GODWIN & GLASS

[2017] FCCA 1695

FEDERAL CIRCUIT COURT OF AUSTRALIA

GODWIN & GLASS [2017] FCCA 1695

Catchwords:
FAMILY LAW – Parenting – 16 year old twins – agreement for one twin to live with her mother and other to live with his father – each child estranged from parent with whom he or she is not living – dispute as to parental responsibility – restraints on contact – costs of child support application.

Legislation:
Family Law Act 1975, ss.4AB(1) 60B, 60CA, 60CC, 61DA, 65DAA, 117
Child Support Assessment Act 1989, ss.116, 123

Cases cited:
Goode & Goode (2006) 206 FLR 212; (2006) 36 Fam LR 422; (2006) FLC 93-286; [2006] FamCA 1346
R v R (2000) 155 FLR 29; (2000) 25 Fam LR 712; (2000) FLC 93-000; [2000] FamCA 43

Other material:

Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005

Applicant: MR GODWIN

Respondent: MS GLASS

File Number: MLC 4588 of 2008

Judgment of: Judge Riley

Hearing dates: 13, 14 and 15 June 2017

Date of last submission: 30 June 2017

Delivered at: Melbourne

Delivered on: 21 July 2017

REPRESENTATION

Counsel for the applicant: Ms Dellidis

Solicitors for the applicant: Coulter Roache Lawyers

Advocate for the respondent: (omitted)

Solicitors for the respondent: (omitted)

Counsel for the independent children’s lawyer: Ms Boymal

Solicitors for the independent children’s lawyer: Victoria Legal Aid

ORDERS BY CONSENT

1. All previous orders in relation to X born on (omitted) 2000 (“X”) and Y born on (omitted) 2000 (“Y”) be discharged.

2. X live with her mother.

3. X spend time with and communicate with her father in accordance with her wishes.

4. X complete secondary school at (omitted) School.

5. Y live with his father.

6. Y spend time with and communicate with his mother in accordance with his wishes.

7. Y complete secondary school at (omitted) School.

8. The mother and father facilitate X and Y spending time together as arranged by X and Y, such time to include but not be limited to:

   (a)social media, Skype, telephone or other electronic communication; and

   (b)face to face time,

   with such time to be encouraged and facilitated by the mother and father.

9. The parents be at liberty to obtain information from X’s and Y’s respective schools including but not limited to school notices, school reports and school photograph forms.

10. Each parent keep the other informed of any significant medical illness suffered by X or Y and provide information to each other and consult with each other prior to X or Y receiving medical treatment and/or psychological treatment or undergoing surgery except in the case of an emergency.

11. The parents notify each other of any change of address, telephone number and email address within 24 hours of such change.

12. The parents by themselves and their servants and agents be restrained from discussing any matters pertaining to these proceedings with or in the presence or hearing of X and Y or either of them.

ORDERS BY THE COURT

1. The mother have sole parental responsibility for X.

2. The father have sole parental responsibility for Y.

3. The mother and her servants and agents, including the maternal grandfather, be restrained from communicating or interacting with Y in any manner or form or coming within five metres of Y unless Y instigates such communication or such interaction.

4. The mother encourage and facilitate X attending psychological counselling.

5. The father be permitted to attend X’s school events, which a parent would normally attend, if X invites him.

6. The mother notify the father within 48 hours of any change in X’s contact details.

7. The mother undertake a course of counselling directed to parenting adolescents and young adults, and provide a certificate of completion to the father’s solicitors.

8. The order for the appointment of the independent children’s lawyer be discharged.

9. There be no order as to costs.

10. All extant applications otherwise be dismissed.

11. 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 Attachment A and these particulars are included in these orders.

NOTATIONS

(A)Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

(C)The father advised the court that he intends to pay all of Y’s school fees and all costs associated with Y’s attendance at (omitted) School.

IT IS NOTED that publication of this judgment under the pseudonym Godwin & Glass is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4588 of 2008

MR GODWIN

Applicant

And

MS GLASS

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for parenting orders in respect of X born on (omitted) 2000 (“X”) and Y born on (omitted) 2000 (“Y”).  X and Y are twins aged 16 years and 10 months.

2. The mother is 54 years old and the father is 47 years old.  They had a brief relationship that resulted in an unplanned pregnancy and the birth of X and Y on (omitted) 2000.  X and Y lived with their mother from the time of their birth.

3. The mother applied to the court on 30 November 2000 for child support and birthing costs.

4. X and Y began spending time with their father in 2006, in circumstances where the mother lived in Melbourne and the father lived in (omitted).  At that stage, the mother did not permit X and Y to spend time at their father’s home and did not permit them to have overnight time with their father.

5. In 2007, the father attempted, through a mediation process, to spend more time with X and Y, including overnight time and including time in his home.  However, the mother declined to participate in the mediation.

6. In 2008, the father attempted to negotiate a parenting plan with the mother, via the maternal grandfather, who is a (occupation omitted).  (He appeared as the mother’s advocate at the trial of the present proceeding).  It seemed that agreement had been reached, but the mother declined to sign the proposed parenting plan.

7. Although, in general, the mother continued at this stage to prohibit X and Y spending time at their father’s home and continued to prohibit them spending overnight time with him, she did allow both of those things on an ad hoc basis for a week at a time if she happened to be overseas or otherwise busy.

8. On 21 May 2008, the father applied to this court for regular time with X and Y, including on school holidays, and without a restriction on X and Y spending time with him at his home.  Final orders were made by consent on 19 August 2008, which provided for equal shared parental responsibility and for X and Y to spend every third weekend and time on school holidays with their father.

9. On 30 June 2010, the father applied to this court for X and Y to live with him.  Two notifications were made to the Department of Human Services at around this time in respect of X and Y but the Department did not become actively involved with them.  A family report was prepared by Dr J.  The court ordered the parties to be psychiatrically assessed by Dr T.  Following the psychiatric assessment, final orders were made by consent on 27 June 2011.  The orders provided for:

   a)the parents to have equal shared parental responsibility for X and Y;

   b)X and Y to live with their mother;

   c)X and Y to spend time with their father on alternate weekends and half school holidays;

   d)X and Y not to be left unsupervised;

   e)the parents not to discuss the proceedings or denigrate each other in the presence of X or Y;

   f)the parents not to use X or Y as messengers;

   g)the parents not to contact each other except in limited circumstances and then only by SMS or email;

   h)the mother to ensure that X and Y attended school punctually;

   i)the parents to take X and Y to Ms L for therapeutic counselling;

   j)the family report of Dr J and the psychiatric assessment of Dr T to be provided to Ms L;

   k)the mother to receive treatment from a psychiatrist by the name of Dr E and for Dr E to be provided with the reports of Dr J and Dr T; and

   l)the mother to authorise her psychiatrist to provide to the father’s solicitors by March 2012, a letter confirming her attendance and engagement in treatment.

10. On 5 June 2013, the father filed another application for X and Y to live with him.  At the first court date on 17 July 2013, Judge Bender ordered a further family report from Dr J.  The mother did not participate in the process, and Dr J was unable to provide a complete report.  At the second court date, on 27 September 2013, Judge Bender ordered the mother to attend for psychiatric assessment for a second time by a psychiatrist nominated by the independent children’s lawyer and ordered a further family report under the auspices of the child dispute resolution services of this court.

11. On 27 November 2013, the father filed a notice of discontinuance, he says, because of ongoing harassment and bullying by the mother and the maternal grandfather, the disruption caused by the proceeding and the delay in the matter progressing.

12. On 23 December 2013, the mother filed an application for costs in relation to the discontinued proceeding. The father then applied to reinstate his application.  On 5 March 2014, Judge Bender reinstated the father’s application filed on 5 June 2013 and again made orders for the mother to be psychiatrically assessed for a second time.

13. Dr T provided a second psychiatric assessment of the mother on 5 May 2014.  Ms P prepared a family report that was released on 13 May 2014.

14. On 27 June 2014, final orders were made by Judge Baker largely by consent.  The orders made by consent provided for:

    a)the parents to have equal shared parental responsibility for X and Y;

    b)X and Y to live with their mother;

    c)X and Y to spend alternate weekends and half school holidays with their father;

    d)the parents to be restrained from arranging social or sporting events for X and Y while X and Y were spending time with the other parent;

    e)the mother to be restrained from organising more than one primary sporting activity each term, without the consent of the father;

    f)the mother to allow the children to attend a sporting event in (omitted) in summer (where the father lives);

    g)each parent to allow X and Y to take their personal possessions to the other parent’s home;

    h)the parents to be restrained from enrolling X and Y at a school without the consent of the other;

    i)the parents not to approach each other at any sporting activity; and

    j)X and Y’s passports to be held by the father’s solicitors.

15. The orders made not by consent were:

    7(a).[Notwithstanding] Order 7 herein, the Mother be and is hereby restrained from organising skiing for the children, or either of them, during the Father’s time pursuant to these Orders.  Skiing is deemed not to be a primary sport for the purposes of this Order.

    …

    13.That in the event the children receive an invitation or a request to attend at a social event during the Father’s weekend time, the Mother shall immediately advise the Father in writing of the details of the social event AND THE FATHER SHALL WITHIN 24 HOURS NOMINATE;

    a.If he is taking the child to the social event; OR

    b.If he shall exercise make up time the weekend immediately following and in such event such time shall take place at the same times on the following weekend.

    14.    That the social event in paragraph 14 (sic) above shall not:

    a.Be a social event of the maternal family; AND

    b.… occur more than one weekend per month on average.

16. By 2015, Y’s academic progress had begun to suffer.  He was often absent from school, late, and disorganised, and sometimes did not submit work.  This coincided with Y saying he wished to live with his father.  In December 2015, the mother proposed that Y live with his father for a six month trial period.  The father agreed and the trial period commenced in December 2015.  X remained living with her mother.

17. On 10 February 2016, by consent, Y started year 10 at (omitted) School in (omitted).  By May or June 2016, X was no longer spending time with her father.  Y stayed at (omitted) School for the remainder of 2016, and continued living with his father for the remainder of 2016.

18. On 1 September 2016, after the parent-teacher interviews, there was an incident between Y and his mother which is described in more detail below.  After that incident, Y refused to have contact with his mother.

19. On 30 January 2017, two days before the start of school, the mother told the principal of (omitted) School that he should not accept Y’s enrolment for year 11, as she did not consent to it.

20. On 31 January 2017, the day before school was to commence, the mother attended (omitted) School and again told the principal that Y should not be enrolled in that school in 2017.  The school contacted the father on 31 January 2017 and told him that Y could not resume at the school unless and until court orders were made.

The commencement of the current proceeding

1. The father issued the current application on 1 February 2017, on the day that Y was supposed to start year 11.  The parties had a mediation on 3 February 2017.  It was unsuccessful.  The first return of the matter was brought forward to 13 February 2017.  By that time, Y had missed the first two weeks of year 11, which is the first half of VCE.

2. The father, in his initiating application filed on 1 February 2017, sought orders for:

   a)equal shared parental responsibility, save in relation to education;

   b)Y to live with him and spend time with his mother in accordance with his wishes;

   c)X to live with her mother and spend time with her father in accordance with her wishes;

   d)the father to make decisions in relation to Y’s secondary education;

   e)the mother to make decisions in relation to X’s secondary education.

3. The mother filed her response on 13 February 2017 in court.  She sought orders for:

   a)her to have sole parental responsibility for both X and Y;

   b)X and Y to spend time with their father in accordance with their wishes;

   c)the parents to enrol Y at (omitted) School as a full boarder with the father to bear all of the costs of Y’s attendance;

   d)a child support departure, requiring the father to pay all school fees and private health insurance premiums and other health expenses for X and Y; and

   e)the father to forgive all child support arrears and penalties owed to him by the mother (approximately $2,500).

The first return

1. On 13 February 2017, at the first return of the matter, the court made orders by consent until further order for:

   a)X to live with her mother;

   b)X to spend time and communicate with her father in accordance with her wishes;

   c)Y to live with his father;

   d)Y to attend (omitted) School at the father’s sole expense; and

   e)Y to spend time and communicate with his mother in accordance with his wishes.

2. In addition, orders were made for a private family report, appointing an independent children’s lawyer and setting the matter down for trial on 29 October 2018.  As another matter settled, the trial was brought forward to 13 June 2017.

The family report

1. Ms S prepared a privately funded family report dated 27 February 2017.  Ms S made the following recommendations:

   1.Mr Godwin should retain sole parental responsibilities for Y while he lives with him and Ms Glass should retain sole parental responsibilities for X while she lives with her.

   2.It is recommended that Y remains living with Mr Godwin and X remains living with Ms Glass.

   3.Y should be supported to attend (omitted) for the duration of his VCE education while he lives with Mr Godwin.

   4.Time between Y and Ms Glass should occur in consultation with him and according to his preferences.

   5.Time between X and Mr Godwin should occur in consultation with her and according to her wishes.

   6.X should be encouraged to attend for psychological counselling.

   7.Ms Glass should consider attending counselling with a focus on parenting adolescents / young adults.

2. In relation to family violence, Ms S said:

   2.No allegations of family violence were reported at interview. Mr Godwin sought an Intervention Order (IVO) against the mother prior to the birth of the children due to what he referred to as her “constant harassing behaviour” and disruptive and unpredictable conduct”. Mr Godwin’s wife sought an IVO in recent times but withdrew the application. There are no IVOs currently in place.

   3.Ms Glass filed a Notice of Risk. She alleged that the child Y has suffered emotional abuse due to the father and his wife’s “denigration of the mother”, them impeding Y from spending time with her and subjecting Y to “inappropriate and denigrating discussions”. Mr Godwin has alleged that Y is at risk of psychological harm due to the mother’s chaotic and unpredictable personality and conduct. Child Protection has not had cause to be actively involved with the family members.

3. In her introduction, Ms S said:

   4.At interview Y reported feeling anxious and fearful of his mother’s erratic and volatile personality and [described] her behaviour [as] “unpredictable… mood changes angry… meltdowns… historically locked us outside of the house naked… she’s threatened us with knives before”. Y spoke of the incident following parent / teacher interviews in September 2016 when his mother drove in a dangerous manner and refused to let him out of her car. After he “escaped” she pursued him on foot and in her car. Ultimately the police were called and Y was permitted to return to his father’s home. Y reported feeling anxious and scared at the time.

   …

   6.… By choice, neither child currently spends time with the other parent or their sibling [though they occasionally communicate via social media].

4. Ms S noted that there was no active dispute concerning X, as the parents agreed that she should continue living with her mother and should continue attending a state school in Melbourne.

5. Ms S said the following in relation to her interview with the mother:

   16.Ms Glass (aged 53 years) presented as a confident and self-assured woman who held firm views and opinions. Ms Glass has lived with the children in a home in (omitted). She works full time but flexible hours in a (omitted) business. She has been involved in a relationship for the last twelve months but does not live with her partner. Ms Glass impressed as a concerned parent and she seemed familiar with Y’s and X’s character and their interests. Ms Glass was critical of Y’s decision to live with Mr Godwin and she questioned his maturity and capacity to make informed decisions. She did not question X’s maturity or capacity to make good decisions. Ms Glass spoke of her significant involvement in the children’s early care and upbringing and she was critical of the father’s absence in the children’s formative years. Ms Glass was critical of what she experienced as Mr Godwin’s unwillingness to communicate with her and make joint decisions in relation to Y, his living arrangement and school attendance.

   17.According to Ms Glass, Y should live with her and X and spend time with Mr Godwin on alternate weekends. She opposed Y living with Mr Godwin and attending school in (omitted). Ms Glass maintained “I want Y to be happy”. She portrayed Y negatively throughout the assessment interview as immature and self-interested. She accused him of being “snobby… aspirational… (and) …not able to make good decisions”. Ms Glass wanted Y to be required to consider attending [school] in Melbourne or boarding school in (omitted). Ms Glass did not show insight into or understand about the importance of supporting Y to commence Year 11 and complete his VCE studies without stress and / or interruption. Ms Glass maintained that her opposition to Y continuing at (omitted) was related to an identifiable lack of academic progress at the school “I don’t think he’s benefitted (from attending (omitted)) he’s happy but not necessarily from being at that school”. Ms Glass was unable to provide compelling evidence to support her view.

   18.In a circular manner Ms Glass blamed Mr Godwin and Y for the current dispute in the court “I don’t think we should be in court”. Ms Glass suggested that Mr Godwin should communicate with her more and they should make joint decisions concerning Y. Ms Glass believed that Mr Godwin had illegitimately usurped her position of power and authority over Y “I was still the custodial parent and Mr Godwin wouldn’t come to meetings with me”. She maintained that Mr Godwin had turned Y against her “it’s a story of indoctrination / alienation… poison and venom… there’s a rift… he’s (Y) of the view that I’m unwell and he won’t talk to me until I’m better”. Ms Glass was critical of Mr Godwin “he says I should be more generous and support Y to be there”. According to Ms Glass “I’ve been scuttled into leaving him there… the father has gone out of his way to make life difficult for all of us”. While Ms Glass understood “Y wants to go to school at (omitted) and stay with dad” she remained opposed to this outcome claiming that Y’s reasons lacked substance “he’s besotted by Aussie rules football… in my view he’d be better off trialling another school”. According to Ms Glass if Y remained living with Mr Godwin and attended school in (omitted), her relationship with him would become increasingly distant and estranged. Ms Glass shared “I want the judge to tell Y to live with me… I’ve been the parent”. Overall, Ms Glass’ proposals presented as reactionary, self-interested and not focussed on Y’s interests.

   19.In relation to X, Ms Glass identified a close and loving relationship. She referred to a distant relationship having been formed between X and Mr Godwin “no contact with her father and Y since 2016… previously there was little contact”. Ms Glass attributed the strained relationship to an apparent favouring by Mr Godwin to Y and a disregard for X, especially financially. Ms Glass shared “we’ve tried… we’ve asked and he’s refused to assist with (hobby omitted) fees and braces”. According to Ms Glass, “X has had enough… it’s a waste of time”. Ms Glass was opposed to the making of Court Orders relating to X, she believed X was of an age and with sufficient maturity to … make her own decisions about spending time with her father “X is diligent, organised and dedicated… she has an enormous amount of depth and maturity… she knows what she wants”. Ms Glass was adamant that X was not seeking to resume a relationship with Mr Godwin “because she knows she doesn’t have his support… they don’t have that strong bonding”.

1. Ms S said in relation to her interview with the father:

   31.Mr Godwin (aged 47 years) attended with Y. Mr Godwin presented as a polite and respectful man who engaged readily at interview. Mr Godwin was reluctant to come into contact with Ms Glass on the day of interviews. Mr Godwin was respectful about Ms Glass and he acknowledged her input into parenting the children in their early years. Mr Godwin spoke of the children with affection and understanding. According to Mr Godwin, “Y asked if he could live with me… he’s old enough… he was struggling at school… we said yes”. Mr Godwin spoke positively of the blended family arrangement with his partner Ms B and her children. He was confident that the move was consistent with Y’s wishes and in his best interests.

   32.Mr Godwin was prepared to support Y’s decision making. Mr Godwin assured “Y is free to stay with us or return to Melbourne if he wants… because of what happened with school, I had to go to court so he could be enrolled and attend school… VCE is important”. According to Mr Godwin it was not his intention to aggravate Ms Glass, he presented as genuinely motivated to act in Y’s best interests and according to Y’s expressed views and wishes.

   33.With regards to X, Mr Godwin showed compassion and understanding. He was supportive of X’s expressed preference to live with Ms Glass. Mr Godwin offered “no pressure… live with her mum… it’s what she wants… there is no pressure for X to live with me… no pressure ever”. Mr Godwin said “X is old enough to make her decisions… I know she has friends in Melbourne… she has no desire to live in (omitted)… I accept her wishes”.

   34.Mr Godwin wanted to enjoy a relationship with X, he wanted her to feel free to contact him. Mr Godwin shared “I worry about X a lot… at the moment she is under a lot of pressure and she can’t talk with me and I accept that”. Mr Godwin sought to reassure X “I love you… my door is always open and you can contact me or Ms B at any time… I’d love to see you and spend [time] with you… but if you are in a positon where you can’t I understand”. Mr Godwin hoped that X could be linked with mental health services either at school or in the community to assist her through VCE and in her living arrangements.

   35.Mr Godwin indicated that he would consider X’s request for financial support relating to her schooling / (hobby omitted) activities.

2. Ms S said in relation to her interview with X:

   20.X arrived with her mother. X impressed as a confident, articulate and independent young woman. X was assessed as being of an age and with sufficient developmental maturity to have her views and opinions about living arrangements taken into account. X assured that her views were independently formed and not due to the overt influence of her mother.

   21.X spoke of her experience of family law proceedings “it’s frustrating because it’s usually about Y… he’s always had more attention”. X was unsupportive of Y’s situation and she did not wish to be drawn into conversation about her brother “I’m over it… I’m over the fact that it’s all about Y… we clash a little… I get annoyed with him and I don’t want to talk to him”. X was critical of her brother “he’s very materialistic”. According to X “at the moment I don’t miss him… I’m sick of hearing all about him… I’d like to catch up with Y but at the moment it doesn’t feel right… it feels forced… it’s not natural and easy”. X was confident that if and when she and Y sought to reconnect and spend time together then they could connect over social media and organise to catch up.

   22.With regards to her relationship with her father, X was clear “I’m not ready to reconnect with dad and Ms B… if and when I am ready I will let him know”. X requested that a message be passed onto her father “I’d like him to contribute to (hobby omitted)”. X remembered being “embarrassed… humiliated” when she was unable to join the (hobby omitted) team due to unpaid fees. X spoke of experiencing sufficient frustration which impacted on her emotional health “I get so sad… I get so exhausted”. X did not want to overburden her mother but she agreed to consider attending upon a mental health professional to assist her to explore and validate her emotions and identify coping strategies for when she is under stress.

   23.At the conclusion of her interview, X sought to be permitted to leave so she could attend at school. X did not engage further at interview.

3. Ms S said in relation to her interview with Y:

   25.Y impressed as a well-mannered and socially engaging young man. He shared his views in a mature, reasoned, articulate and self-assured manner. Y was assessed to be a truthful person who was of an age where his views and opinions were assessed to be independently formed and uninfluenced by the preferences of others. Y’s views and opinions should be taken into consideration in outcomes that affect him.

   26.Y spoke of historical difficulties he experienced living with his mother “the home environment has been pretty bad… unhygienic, unkempt… dirty dishes… (and) …she’s unpredictable… her changing moods… angry, having a meltdown… she’d do psychological things… when we were little… she locked us outside the house naked… she’d threaten us with knives… she’d leave us alone at home, mum was out a lot… she’d work late and we’d have to get our own dinner”. According to Y, his mother was “intimidating and manipulative… especially if challenged and doesn’t get what she wants… she gets aggressive and angry”.

   27.Y remembered Ms Glass intimidating him and X “especially in cars… she would be a very aggressive driver… threaten to kill us… run red lights, speed… pretend to swerve into a tree”. Y shared … “her treatment of us used to depend on a day to day basis… I used to be very scared of her… not knowing what she’d do next”. Y spoke of his mother’s capacity to present well to her benefit “she’s a lot different at home… compared to when she uses me to make friends”.

   28.Y identified a fractured relationship with his mother. He referred to the incident after parent / teacher interviews “I was scared… distraught and upset”. Y has since lost respect for his mother “after the car incident and then what she did with school… she harangued school and then I couldn’t go”. Y was adamant “I don’t want to meet with her… I don’t want to talk with her because of the things she’s done in the past and recent past”. Y was frustrated by his mother’s conduct “she can’t acknowledge what she’s done… doesn’t acknowledge what she’s done is wrong and I’ve had enough”. Y said “I used to miss her and now I don’t because of what she did with school… this is the first time I’ve been so angry with her”. Y shared “I used to want her to get help, I still do, for X”. With regards to his sister, Y suggested “I’m happy to see X in Melbourne… on her own and not at mums and not with mum”. Y was unwilling to spend time with X if Ms Glass was present “I need to hold my ground or she’ll get away with it (her behaviour)… (and)… I’m scared I’ll be dragged back into her world”.

   29.Y confidently and articulately sought to inform the judge “I want to live with dad and Ms B and go to school at (omitted) School”. Y continued “I want her (Ms Glass) to respect my wishes”. Y stressed “I’m happy and settled at school… I have a good friendship base… good relationships with the teachers and I’m enrolled in subjects I want to do”. Y said he was playing football [for the] “(omitted)” with friends from school and he was working part time at a (employer omitted). Y felt happy, safe and settled in his father’s care. Y repeated “I’m happy and well looked after by dad and Ms B… I want to live with dad”.

   30.Y felt well supported by his father. He dismissed any notion that Mr Godwin and / or Ms B were influencing his views and opinions “dad and Ms B do not speak bad of mum… they give me advice, not to influence me but to help me explore options and deal with the situation”. Y felt supported “especially after coming out of an environment with mum where I used to be really scared because I didn’t know what she’d do next”. Y was adamant “I want to live with dad… I do not want to see or talk with mum at the moment”.

4. In her evaluation, Ms S said:

   37.… VCE is a significant education period for students. Both Y and X need to be able to attend school without stress and interruption. ...

   38.Y’s current reluctance to speak with and spend time with his mother is understandable in the circumstances. Time between Y and Ms Glass should occur in consultation with Y and according to his preferences. Unless Ms Glass can show some insight into the impact of her behaviour and make modifications, there is a risk that her relationship with Y will remain strained. Until she can be more supportive of Y’s decisions their relationship will not likely recover and will continue to be estranged. Ms Glass should consider engaging in counselling to assist her with strategies to modify her behaviour. If and when Y seeks to recover a relationship with [his] mother, there is confidence that he will initiate contact with her in the future.

   39.… Ideally Mr Godwin will consider how he could financially support his daughter through her VCE years. Hopefully X and Y will reconnect in the future and resume spending time together. It is suggested that X would benefit from attending counselling support to assist her explore and validate her experience of family life and simultaneously provide her with support while she progresses through VCE.

The second return

1. The matter returned to court on 22 March 2017.  On that occasion, the court made various procedural orders, brought forward the final hearing, and dismissed the mother’s application for her child support departure application to be dealt with in this court.

Orders by consent

1. At the trial, the parties agreed to orders by consent as follows:

   (1)     All previous orders in relation to the children Y born (omitted) 2000 and X born (omitted) 2000 be discharged.

   (2)Y live with his father.

   (3)X live with her mother.

   (4)Y spend time with and communicate with his mother in accordance with his wishes.

   (5)Y complete secondary school at (omitted) School.

   (6)X spend time with and communicate with her father in accordance with her wishes.

   (7)X complete secondary school at (omitted) School.

   (8)The mother and father facilitate Y and X spending time together as arranged by Y and X, such time to include but not be limited to:

   (a)social media, Skype, telephone or other electronic communication; and

   (b)     face to face time;

   with such time to be encouraged and facilitated by the mother and father.

   (9)The parents be at liberty to obtain information from X and Y’s respective schools including but not limited to school notices, school reports and school photograph forms.

   (10)The parents keep the other informed of any significant medical illness suffered by X or Y and provide information to each other and consult with each other prior to X and Y receiving medical treatment and/or psychological treatment or undergoing surgery except in the case of an emergency.

   (11)The parents notify each other of any change of address, telephone number and email address within 24 hours of such change.

   (12)The parents by themselves, their servants and/or agents be and are hereby restrained from discussing any matters pertaining to these proceedings with or in the presence or hearing of the children.

2. The parties also agreed that the court should add a notation to the orders saying that:

   The father advised the court that he intends to pay all of Y’s school fees and all costs associated with Y’s attendance at (omitted) School.

Proposal of the father and independent children’s lawyer

1. In addition to the proposed consent orders, the father and the independent children’s lawyer proposed the following orders:

   (1)The father have sole parental responsibility for Y.

   (2)The mother have sole parental responsibility for X.

   (3)The mother, and her servants and/or agents, including the maternal grandfather, be and are hereby otherwise restrained from communicating with Y in any manner or form or coming within 5 metres or Y unless Y instigates such communication or such time.

   (4)The order for the appointment of an Independent Children’s Lawyer be discharged.

   (5)All extant applications otherwise be dismissed.

Proposal of the mother

1. In addition to the proposed consent orders, the mother proposed the following orders:

   (1)     The Mother and Father have equal shared responsibility for Y and X.

   (2)Y be at liberty to live with whoever he chooses.

   (3)X be at liberty to live with whoever she chooses.

   (4)In the event that either child needs to change schools, the consent of the other parent will not be unreasonably withheld.

   (5)Each parent be at liberty to attend any school event that a parent would normally attend.

   (6)The parents notify each other of any change of the children’s contact details.

Issues in dispute

1. Consequently, the issues in dispute were:

   a)parental responsibility;

   b)whether the mother and her servants and agents should be restrained from communicating with Y or coming within five metres of him unless Y has instigated the contact;

   c)whether X and Y should be at liberty to live with whoever they choose;

   d)whether, in the event that the court ordered equal shared parental responsibility, the court should order that the consent of a parent to a change of school should not be unreasonably withheld;

   e)whether each parent should be at liberty to attend school events that parents would normally attend; and

   f)whether the parents should notify each other of any change in X and Y’s contact details.

The evidence

1. The father relied on:

   a)his amended application filed on 15 May 2017;

   b)his affidavit sworn or affirmed on 20 February 2017;

   c)his affidavit sworn on 15 May 2017;

   d)the family report of Ms S annexed to an affidavit of Ms S affirmed on 5 April 2017;

   e)an outline of case filed on 8 June 2017; and

   f)a notice of risk filed on 1 February 2017.

2. The mother relied on:

   a)her amended response filed on 7 June 2017;

   b)her affidavit sworn on 6 June 2017;

   c)her affidavit affirmed on 11 February 2017; and

   d)her outline of case filed on 13 June 2017.

3. The independent children’s lawyer relied on:

   a)the family report of Ms S annexed to an affidavit of Ms S affirmed on 5 April 2017;

   b)a report from the Department of Health and Human Services dated 13 February 2017; and

   c)an outline of case filed on 13 June 2017.

The oral evidence of Ms S

1. In her oral evidence, Ms S said the following:

   … there was a fractured relationship [between the mother] and Y….[1]

   [1] Tr. p.201, ln. 42-43

   …

   [The mother said], “He’s refusing to talk with me.”  The mother then went on to be quite derogat[ory] about Y.[2]

   [2] Tr. p.202, ln. 7-8

   …

   [The mother spoke of his] hostility, his lack of relationship, [and said] he’s disloyal, he’s shallow, he’s materialistic.[3]

   [3] Tr. p.202, ln. 10-11

   …

   … Y was quite articulate about his father and stepmother not denigrating him and influencing his views of the mother.  Y was quite clear that his reported views and experience were his own, not influenced by others.[4]

   [4] Tr. p. 202, ln.30-33

   …

   Y is of an age and with sufficient developmental maturity to be consulted.  He’s too big.  He’s too old.  You can’t force him to do anything at this age.[5]

   [5] Tr. p.210, ln. 41-43

   …

   [When asked whether she thought it should be “just what Y says”, notwithstanding that the mother had parented him for 15 years] Yes, I do, ….  If that relationship was strong enough, it will recover and repair in due course.  It may be when he’s 18, it may be when he’s 20, it may be when he’s 30, but it will recover.  He’s a good kid.[6]

   [6] Tr. p.210-211, ln. 45-47 and 1-2

   …

   … My recommendations are not dividing the family, they’re empowering Y and empowering X.[7]

   [7] Tr. p.211, ln 27-29

   …

   … Meaningful relationships between parents and children – at this age, we’re talking about adolescents, almost young adults.  I think that Y’s and X’s happiness, their security, their mental health and emotional development at the moment has to be prioritised over forcing them to spend time with the other parent.[8] (emphasis added)

   [8] Tr. p. 211, ln. 33-36

   …

   … Developmentally, if Ms Glass can’t support Y to be … autonomous from her and allow him to grow as a young man and if she pursues him, he will distance himself even further, and that would be a sad outcome.[9] (emphasis added)

   [9] Tr. p.212, ln. 29-32

   …

   X informed that she had a history of sadness, being really sad, the cutting, self-harming.  The mother also said that she – X had had that history.  X expressed to me that she was really sad.  She said she wasn’t cutting, but in VCE years the pressure can escalate.  In the context of ongoing litigation with the family, increased anxiety, then I would – it would be a preventative measure.[10] (emphasis added)

   …

   I think in the context of this family dispute the mother’s pursuing of Y is pushing him further away.  He’s nearly 17.  He needs to be permitted to be autonomous and … be supported to make his own decisions.  My concern would be if the mother can’t modify her approach with Y that their relationship will continue to be damaged further.[11] (emphasis added)

   …

   [When asked what perils, if any, could arise in relation to Y if he feels that his wishes have been ignored] The perils for Y would be increased.  He could become angry.  He could withdraw.  He could act out.  He could … self-harm.  So these are perils.  These are unknowns.  But if he is not given an opportunity to settle and relax without [the] stress of proceedings, it will affect his short-term memory.  He studies.  Under high anxiety your memory is affected.  You don’t retain a long-term memory.  His VCE will falter.  … they’re tough years.  He needs to be supported to get through his VCE years with minimal stress.[12] (emphasis added)

   …

   … both X and Y were interesting.  They have a level of cognitive maturity and independence about them … I think X is probably struggling.  She’s angry with her father, and she’s angry with Y, because it feels to her that it’s all about Y.  She wants her father’s support financially.  She … made that quite clear.  So did the mother, in relation to (hobby omitted) and extracurricular activities.  … she will process what this is about for her in years to come.  Again, at the moment, she’s doing VCE.  This is an issue about her relationship with her father that she will need to face at some point, but not now.  Now she has got … to be supported to get through VCE.  When she’s ready to reconnect and deal with her issues with her father, then she will.[13] (emphasis added)

   …

   [When asked whether there is anything that the father could do at the moment to reassure X that he is available to her, and that he does care] It’s really tricky … at their age … in all honesty, I think I said to the father at interview that the best thing he [could] do is pay for her (hobby omitted), if that’s what … she wants, … to show he heard her ...[14] (emphasis added)

   [10] Tr. p.215, ln. 3-7

   [11] Tr. p. 215, ln. 24-28

   [12] Tr. p.216, ln. 19-26

   [13] Tr. p.217, ln. 11-21

   [14] Tr. p.217, ln. 23-30

Other reports

1. The father and the independent children’s lawyer at one point indicated that they wished to rely on family reports and psychiatric assessments prepared for the earlier proceedings regarding X and Y.  However, ultimately, they did not rely on the historical reports, except that, in cross examination of the father, counsel for the independent children’s lawyer referred to a memorandum dated 26 April 2014 that the mother had provided to Dr T and which detailed her criticisms of the father under the following headings:

   (1)antisocial behaviour

   (2)inconsistency

   (3)depression and mood swings

   (4)suicidal episodes, self-pity, lack of self-worth

   (5)victim mentality

   (6)emotional abuse of children

   (7)constant anger and overreaction

   (8)inability to work with others

   (9)alcohol abuse

   (10extreme jealousy

   (11)wants all the rights but not the responsibilities.[15]

   [15] Tr. p.134, ln. 28-32

1. The father said in his oral evidence that Dr T had told him about the things that the mother had said about him by reference to those headings.  The mother said in oral evidence that she had forgotten about that list until it had been mentioned in the father’s evidence, but did not dispute that she had provided it to Dr T or that it contained criticisms of the father under the 11 headings listed above.

Best interests of the child

1. Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)          to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

   (4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

2. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

3. Section 60CC(1) of the Act relevantly provides that:

   Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.

4. Subsection 60CC(2A) provides that:

   In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   I will address the relevant considerations in order.

Section 60CC(2)(a)           the benefit to the child of having a meaningful relationship with both of the child’s parents

1. In general, children benefit from having a meaningful relationship with both of their parents.  However, the sad fact in this case is that the relationships between X and her father, on the one hand, and Y and his mother, on the other hand, have deteriorated to such an extent that there is no realistic possibility of those relationships being restored in the short-term.

2. The problem is exacerbated by the fact that X and Y are both doing year 11 at present.  They need to be spared the emotional difficulty of attempting to re-engage with their estranged parents while they are at such a stressful and significant stage of their education. Having said that, it is to be hoped, and Ms S considers it to be likely, that X and Y will each be able to re-engage with the parent from whom they are estranged at some point in the future.

Section 60CC(2)(b)           the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. X obviously is suffering, or has suffered, psychological harm as she has self-harmed by cutting herself.  It was not explained to the court what the cause of her psychological distress might be.  One possibility that springs to mind is that she feels rejected by her father, who has given a home to Y and pays his private school fees, but will not pay for X’s (hobby omitted) or dental work.  Another possibility is that the mother is herself psychologically aberrant in some way, and that is impacting on X.  These are mere speculations, however.  The evidence does not allow the court to form any conclusions on the cause of X’s very serious psychological difficulties.

2. It is noteworthy that neither of the parents nor the independent children’s lawyer proposed specific orders for X to receive professional psychological assistance, even though Ms S recommended that X be encouraged to attend psychological counselling.

3. The mother has subjected Y to potential physical harm during the incident in September 2016, following the parent-teacher interviews.  The mother said that, while she was driving Y home to his father’s place, Y said to her that he understood that she had fallen pregnant with the assistance of reproductive technology.  The mother described that as a malicious comment, which carried the implication that the mother was inadequate and deceptive.  The mother said the comment was hurtful, inappropriate, fanciful and untrue.  The mother said that she was shocked at how disrespectful Y had become, and she told him that she was taking him back to Melbourne immediately.  The mother said that Y undid his seat belt, and opened the car door, looking as though he would jump out.  The mother said that Y said that he had to go to school (in (omitted)) the next day.  The mother said she told him to put his seat belt back on and that he had a perfectly good school to go to in Melbourne.  The mother said she had to stop the car, Y jumped out and he hid from her.  The mother said she called the police.  The mother said Y telephoned home and his step-mother collected him.  The police interviewed the mother but took no further action.  The mother claimed that at no time was Y at risk of harm from me but conceded that she should have handled the situation differently.

4. The mother did not say what she should have done differently.  However, it is obvious that she overreacted.  It is difficult to understand why the mother would have thought that a comment that she had conceived with the assistance of reproductive technology was malicious.  Assistance with reproductive technology is a common intervention, and it involves no criticism of anyone.  The comment, even if entirely false, did not warrant the mother saying that she was taking Y back to Melbourne and implying that he would have to go back to his old school.  It was a ridiculous escalation of what could have been a calm, relaxed and enjoyable interaction between mother and son.

5. The mother was quite wrong to say that she did not put Y at risk of harm.  On her own evidence, she made Y feel like jumping out of a moving car, which is obviously very dangerous.  She also put him in a position where he felt the need to run off and hide from her.

6. On the father’s evidence, the incident was much worse, with the mother driving erratically and Y fearing for his life, and feeling anxious and scared.  I prefer the father’s evidence on this point.  It is largely consistent with the mother’s own evidence and is otherwise very plausible.  The father has described what Y could have been expected to have felt, based on the mother’s own evidence.  It is noteworthy that the mother did not acknowledge in her evidence how her actions might have made Y feel.  One wonders whether she has the capacity to appreciate the impact of her words and actions on other people.

7. Y also recounted to Ms S that the mother sometimes threatened him and X with knives, locked them outside the house naked, and had meltdowns and unpredictable mood swings.  The mother conceded that she made Y stay on the porch in his underwear for 20 minutes on one occasion because he was misbehaving terribly.  All of this amounts to abusive behaviour on the mother’s part.  While children’s behaviour does need to be managed, it is obviously better to guide them gently than to make them feel rejected.

8. The father recounted a litany of extreme and irrational behaviours on the mother’s part, commencing before X and Y were born, which the mother did not challenge.  I accept the father’s evidence on this point.  The mother’s behaviour included:

   a)telephoning the father at work and saying she was going to have him charged with murder for giving her and the unborn children HIV (when he did not have HIV);

   b)screaming at her grandfather (who represented the mother at the trial) during a round table conference; and

   c)calling Y a dumb fuckwit and a cunt during telephone contact.

9. This sort of behaviour by the mother is obviously the kind of thing that can lead to children suffering psychological damage.

10. Y also reported to Ms S that the mother often left him and X unattended, even when they were quite young, and they often had to find their own dinner.  I accept that evidence.  While life is no doubt very tough for single mothers, the mother’s conduct in leaving X and Y unattended when they were quite young amounts to neglect.

Section 60CC(3)(a)           any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. Counsel for the father referred to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005, which amended the Act in 2006. The Explanatory Memorandum stated the following in relation to children’s wishes:

   Paragraph 60CC(3)(a)

   54.The references to a child’s ‘wishes’ in paragraph 68F(2)(a) have been changed to references to a child’s ‘views’.  Paragraph 60CC(3)(a) now provides that in determining what is in a child’s best interests the court must consider, amongst other factors, any ‘views’ expressed by the child and any other factors that the court thinks are relevant to the weight it should give to the child’s ‘views’.

   55.The amendment recognises that a child may not necessarily want to express a ‘wish’ about which of his or her parents the child will live with or spend time with.  It is intended that ‘views’ will also capture a child’s perceptions and feelings, and will allow for any decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live with or spend time with.  It is intended that references to a child’s ‘views’ will not exclude a child expressing his or her ‘wishes’.

2. In R v R (2000) 155 FLR 29 at [44]; (2000) 25 Fam LR 712; (2000) FLC 93-000; [2000] FamCA 43, Nicholson CJ and Finn and Guest JJ said:

   It is quite clear that their Honours were not saying that if the child’s wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held reasons are departed from by the trial judge, it is apparent that good reason should be shown for doing so.

3. Y was very clear that he wanted to live with his father, attend (omitted) School and not see his mother at the moment.  Ms S said in paragraph 25 of her report:

   Y impressed as a well-mannered and socially engaging young man. He shared his views in a mature, reasoned, articulate and self-assured manner. Y was assessed to be a truthful person who was of an age where his views and opinions were assessed to be independently formed and uninfluenced by the preferences of others. Y’s views and opinions should be taken into consideration in outcomes that affect him.

4. That evidence was not effectively undermined.  I consider it is appropriate to give considerable weight to Y’s views, due particularly to his age, but also to the predicament in which he finds himself, being estranged from his mother while attempting to do year 11.

5. X said that she was not yet ready to reconnect with her father, would like him to contribute to (hobby omitted) and would connect with Y via social media when she was ready.

6. Ms S said in paragraph 20 of her report:

   X arrived with her mother. X impressed as a confident, articulate and independent young woman. X was assessed as being of an age and with sufficient developmental maturity to have her views and opinions about living arrangements taken into account. X assured that her views were independently formed and not due to the overt influence of her mother.

7. I accept that X’s views should be taken into account, and that they should in fact be given considerable weight, for the same reasons that Y’s views should be given considerable weight.

Section 60CC(3)(b)      the nature of the relationship of the child with:

(i)         each of the child’s parents; and

(ii)    other persons (including any grandparent or other relative of the child)

1. As discussed, Y is estranged from his mother, and, it appears, his maternal family and X is estranged from her father, and, it appears, her paternal family.

Section 60CC(3)(c)      the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)         to participate in making decisions about major long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)  to communicate with the child

1. The father, since at least 2006, has gone to considerable effort to participate in making decisions about major issues in relation to both X and Y, and to spend time and communicate with them.  Since mid-2016, however, he appears to have made very little effort with X, unfortunately.

2. The mother, throughout X and Y’s lives, has lived with them and participated in making major long term decisions in relation to them.  Since September 2016, however, she has been estranged from Y.  She has, in that time, made efforts to reconnect with him, though perhaps not efforts that were sufficiently sensitive to his perspective.

Section 60CC(3)(ca)     the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. Overall, both parents appear to have fulfilled their legal obligations to maintain X and Y.  I understand that the father has paid child support as assessed, and he is now paying Y’s private school fees.  The mother in her response, in effect, acknowledged that she owes about $2,500 in child support to the father.

2. There is a background issue about whether the father should be paying more child support than is currently assessed.  This is a matter for the Child Support Agency to determine.

3. There is also the question of whether the father ought to have paid for X’s (hobby omitted) and dental work.  Ms S said that, ideally, the father would consider how to financially support X through VCE.

4. In my view, while the father might not presently be legally obliged to pay for expenses such as X’s (hobby omitted) and dental work, it would probably help her to feel that her father cares for her if he did make a contribution to her (hobby omitted) and dental expenses.  That would be so, even if there has been some game playing by the mother in relation to X’s expenses.

Section 60CC(3)(d)           the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)         either of his or her parents; or

(ii)        any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The present situation is that each of X and Y are estranged from one of their parents and, consequently, their extended families on that parent’s side.  The situation is unlikely to change in the short-term, given that X and Y are presently focused on the tasks of adolescence, including completing their VCE.  Any attempt to compel X or Y to spend time with their estranged parent would probably be damaging, if not disastrous.

Section 60CC(3)(e)           the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. There is some distance between the parents in this case, the mother living in the (omitted) suburbs of Melbourne and the father living in (omitted).  However, that is not the real impediment to the relationships in this case.  The real impediments are the emotional reactions of the various individuals to the actions of the others.

Section 60CC(3)(f)       the capacity of:

(i)         each of the child’s parents; and

(ii)    any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. The parties agreed that Y has had anxiety, commencing three years ago, and also that he displayed some difficult behaviours three years ago.  It seems, from the fact that Y wished to leave his mother, and from the fact that he seems to be doing better now that he is with his father, that the mother did not handle Y’s anxiety and difficult behaviour particularly well.

2. The father appears to be well able to provide for Y’s needs at present, including his emotional and intellectual needs.  Unfortunately, he is not currently providing for X’s needs, except perhaps the minimum amount in relation to her financial needs.  Having said that, it seems that the father would have the capacity to provide for all of X’s needs in other circumstances.

3. The mother appears to be providing for most of X’s needs at present.  However, there is clearly a major issue with X’s psychological needs, given that she has a history of self-harming by cutting herself.  Ms S recommended that X be encouraged to attend psychological counselling.  It is disappointing that neither parent nor the independent children’s lawyer proposed an order to that effect.

Section 60CC(3)(g)           the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. This factor is not of any special significance in the present case.

Section 60CC(3)(h)           if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)    the likely impact any proposed parenting order under this Part will have on that right

1. This factor does not apply in this case.

Section 60CC(3)(i)       the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The father has demonstrated a good attitude to the responsibilities of parenting Y.  As discussed, he has perhaps not been as focussed on X in recent times as he could have been.

2. The mother has cared for X and Y single-handedly for most of their lives.  Except for her extreme and excessive behaviour at times, she has shown an appropriate attitude to the responsibilities of parenthood.

Section 60CC(3)(j)       any family violence involving the child or a member of the child’s family

1. The independent children’s lawyer submitted that the incident following the parent teacher interviews in September 2016 met the definition of family violence in s.4AB(1) of the Act. That subsection provides that:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

2. The independent children’s lawyer submitted that the mother’s behaviour on that occasion caused Y to be fearful and thus met the definition of family violence.  The mother maintains that there was no evidence of family violence.  However, the mother’s submission does not take account of the aspect of the definition which merely requires behaviour by a person that causes a member of his or her family to be fearful.  I accept that Y was fearful as a result of his mother’s behaviour following the parent-teacher interviews in September 2016.  It follows that I accept that there has been family violence as defined in this case.

Section 60CC(3)(k)      if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

(i)         the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)      any evidence admitted in proceedings for the order;

(iv)   any findings made by the court in, or in proceedings for, the order;

(v)     any other relevant matter

1. It was not suggested that there have been any family violence orders made in relation to this matter.

Section 60CC(3)(l)       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

1. It would be preferable to make the order that would be the least likely to lead to the institution further proceedings in relation to X and Y.  There have been proceedings in relation to them for most of their lives.  Hopefully, they will be able to get through the next year and a couple of months, and their VCE, without any further legal proceedings.

2. Having said that, it is not apparent what orders would be the least likely to lead to the institution further proceedings.  It really depends on the parents whether further proceedings will be instituted or not.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

1. I do not consider that there are any other relevant facts or circumstances.

Parental responsibility

1. Section 61DA of the Act provides as follows:

   (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

   …

   (4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. As noted above, the father and the independent children’s lawyer proposed that the father have sole parental responsibility for Y and the mother have sole parental responsibility for X.  The mother, after initially proposing that she have sole parental responsibility for X and Y, eventually proposed that both parents have equal shared parental responsibility for both of them.

3. The mother relied particularly on Goode & Goode (2006) 206 FLR 212; (2006) 36 Fam LR 422; (2006) FLC 93-286; [2006] FamCA 1346, where Bryant CJ, Finn and Boland JJ said:

   [43]Thus, in summary, when making a parenting order in relation to a child, the Court must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. The presumption however does not apply where there are reasonable grounds to believe there has been abuse of the child or family violence (s 61DA(2)) or, when making an interim order, the Court does not consider application of the presumption appropriate (s 61DA(3)). The presumption may be rebutted if the Court is satisfied that it would conflict with the child’s best interests (s 61DA(4)).

   …

   [65]In summary, the amendments to Pt VII have the following effect:

   1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and (2)).

   3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and (3)).

   4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   …

   8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11. The child’s best interests remain the overriding consideration.

4. In the present case, I have accepted that family violence as defined occurred in September 2016. That incident was between the mother and Y and did not involve X. However, that makes no difference. That is because s.61DA(2) of the Act provides that:

   The presumption does not apply if there are reasonable grounds to believe that a parent [ie, the mother] of the child [ie, X] … has engaged in:

   …

   (b)     family violence.

5. Because X’s mother has engaged in family violence, the presumption of equal shared parental responsibility has been rebutted in respect of X, even though the violence involved Y.

6. Nevertheless, it is still necessary for the court to consider whether equal shared parental responsibility would be in the best interests of X and Y or either of them.  In my view, equal shared parental responsibility is not viable in this case.  The parents have an extraordinarily fraught relationship.  They are incapable of communicating with each other in a reasonable and productive manner.  The history of repeated applications to the court is evidence of that.  Moreover, the parents themselves made it clear with their own evidence in the current proceedings that they are not able to deal with each other in a civil and productive manner.

7. The parents’ inability to communicate with each other is frequently cited in submissions to this court as a sufficient reason to order sole parental responsibility.  The rationale for that is obvious.  Equal shared parental responsibility requires the parents to consult with each other about major long-term decisions affecting their children.  Parents who cannot communicate with each other in a civil and productive manner will be unable to achieve anything by consulting with each other, and the attempt is likely to only generate more conflict.

8. The parents in this case have been unable to resolve long-term issues affecting X and Y, even with professional assistance in the form of mediation.  They have repeatedly applied to the court to resolve their differences.  They could not come to a reasonable accommodation earlier this year, even when it meant that Y missed the first two weeks of year 11.  For some inexplicable reason, the mother put forward in the bizarre proposal in her response, which she did not press at trial, that Y become a boarder at a school in (omitted).

9. In all the circumstances of this case, there is virtually no prospect of the parents being able to conduct themselves in the manner that equal shared parental responsibility requires.  Consequently, I consider that it is clearly in the best interests of X and Y that there be orders for sole parental responsibility.

10. As the parents and the independent children’s lawyer have consented to orders that X live with her mother and Y live with his father, it is obvious that it is in X’s best interests that the mother have sole parental responsibility for her and it is in Y’s best interests that the father have sole parental responsibility for him.

Consequence of the orders for sole parental responsibility

1. As there will be orders for sole parental responsibility, it is not necessary for the court to consider the mother’s proposal that, in the event that X or Y need to change school, the consent of the other parent not be unreasonably withheld.  The parent with sole parental responsibility for a child will be able to make the decision about which school that child attends without reference to the other parent.  Having said that, it is to be hoped that there is no need to change either X’s or Y’s school in the middle of their VCE.

Living with and time with orders

1. Where the parents have equal shared parental responsibility for a child, s.65DAA of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. In the present case, there will not be an order for equal shared parental responsibility. Therefore, it is not strictly necessary for the court to consider X and Y spending equal or substantial and significant time with each parent.

2. Moreover, in this case, the parents and the independent children’s lawyer have consented to orders for X to live with her mother and spend time with her father in accordance with her wishes and for Y to live with his father and spend time with his mother in accordance with his wishes.  It seems to me that those arrangements are in X and Y’s best interests.  Indeed, those arrangements are the only viable arrangements in the present circumstances of 16 year olds who are estranged from one of their parents.

3. Inconsistently with the proposed consent orders, the mother also proposed that X and Y be able to live with whoever they choose.  I do not consider an order along those lines to be in X or Y’s best interests.  What they each need at the moment is a period of stability to allow them to finish their VCE in peace.  An order permitting them to live wherever they choose would permit attempts to be made to entice them to live elsewhere.  Such attempts, of course, would be very disruptive for X and Y, and would not allow them to concentrate, as they need to, on their VCE.

Attendance at school events and so on

1. The father and the independent children’s lawyer proposed that the mother and her servants and agents, including the maternal grandfather, be restrained from communicating with Y in any manner or form, or coming within five metres of him, unless Y instigated such communication or contact.  The mother proposed that each parent be at liberty to attend any school event that a parent would normally attend.

2. I consider that it would be in X’s best interests for her father to be permitted to attend school events that a parent would normally attend, if X invites him.  Obviously, that would require some rapprochement.  Equally obviously, the father should make himself available but not apply any pressure.  It seems to me, having seen the father in the witness box, and in view of all of the evidence in this case, that the father is capable of navigating such a delicate situation with sensitivity to X’s emotional needs.

3. I do not consider that it would be in Y’s best interests for there to be a similar order in respect of his mother.  The incident following the parent-teacher interviews in September 2016 demonstrates that the mother has poor emotional regulation and aggravates situations.  A repeat of that type of incident, with the mother overreacting and making foolish suggestions about Y changing schools, would be very unsettling for Y and contrary to his need for calm while he does his VCE.

4. Indeed, I consider that it is necessary in Y’s best interests for there to be an order, as proposed by the father and the independent children’s lawyer, restraining the mother from communicating with Y or being within five metres of him, unless Y instigates such interaction or communication.  Having seen the mother in the witness box, and in view of all of the evidence in the case, I do not consider that the mother has the insight into Y’s feelings and perspectives or the ability to regulate her own emotions that would allow interaction or communication instigated by her to proceed in a calm manner or otherwise be beneficial for Y.

5. The restraint, as is usual, should extend to the mother’s servants and agents, and, unusually, it should also specifically nominate the maternal grandfather.  That is because he has taken on a dual role in this matter, being both the mother’s solicitor on the record and X and Y’s grandfather.  As the mother’s solicitor on the record, he has firmly placed himself in her camp, and cannot be seen as impartial, or focussed on Y’s needs rather than the mother’s.

Contact details

1. For the reasons discussed above, I do not accede to the mother’s proposal that each parent notify the other of any change in the children’s contact details.  I consider that the mother would be likely to abuse that privilege, but the father would not.  In this context, it is particularly noteworthy that Ms S said in her oral evidence:

   the mother’s pursuing of Y is pushing him further away.

2. Consequently, there will be an order that the mother notify the father of any change in X’s contact details but that order will not be mutual.

Counselling for the mother

1. Ms S recommended that the mother attend counselling with a focus on parenting adolescents and young adults.  That recommendation was not proposed as an order by either parent or the independent children’s lawyer.  Nevertheless, I consider that it is in X and Y’s best interests that the mother acquires some insight into parenting adolescents and young adults.  She clearly does not “get” the basics of parenting such people.

Costs of the child support departure application

1. The mother, in her response filed on 13 February 2017, sought, amongst other orders, that:

   5.Pursuant to sections 116 and 123 of the Child Support (Assessment) Act 1989, there be an order departing from the administrative assessment of child support dated 25 May 2016 payable by the Father to the Mother for the children such that the Father pays, by way of child support for the children, the following:

   a)All school fees and related expenses, including extracurricular and sporting expenses of the children including:

   (i)     Tuition and boarding fees and compulsory expenses for X at (omitted) School and for Y at (omitted) School;

   (ii)     School uniforms including sports uniforms and sporting equipment;

   (iii)   Excursions and/or school camp levies;

   (iv)    Books, stationary, materials and texts;

   (v)     Computer requisites, and/or levies;

   (vi)    School travel expenses;

   (vii)   All sporting expenses of the children including uniforms, equipment and competition fees;

   (iv)    All medical and expenses not otherwise covered by private health insurance.

   b)The Father forthwith do all things and sign all documents necessary to forgive all outstanding arrears and penalties currently owed by the Mother to the Child Support Agency (approximately $2,500) in relation to the Mother’s child support assessment for the parties’ children.

2. The mother had not sought a review by the Child Support Agency.  The matter did not come to this court as a review of a decision of the Social Security Appeals Tribunal.

3. On 22 March 2017, the court refused the application for the child support application to be dealt with in this court.  It was considered to be more appropriate that the child support application be dealt with through the Child Support Agency in the usual manner.  Costs were reserved.

4. At the trial, the father sought costs of $5,923 in relation to the mother’s application in relation to a child support order.  That was calculated as follows:

   a)$3,630 for counsel on 22 March 2017;

   b)$249 for the amended application;

   c)$1,533 for an affidavit dealing only with child support; and

   d)$511 for a financial statement.

5. The mother opposed the costs application.  She argued that, although the child support application was filed by her with the assistance of her solicitors who were then on the record, they were given leave to withdraw at the commencement of the hearing on 22 March 2017, after which she appeared without the benefit of legal representation.  The mother argued that the court did not comply with its obligations to her as an unrepresented litigant and did not give her procedural fairness.  Therefore, the mother argued, the order made on 22 March 2017 refusing the child support application should be set aside and the application should be set down for hearing.

6. Section 123 of the Child Support Assessment Act 1989 permits orders to be made for lump sum child support.  Applications in that regard are required to be heard after any departure application.  However, the mother’s application did not seek lump sum child support.  It sought that her arrears be forgiven, and a departure order requiring that the father pay periodic amounts for education and health expenses over and above his assessed child support.

1. Subsection 116(1) of the Child Support Assessment Act 1989 relevantly permits applications for departure orders to be made to this court:

   … in the special circumstances of the case if: 

   (b)both of the following apply: 

   (i)the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;

(ii)the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case … (emphasis added)

1. The mother did not point to any special circumstances that would have warranted the court dealing with the departure application.  Generally speaking, it is not appropriate for the court to deal with departure applications in parenting proceedings because they require a detailed examination of financial issues.  My recollection is that those matters were explained to the mother at the hearing on 22 March 2017, and she had nothing to say in response.

2. In any event, even if there were some deficiency in procedural fairness, there is no longer a matter pending for hearing in the court, so the application cannot be set down for hearing.  The parties’ cases in the parenting matter are closed.  The mother can bring whatever departure application she wishes to the Child Support Agency, which has the expertise to deal with such matters.

3. Alternatively, the mother said that any costs order should be in the form of costs to be agreed or assessed in default of agreement.  That is not the practice in this court.  In this court, costs matters are not referred to taxation, but the judges generally fix costs, if any, at the hearing or at judgment in accordance with an event based scale.

4. Subsections 117(1), (2) and (2A) of the Act provide that:

   (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)     In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

5. In relation to the financial circumstances of the parties, the father argued that both parents in this case work and own a house.  The father argued that both parents each have one child in their care for which they are primarily responsible, but that he has a partner and her two children as well who he is obliged to support.  The mother argued that the father earns three times as much as she does.  That assertion is supported in the parties’ financial statements.  In addition, the mother said in her written submissions that she has $26,000 outstanding in rates, taxes and other payments as well as about $26,000 of credit card debt.

6. Neither party was in receipt of legal aid for this proceeding.

7. In relation to the conduct of the parties, the father argued that the mother had brought a wholly unmeritorious child support application.  The mother argued that the court had erroneously declined to hear the child support application and that no criticism could be made of the mother’s conduct of the child support proceeding.

8. The proceedings were not necessitated by the failure of any party to comply with previous orders of the court.

9. The mother was wholly unsuccessful in the child support application.  However, as she pointed out, the child support application was but one small part of the overall proceeding.

10. It was not suggested that any offers a settlement were made in relation to the child support application.

11. There are no other relevant facts or circumstances.  However, I do note that, historically, the mother was the first of these two parents to make a costs application.

12. It seems to me that the mother’s child support application was wholly without merit.  The mother was represented by solicitors when she filed that application.  She should have known that it was extremely unlikely that this court would deal with her child support application in the context of a parenting dispute.

13. On the other hand, the costs claimed by the father appear to be by way of indemnity rather than according to the event based scale that generally applies in this court.  Moreover, the court dealt with other matters on 22 March 2017.  Therefore, at most, only part of the father’s costs associated with the appearance on that day could be attributed to child support issues.

14. By my calculation, the amounts payable on scale for a child support matter would be:

    a)$1,736, item 2, interim hearing;

    b)$1,042, item 6, half day hearing; and

    c)$521, item 5, advocacy loading.

    That totals $3,299.

15. It seems to me, bearing in mind:

    a)that the interim hearing on 22 March 2017 was partly for the purpose of reviewing the matter with the benefit of Ms S’s family report; and

    b)the discrepancy in the parties’ financial positions,

    that it would not be just in this case to depart from the usual rule in family law proceedings that each party bear his or her own costs.

16. Consequently, there will be no order for costs.

I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:       21 July 2017