in terms of [B]'s time spent with her father, did you?
“No.”
Mr Mort then put a number of entries from the communication book to the mother that related to activities [B] had undertaken whilst in the care of the father. Mr Mort then asked a question about a specific entry dated “3-5 Oct”:
“[B] has told us Mr L no longer lives with you. Can you confirm this is the case.”
“We think it is reasonable that both parties are updated on [B]’s living arrangement. [B] has been talking about committing suicide lately, this is concerning us a lot.”
After acknowledging that this particular entry is a significant matter, the mother was asked by Mr Mort:
“Do you think that might have anything to do with the fact that her mum is seeing a psychologist, that her stepfather has left the home in a situation I would say of conflict, and that it's having some impact on your health. Would you say that had anything to do with that?”
“No.”
“So what did you do about it? Did you take [B] off to see a specialist or speak to someone about it, a doctor or get a referral?”
“I have not personally heard [B] speak of it, but I spoke to her father in regards to it and, yes, [B] has seen a psychologist.”
“This is the first time I've heard of this. When did [B] go to see a psychologist?”
“It was before the original court case in June.”
“You did not mention that to my client, did you?”
“No, I did not.”
“You did not raise that in the proceedings before Phipps FM, did you?”
There was no need to.”
“You did not raise it in the appeal proceedings, did you?”
“No.”
“You did not tell Mrs Slattery about it, did you?”
“It was after.”
“You did not tell Mrs Slattery about the child seeing a psychologist, did you?”
“Because she hadn't at that stage.”
“You said before the court proceedings. When before the court proceedings?”
“It would have been in June.”
…
“It wasn't raised with Mrs Slattery when she was cross-examined in the proceedings before Phipps FM, was it?”
“No.”
“Because no-one knew about it. Is that right?”
“That's right.”
“Do you understand, Mrs Lenton, that you have a duty to consult about these matters with the child's significant other, being
Mr Gilkes. Do you understand that?”“I do, yes.”
The mother then went on to state that the child had attended before psychologist Mr H, the same psychologist she saw with respect to issues that led to and arose from the breakdown of her marriage. When the mother was asked why she took [B] to see Mr H, she replied:
“Because I was concerned of the effects that this court case is having on [B].”
“That's all?”
“That is all.”
“Nothing to do with the troubles that you were enduring with
Mr L?”“Not at all, no.”
“Is there any reason why you didn't instruct your solicitor or your barrister on the day to raise this in court with
Mrs Slattery?”“No.”
“I suggest to you the reason is because it wasn't going to advance your case any further. That's what I'm going to be saying to his Honour at the end of this case, that you didn't bother putting that evidence before the court because it wasn't going to reflect positively on your case. What do you say about that?”
“There is nothing to say to that.”
Mr Mort subsequently asked about an entry made in the communication book on “Nov 7th 2008”:
“Then on 7 November 2008, you report in the communication journal that the child is a compulsive liar. You say, "She constantly returns home saying [E] has hit or kicked or said nasty stuff to her, yet when she's confronted you about it, she is the one that has been put in time out." That was your entry in the book?”
“That's right.”
“Do you think the child is a compulsive liar?”
“No.”
“Why would you put such a thing in the book?”
“Because on a number of occasions, [B] has come home from her father's house and told us stuff. Then when I've either confronted her or her father, the story has changed.”
“Do you think that when she tells you that she might want to go to [Y] School, that she's only telling her mother things that she thinks her mother might want to hear?”
“No, because I'm not the only person that she's told.”
“All right. Who are those other people?”
“She's told my family and just friends in general. When they ask her where she's going to school and how old she is, she tells them.”
“Where are those friends and family? They're not on affidavit, are they?”
“No.”
Later the mother was cross-examined about the father’s allegation that she has frustrated his attempts to have telephone time with [B].
Mr Mort asked:
“You see, you say in your own affidavit that you complain about him ringing the phone for a few seconds I think you say - paragraph 12 a) of your recent affidavit. I think it's paragraph 12 a), your Honour. Yes, paragraph 12 a). You say, "I believe I have missed a few of the father's calls because he has called during the time when I'm cooking"?”
“That's right.”
“His time is 7.00 to 7.30. You've got to have the child ready for bed by 7.30, ready for bed by 8.00, and you're cooking between 7.00 and 7.30. How can that be?”
“No, I usually start cooking around quarter to 6.”
“Why would he be ringing you at that time when the orders are 7.00 to 7.30?”
“Because those one or two times in particular he's rang right on 7 o'clock when my phone has been at the other end of the house.”
“How do you know it's him then?”
“Because it comes up with his name.”
“Okay. You say here he hangs up after about three or four seconds. You're at the other end of the house …?”
“If it rang any longer than that, I would hear it.”
“Sorry? You're just making this up as you're going along, aren't you, Mrs Lenton?”
“That is incorrect.”
…
“You see, my client says after the orders that were made on
27 June, that he only was able to get through on two occasions to speak to his daughter. That would be about right, wouldn't it?”“No, that's incorrect.”
The mother later stated that while she would not stop [B] from phoning the father, she does not particularly see the need for it given that she is now spending five nights out of every fortnight with the father. In response to this, Mr Mort asked:
“So if the child is with my client - if his Honour at the end of the day says that it's appropriate that there be a seven-night, seven-night breakdown over the fortnight, would you expect a call from [B] in that week that she's not with you?”
“I've rang him on a number of occasions.”
“No, please listen to the question. If his Honour orders a seven-seven split in terms of where the child lives, would you expect [B] to call you during the periods that she's not residing with you?”
“I would like for that to happen, yes, but I wouldn't expect it.”
“You wouldn't expect it?”
“No.”
“So you wouldn't be upset if it didn't happen?”
“If it was put in place in the orders that it was to happen and didn't happen, I would be upset.”
“So you can well understand I suppose how my client would feel if he's not getting his telephone time with the child. Would that be right?”
“Again I have not stopped him from calling, and I try and answer the phone as much as I can.”
Mr Mort also cross-examined the wife in relation to an incident which occurred on Father’s Day 2007:
“…Father's Day 2007, the child was collected on the Sunday, and a Father's Day card [B] had made at kindergarten - do you remember this occasion?”
“Yes, I do.”
“In fact when you collected [B] from my client and you in fact gave the child that card she'd made at kinder and said, "Go and give this Father's Day card to your new dad"?”
“I did not say that, no.”
“My client never received a Father's Day card from [B] in that year, 2007, did he?”
“No.”
“The card that she'd made for her dad was in fact the card that you gave her to hand over to Mr L?”
“That's incorrect.”
“Do you know why he didn't receive the card she made for my client?”
“We usually let [B] choose who she wants to give what she makes. I have not stopped her from - she's given her dad a number of things.”
Later Mr Mort asked:
“Did [B] make you a Mother's Day card?”
“Yes, she did.”
“You were happy to receive it?”
“-She handed it to me.”
“You were happy to receive it, Mrs Lenton?”
“Yes, I've stuck it on the wall with the rest of her paintings.”
“Thank you. Did you see her face when she gave it to you?”
“Yes.”
“I suggest to you no doubt, as most children, she had a beaming smile on her face?”
“As she does when she hands me most of her artwork.”
“Very proud to make the card that she's carefully put together at kindergarten. Yes?”
“Yes.”
Later the mother indicated that it was not a Father’s Day card but rather a “bookmark” that [B] had made for her father in September 2007 and that the mother still had it at her home. Mr Mort then asked:
“What did it say on it?”
“I can't recall.”
“You've got it at home. You've pinned it up on the fridge, haven't you?”
“No, it's in the bedroom.”
“Whose bedroom?”
“My bedroom.”
“On your wall?”
“-No, it's in the drawer, hence Father's Day, not me.”
“Not you. Where was it before it was in your drawer?”
“It's always been in the drawer.”
“What did Mr L do with it when he received it?”
“That's where he put it.”
“Where did he put it?”
“In the drawer.”
Later Mr Mort asked questions about [B] receiving a completion certificate from her kindy in the family name “Lenton-Gilkes”. According to the mother’s evidence there was some confusion at the kindergarten and the certificate that [B] received in December 2008 was incorrect and a new certificate will be issued in due course.
Mr Mort then asked her about her affidavit sworn on 20 June 2008 where at paragraph 23 she states:
“[B] has been enrolled at the kindergarten under the name of Lenton-Gilkes and she is known by this surname.”
In her evidence the mother said that was not incorrect. She said:
“…She is enrolled in Gilkes and has been from the start. All we asked was that she be known as Lenton-Gilkes so they could associate her with me.”
“Remember at the start of these proceedings, Mrs Lenton, I asked you whether you'd read your affidavit material in this case?”
“Yes, I have.”
“That it's true and correct?”
“Yes.”
“That you considered yourself an honest person. Do you remember that?”
“And I am.”
“You are?”
“Yes, I am.”
“Yet you have misrepresented the situation in this affidavit if what you say in the witness box to his Honour today is correct. I'll read it to you again, paragraph 23 page 5 of the June affidavit, your Honour, last sentence, "[B] has been enrolled at the kindergarten under the name of Lenton-Gilkes, and she is known by this surname." That's wrong, isn't it, according to your evidence?”
“Yes.”
Mr Mort then asked the witness to see a page from the transcript of her evidence given at the hearing before Federal Magistrate Phipps (specifically transcript page 93, line 44, subsequently tendered in evidence without objection to become exhibit “AF 18”), Mr Mort said:
“I'll read it to you, Mrs Lenton,
"Ms Smallwood: You say in your affidavit that you had enrolled [B] in kinder as Lenton-Gilkes?”
" No, she's enrolled at kinder as Gilkes, but known as Lenton. It was only because it makes it easier for teachers and anyone else dealing with the paperwork to associate with me being her mother?”
"All right. So why did you lie about that in your affidavit at paragraph 23? I only know this because I've read your affidavit when you say, '[B] has been enrolled at the kindergarten under the name of Lenton-Gilkes, and she is known by this surname.' So you got that wrong, did you?”
“No, I did not get that wrong. She is known.”
"Well, you enrolled her at the kinder as Lenton-Gilkes. Correct?”
"No, because you cannot enrol a child under that name that they do not have.”
"Well, why did you get it wrong then in your affidavit?”
"I haven't got it wrong. She is enrolled as – she is known as Lenton-Gilkes at kindergarten.”
"Do you hear what I just read you said?”
“That's a true reflection of the questions and answers that were given before his Honour Phipps FM, isn't it?”
“That's correct.”
The mother thereafter stated that her evidence in the transcript was correct and that her affidavit must have contained “a typographical error.”
Later in her evidence the mother did not agree that there was any advantage to [B] having a private school education. She did acknowledge that she did have some discussion with the father about [S] School. At one point she stated:
“We were keeping our avenues open in regard to secondary school level only. Primary school was always going to be she attended the local primary school. Even when we were together, she was going to the public school just down the road from where we were living in [N].”
Mr Mort then asked:
“From your point of view with the inquiries that you've made, you don't see any benefit whatsoever in [S] School for this child?”
“Not in primary school level, no, I do not.”
“What about secondary?”
“Secondary school is - it can be looked at as an option, yes, I don't have a problem with that.”
Later the mother went on to indicate that any “agreement” that the parties had with respect to [B] attending [S] School was limited to secondary school only.
The report writer’s evidence
As previously, stated, Ms Slattery was cross examined by respective counsel for the father and the mother in relation to her report dated
24 April 2008. In addition to her report a letter from Ms Slattery to the Independent Children’s Lawyer (appointed in relation to the first hearing) was tendered in evidence by the husband without objection and became exhibit “AF 22”.
In his cross examination Mr Mort asked Ms Slattery:
“You gave evidence at the last proceedings, didn't you,
Mrs Slattery?”“I did.”
“Since your April report, you haven't had the opportunity of further interviewing the parties in this matter, have you?”
“No.”
“Your recommendations at the time of this last report were, amongst other things, that the child live with the mother and there be gradual changes over 2008, that the child live with the mother and the father in a shared care arrangement. Yes?”
“The shared care arrangement, I think it was five nights and – yes”
Later Ms Slattery confirmed that she was not aware that [B] had attended counselling in June 2008 with clinical psychologist, Mr H. She was also asked some questions in relation to the mother consulting with Mr H:
“…Were you given any feedback by Mrs Lenton in terms of her counselling with Mr H?”
“Again I don't actually recall. I'd need to have a look in my notes…”
“Would you please?”
“… I think I saw her before June. I saw her in April.”
“You saw her in April, I know that?”
“Yes.”
“But you were cross-examined at the end of June, and she'd already seen Mr H on six occasions. So I'm asking you whether you were provided with any information, feedback from those sessions with Mr H?”
“I can't recall what happened in court. Sorry, I can't recall that.”
“That's okay. You see, the first time we learnt about Mr H in detail was today. The first time we learnt that she'd taken the child to Mr H without my client's knowledge was today. Would that cause you some concern in relation to - particularly in relation to the child, that the mother would fail to consult with the child's significant other, being his father?”
“I would be concerned that he wasn't consulted with, and I'd also be concerned that a professional would see the child without the permission of both parents.”
In his cross examination of Ms Slattery, Mr Jackson asked:
“Is it your view that the best interests of [B] are not served by a seven-seven in 2009?”
“I don't see it as being in [B]'s best interest for that to take place at this time.”
Later Ms Slattery stated:
“…I think that [B] needs the year to settle in and go through such a major change in her life without facing then another major change. I would let [B] go through her prep year before there's any consideration for a week-about arrangement.”
A little later the Court asked Ms Slattery a question in relation to what discussion, if any, the parties had revealed with respect to the child going to [S] School, I said:
“As I understand it, when a question was put to the wife earlier today, she maintained that any discussion with respect to the child going to [S] School' school in happier times was limited to high school only. Is that your recollection?”
“I'm sorry, your Honour, no.”
The Court subsequently asked Ms Slattery a question about [B] changing schools in subsequent years:
“…My only other question to you relates to two broad concerns that you've raised about children and education, and one of the issues the court has to decide is the school. You've made it very clear I think in your evidence that there's an importance to focus on the prep year, but you've also made an interesting comment about school changes to children. I think you made a comment about [E] changing schools. One issue the court may have would be a subsequent change in schools even after the prep year. I don't know whether you can grade the seriousness of all those, but it just seems that you've raised two issues. I just want to know if they can be reconciled in any way, shape or form. Do you understand the question?”
“I do, your Honour. I think that secondary school is not a bad option for a change. Many children attend primary school and then move to a different secondary school. If [B] was proceeding well at the current school, whichever school she goes to, then I wouldn't see why there would be a need to change unless something drastic happened.”
The Full Court of the Family Court’s decision of In the Marriage of Hall (1979) 5 Fam LR 609 contains an authoritative statement about how reports such as the one written by Ms Slattery should be treated in proceedings such as this case:[1]
[1] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-615.
“In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities In the Marriage of Wood (1976) 2 Fam LR 11,182, In the Marriage of Harris Fam LN No 33; (1977) 29 FLR 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.”
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation …
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied …”
In this matter the report writer’s evidence was tested and some caution needs to be applied in relation to her recommendations. Whilst the Court accepts that Ms Slattery is the only independent expert party in these proceedings, she clearly did not have all the relevant facts before her when she made her evaluations in April 2008. In particular, she was not appraised that there were potential problems in the mother’s relationship with her husband, and more importantly, that he was currently under medical supervision for mental health issues. In this respect, the Court notes in particular paragraph (d) of the Full Court’s comments in Hall’s case restated above.
That having been said, it is clear that Ms Slattery, despite the fact that she has not interviewed the parties since April 2008, nor observed them since that time apart from the two hearings in the matter, still maintained that any move towards equal time parenting needs to be done cautiously and certainly over a prolonged period. In her cross examination she was clear that equal time parenting would not be appropriate through 2009. Nevertheless, she was also forthright in her view that [B] needed to spend as much time as possible with the father.
In relation to schooling it is clear that Ms Slattery would favour [B] attending [Y] School at least in the short term and possibly right through her primary school years. She did acknowledge that there would be travelling issues for [B] and her parents regardless of whether [B] attended [Y] School or [S] School in [W].
The law
The Court is asked to make specific parenting orders in relation to these proceedings. More specifically, the Court is asked to determine how much time [B] will live with each of her parents, and in that respect, which school may best assist her residential circumstances. There is no disagreement between the parties that each should have equal shared parental responsibility.
Parenting orders are defined in section 64B of the Family Law Act 1975 (“the Act”). Parenting orders deal with where the child is to live, the time the child is to spend with another person or otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that for the purposes of making a parenting order the Court must regard the best interests of the child as the paramount consideration.
Section 61DA incorporates a presumption that the Court is required to consider when making a parenting order. That is, the Court must apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility. There appears common ground between the parties in this matter that they should have equal shared parental responsibility for [B]. In any event, the issue in this case is not the issue of parental responsibility but rather the time that [B] would live with and/ or spend time with and communicate with each of her parents and what school would best facilitate her residential circumstances.
The Court is required under section 65DAA of the Act to consider whether [B]’s best interests would be served by making an order that she spend equal time, [2] or alternatively substantial and significant time, [3] with each of her parents. As previously discussed, the father is seeking equal time. This is opposed by the mother who favours that [B] spend substantial and significant time with the father. Either outcome requires the Court to consider whether the child spending equal time (or substantial and significant time in lieu) with each of the parents would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.
[2] Section 65 DAA(1)
[3] Section 65 DAA(2)
It is note worthy that section 65DAA(3) stipulates that a child will only be taken to spend “substantial and significant time” with a parent if:
“(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
In considering the reasonable practicality issue, section 65DAA(5) requires the Court to have regard to:
“(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.”
Given that this was the extent of the controversy between the parties in relation to these parenting orders, this decision only addresses those issues raised for the Court’s consideration. In any event, the Court needs to approach the determination of the controversy between the parties by reference to what orders should be made in the best interests of the child.
The issues that arise for this purpose are the primary and secondary considerations that the Court must take into account under section 60CC of the Act. What is considered to be in the best interests of the child in these types of cases necessarily depends on the particular circumstances in each case. In each case different circumstances require different resolutions.
The Court will now turn to consideration of the factors in section 60CC(2), (3) and (4) of the Act in the context of this case. The primary considerations are set out in section 60CC(2).
The benefit to the child of having a meaningful relationship with both parents
It is clear from the evidence of the parties that both accept the need for [B] to have a meaningful relationship with her parents. It is also clear from the evidence of Ms Slattery, that any outcome should not jeopardise the child’s wellbeing including her ongoing and long term relationships with both parents. Overall, the Court is satisfied that the recommendation of Ms Slattery that the father’s time with [B] should be increased over time, will best allow for a more meaningful relationship to develop between the father and the child but without jeopardising the relationship thus established with the mother.
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
The mother’s decision to avoid informing the Court at the previous hearing about the circumstances that led to the break down of her marriage, but more particularly, the mental health issues associated with her husband, is troubling. While it is clear that Mr L has not been residing with the mother (and [B] and her brother [G]) since July 2008, it was a matter that the Court should have been made aware of at a much earlier stage.
There appears to be no dispute that [B] spoke to the father in somewhat vague terms about “committing suicide”. These comments are disturbing. In addition, the mother’s admission that she had taken [B] to see a psychologist without the knowledge of the father again raises concerns about the domestic circumstances that were present in [B]’s life.
In determining the best interests of the child, the Court is also required under section 60CC(3) to consider additional considerations where relevant.
The child’s expressed views and the weight those views should be given
Given [B]’s age, it is not possible or appropriate for Ms Slattery to interview [B] as part of her family report. That having been said, at paragraph 32 of her report Ms Slattery was able to state:
“32. From my observations and information, [B] appeared to be developing at an age appropriate level.”
In her evidence, the mother asserted that [B] has made statements that would lead the Court to the conclusion that she wishes to attend [Y] School. While it could be suggested that such a statement is self serving to the mother’s cause, such a comment, if stated, would not be surprising given [B]’s current residential circumstances and particular the fact that some of her fellow kinder attendees would be moving on to [Y] School for their prep year.
The nature of the relationships between the child and each parent and other people important in their lives
There is no doubt that both the mother and the father love their daughter. Since [B]’s birth, both have formed new relationships and have had children to those relationships. In other words, [B]’s best interests involve ongoing relationships with not just her parents and their partners, but also [E], [D] and [G].
In her family report, Ms Slattery stated at paragraph 39:
“39. It is my view that [B] does benefit from having an ongoing relationship with both Ms Montague and Mr Gilkes.
At paragraph 34, she states:
“34.From my observations, [B] appeared to have warm and close relationships with Ms Montague and with Mr Gilkes. [B] also seemed to have developed warm and accepting relationships with Ms G and with Mr L. [B] appeared to have a warm and accepting relationship with [E]. [B] has a baby brother and a baby sister but the nature of her relationships with both babies is not yet apparent…”
In view of the marriage breakdown between the mother and Mr L, the Court assumes that [B] will not now have any ongoing relationship with Mr L, nor is there any evidence before the Court that such a relationship would be in [B]’s best interests.
The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the children and the other parent
In her family report, Ms Slattery noted the “unresolved issues” that still existed between [B]’s parents and stated:
“…At the current time it is these unresolved issues that are in the way of them being able to develop an appropriate parenting relationship for [B] and will continue to prevent them from being able to make joint decisions about [B].”
The Court is satisfied from the evidence that the father has attempted over the years to facilitate and encourage a close and continuing relationship between [B] and the mother. This is in particular borne out by his decision to move his family closer to the mother’s residential location, notwithstanding the difficulties that it has presented to his employment. By way of contrast, the evidence did not suggest that the mother had actively encouraged a close and continuing relationship between [B] and her father.
Any changes in the child’s circumstances including the likely effect on the children of any separation
The proposals of both the mother and the father will result in changes to [B]’s existing circumstances. [B]’s circumstances are complicated because if she is to spend less time with her mother (and consequently less time with her brother [G]) she would be spending more time with her father (and consequently, more time with her sister [D] and step sister [E]). As a result of Ms Slattery’s recommendations made in her report in April 2008, [B]’s circumstances have changed in that she now lives five nights out of every fourteen with her father. The Court agrees with Ms Slattery that any changes to [B]’s future circumstances must be introduced gradually.
The Court disagrees, however, with Ms Slattery’s observation that any changes to [B]’s schooling (i.e. from a local government school to a private school) is “a philosophical argument about private school versus state school.” The Court has no reason to doubt the father’s sincerity in his belief that (to quote Ms Slattery from her report at paragraph 42):
“ …[B] would have more opportunities in life if she attended a private school.”
The Court finds that there is a geographical factor at play in this case regardless of which school [B] attends. Clearly, [Y] School is very close to the mother’s residence. Likewise, [S] School at [W] is relatively close to the father’s residence. In the event that [B] continues to reside primarily with the mother, the child is still faced with considerable travelling to and from her father’s residence, whether before or after school, several times per fortnight (if the mother’s order’s are preferred), or up to ten times per week should the father’s order’s be preferred. There is no presumption which favours a child’s primary carer choosing the relevant school that a child attends. In the case of Re G: Children’s Schooling (2000) 26 Fam LR 143, the Full Court said [4]:
“…we approach the question of the wife’s application without any legal presumption that favours acceding to the proposal of the parent with whom the children are living… Although there is no legal presumption in favour of the residence parent and, correspondingly, no hurdle or onus faced by the other parent, that is not to say that the reality of the children residing predominantly with one parent has no relevance.”
[4] ReG: Children’s Schooling (2000) 26 FLR 143 at 162.
The Court went on to state that it must approach the exercise of its discretion on the basis that it is a decision between the competing proposals of the parties determined by reference to the best interests principle[5].
[5] Ibid at 163.
As previously mentioned, Ms Slattery was clearly of the view that [B] should spend her prep year and perhaps beyond, at [Y] School, being the school closest to the mother’s residence. At some point, [B] will have to change schools as there is apparently no secondary school in [Y]. The issue then becomes, when [B] is to change schools, should she be allowed to commence her high school years at [S] School in [W]. While it appears that [B]’s best interest may be served by her commencing school at [Y] School, it may be beneficial to her change schools as early as year one, to better enable a shared parenting or a substantial time parenting arrangement to commence. While some concerns were expressed by the mother and Ms Slattery about the travelling time that would be required by [B] to attend school in [W] (when she is residing with her mother) the dedicated school bus that is available solves some of the problems associated with a change in school, most importantly, [B]’s physical safety.
The practical difficulty and expense of the child spending time with both parents
There is a live issue in this case about the need for both parents and [B] to travel some distance to ensure that [B] has a meaningful relationship with both parents. This is something that is unavoidable given the respective residential circumstances of the parties.
The father has made it very clear that should the Court allow [B] to go to school at [S] School at [W] that he would pay all related school fees and the cost of the dedicated bus travel (or alternatively offer the mother “petrol money” should she wish to drive [B] to and from the school). These costs would be in addition to his existing child support liability. This offer overcomes the financial concerns expressed by the mother in her evidence about the financial difficulty she would personally face should she should be required to contribute to the private school and travel fees.
The capacity of each parent to provide for the child’s needs/ the attitude each parent has demonstrated to the responsibilities of being a parent
The Court is satisfied that both the mother and the father have the capacity to provide for [B]’s needs and generally demonstrated a positive attitude to the responsibilities of being a parent. However, as indicated previously, the Court is concerned as to whether the mother has genuinely demonstrated a capacity to foster a close and continuing relationship between [B] and the father.
The maturity, sex, lifestyle and background of the child and the parents
There are no specific matters here that assist the Court.
Any family violence (or any family violence order) involving the child or a member of the child’s family
There is no issue of family violence or any family violence order between the mother and the father. That having been said, the Court is concerned that [B] may have been exposed to family violence or related behaviour prior to and following the breakdown of the mother’s marriage to Mr L. The Court notes that the mother commenced proceedings seeking an Intervention Order both against Mr L and
Mr L’s mother and that in late October 2008 the mother and Mr L entered into mutual undertakings arising from these Intervention Order proceedings. [B]’s behaviour as acknowledged by the wife in her evidence, in the lead up to and following the breakdown of the mother’s marriage to Mr L, is concerning. Moreover the mother’s decision not to reveal these circumstances to either Ms Slattery when interviewed in April 2008, or at the first hearing of this matter before His Honour Federal Magistrate Phipps, is most concerning and places a question mark over her evidence.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
While the Court proposes that any order that it makes be subject to any agreement between the mother and the father that benefits [B], it is clear that the parties will require specific Court orders to assist them in their future parenting of [B].
It is also clear that any Court order requiring any changes in [B]’s current and ongoing circumstances, should be introduced cautiously and gradually.
Any other fact or circumstance the Court thinks is relevant
Although the Court does not consider that the mother was generally a dishonest witness, the Court does find several aspects of her evidence unsatisfactory. The mother’s decision to withhold information about her relationship with Mr L (and his mental health), in both the preparation of the family report, and at the first hearing of the matter, is most concerning. In addition, there are a number of instances where the mother has had to recant her previous evidence or had overstated aspects of her evidence (eg her estimate as to the travel times between her residence and [S] School and whether [B] had been enrolled in kindy as “Lenton-Gilkes”). In all the circumstances, the Court considers that the father, is on balance, more likely to be reliable witness than the mother. Consequently, his evidence is to be preferred when there is an inconsistency between the parties.
Conclusion
The mother and father should continue to have equal shared parental responsibility for [B]. In the longer term, an equal time parenting arrangement would in the Court’s view be of benefit to [B] in her ongoing relationship with her parents and siblings and is reasonably practicable. The Court agrees with the view expressed by the family report writer, Ms Slattery, that any changes in [B]’s circumstances should be introduced gradually. The Court is convinced that [B]’s best interests will be promoted by a gradual transition from substantial time parenting to equal time parenting over 2009/2010.
The mother’s proposal that [B] live with the father two out of every three weekends from after school Friday to before school Monday (or Sunday night if more convenient and suitable to the parties) should be implemented from the commencement of second school term and continue throughout 2009 during the school term whilst [B] is attending [Y] School. These arrangements would change in late January 2010 to a alternate week living arrangement with the consequence that [B] be enrolled to start year one at [S] School at [W]. This enrolment would be conditional upon the father undertaking to pay all school fees and directly related charges and, failing any agreement to the contrary, the cost of travel by school bus from the bus stop near the mother’s residence to the school in the weeks that [B] resides with the mother. The orders should include a stipulation that the school fees and school bus costs would be the responsibility of the father and would not be credited as a “Non Agency Payment” for child support purposes. In the event that the father’s financial circumstances were not able to meet the costs of the school, then the parties would need to agree on an appropriate alternative school and failing agreement a government school in the [M] area would be most beneficial to [B] given the distances between the respective parent’s residences.
In relation to school holiday periods, it would be in [B]’s best interests to spend half of the school holidays with her father and half of the school holidays with her mother. Subject to any agreement to the contrary, the orders should reflect an equal time school holiday arrangement, with the mother to have the first half all holiday periods commencing in 2009 and alternate years thereafter and the father to have the first half of all holiday periods commencing in 2010 and alternate years thereafter. The Court does not see any necessity that would require either the father (or the mother if she became engaged in paid employment), that they be at home with [B] during all hours of the school holidays. That having been said, [B] would still need to be suitably supervised whether by her extended family or paid child care at all times during school holidays until she progresses to secondary school.
Apart from providing an order that [B] should spend time with her mother and her father at all times as agreed by the parties, the orders should also include some specified special day arrangements in the event that the parties cannot agree. [B] should, if possible, spend time with both her parents on her birthday. She should also spend time with her mother and her father on their respective birthdays and also spend time with each of her siblings on their respective birthdays. [B] should also spend time with her mother on “Mother’s Day” and with her father on “Father’s Day”. Moreover, when possible, [B] should spend part of Christmas Day with both her parents (and her siblings), or at least with the parent that she is not living with during the first half of the long summer school holidays.
The orders should also include obligations on both parties to keep each other informed about [B]’s activities, health, education and development (preferably through the use of a communication book) and not to denigrate each other in [B]’s presence.
Lastly, the orders should include a requirement that both parties participate in family dispute resolution in the event that they are unable to reach agreement relating to [B]’s long term care, welfare and development.
Counsel will now have the opportunity to present precise terms of the orders sought by the parties in order to give effect to the terms of this judgment.
I certify that the preceding one-hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Monahan FM
Associate: Shani Drogemuller
Date: 6 April 2009
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