Goode and Goode
[2010] FMCAfam 14
•15 January 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GOODE & GOODE | [2010] FMCAfam 14 |
| FAMILY LAW – Parenting – findings of credit of the parents – poor communication between parents – undermining of the mother’s parenting – sole parental responsibility or equal parental responsibility – how much time the children should spend with the father – where the eldest child should attend High School – overseas travel. |
| Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA |
| Goode & Goode [2009] FMCAfam 1405 Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4. |
| Applicant: | MR GOODE |
| Respondent: | MS GOODE |
| File Number: | PAC 2870 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 25, 26 June & 2 September 2009 |
| Date of Last Submission: | 26 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 15 January 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sansom |
| Solicitors for the Applicant: | Watts Mccray Lawyers |
| Counsel for the Respondent: | Mr Brown |
| Solicitors for the Respondent: | Browns The Family Lawyers |
ORDERS
Orders 3.1 to 3.4 made 18 June 2007 be vacated.
There be new orders 3.1 and 3.2 as follows:
3.1Each alternate weekend from the conclusion of school on Thursday until before school on Monday, commencing from Friday 5th February 2010 (except during school holiday periods);
3.2Each alternate week from the conclusion of school on Thursday until before school on Friday, commencing from Thursday 28th January 2010 (except during school holiday periods).
The child [X] born [in] 1997 attend [H] School from the commencement of Term 1, 2010.
The child [Y] born [in] 2004 continue to attend school at [R] School.
That in the event that either the mother or the father wish to have the children leave the Commonwealth of Australia the:
(a)That parent must travel with the children;
(b)The mother and father must travel on an Australian Passport;
(c)The children must travel on Australian Passports;
(d)Such travel shall occur only during school holiday periods;
(e)That the parent must provide to the other party a written copy of the travel itinerary eight (8) weeks prior to the intended departure date;
(f)That the parent must provide to the other party a copy of the return air flight tickets for themselves and the children four (4) weeks prior to the intended departure date;
(g)Each party shall keep the other informed at all times of their mobile telephone number, and, if they do not have a mobile telephone number, their residential telephone number;
(h)Each party shall inform the other party in advance of any change of the contact telephone numbers.
Each party shall do all things necessary to facilitate telephone contact for the children with the other parent during all times when the children are in his/her care whilst outside of the Commonwealth of Australia, as agreed between the parties and, failing agreement, at 9.00am each day, applicable to the time zone where the children are staying. The parent who does not have the care of the children shall instigate the phone calls to the number provided.
Within two business days of the children arriving in the Commonwealth of Australia from any overseas travel, the Passports of the children shall be deposited and kept in safe custody of the offices of Ian Harper & Co, Solicitors, at Level 5, 100 George Street, Parramatta, New South Wales, or as otherwise agreed.
That in the event the children do travel outside the Commonwealth of Australia the parent accompanying them is to ensure their return at least twenty-four (24) hours prior to the commencement of each new school term.
That in the event that one party wishes to travel with the children outside the Commonwealth of Australia during periods of time the children would usually be in the other party’s care, then that travel can only occur with the written consent of the other party.
That in the event consent is provided to the other party to travel with the children outside the Commonwealth of Australia as referred to in paragraph 12 above, then that party shall have a length of make up period as nominated by the other party in writing, provided that party provides the other with at least twenty-one (21) days’ notice in advance of the dates required.
The parties have leave to relist this matter on 7 days notice with regards to interpretation, implementation or enforcement of these orders.
NOTATION
The Court notes that in the father’s evidence he has indicated that he will pay the balance of [X]’s tuition fees at [H] School after utilisation of the Australian Scholarship Fund.
IT IS NOTED that publication of this judgment under the pseudonym Goode & Goode is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 2870 of 2008
| MR GOODE |
Applicant
And
| MS GOODE |
Respondent
REASONS FOR JUDGMENT
Introduction
The dilemma facing the court in this case was aptly summarised by
Dr Brent Waters, the Part 15 single joint expert in this matter, who said in cross-examination “So we’re really talking about a damage minimisation exercise, rather than something that’s going to be a perfect solution” (transcript 2 September 2009, p.29, lines 9-10). Were the determination of this case akin to a mere theoretical exercise, a scientific experiment, or a mathematical equation, then something less than a perfect solution might not matter. But this case is about 2 children, [X] age 12, and [Y] age 5. This case is about important aspects of their lives. And the solutions found by the court are far from perfect.
Background
These 2 boys are the innocent victims of their parents’ chronic inability to communicate or agree about them. The father is the applicant. He is a 42 year old [occupation omitted] of his parent’s [omitted] business. The mother is the respondent. She is a 40 year old [occupation omitted]. The parents married in July 1996, migrated to Australia in March 1997, and finally separated in May 2006 following at least one and possible two earlier separations and reconciliations. The parental history of litigation commenced in 2006. Justice Collier made interim orders on 10 August 2006. The Full Court of the Family Court allowed the appeal against these orders on 15 December 2006. Justice Ryan re-heard the interim application on 22 February 2007 and made orders. On 18 June 2007 the parents entered into consent orders that were made before Justice Waddy. These orders provide, where relevant in the present context, for equal shared parental responsibility and for the children to live with their father each alternate weekend from Friday after school or day care to 7pm on Monday. In addition [Y] is to live with his father from after school on Monday to before school on Tuesday in the alternate week. And [X] is to live with his father each alternate Monday from after school to Tuesday at 7.30pm, as well as each Tuesday afternoon in the other week. By the time [Y] was to start school (and this was certainly the case from 2009, but possibly from 2008 as well) the orders for both boys were to be identical. In effect these orders provided for the boys to live with their father 4 nights each fortnight.
The present proceedings commenced in October 2008, just over a year after the final consent orders. As both parents seek to vary the orders, neither raises Rice & Asplund [1979] FLC 90-725 issues, and the court agrees that it is in the best interests of the boys for the orders to be varied, after hearing all the evidence. The father sought at that time a shared care order that provides for the boys to live with him in a 5 day block in one week, and 2 day block in the other. After the evidence concluded, the father amended his application to now seek that the boys live with him for 9 days out of each fortnight such that they live with their mother from after school on Thursday to before school on Monday in one week, and after school Thursday to before school Fridays in the other week.
The mother’s proposals are much harder to identify and articulate. Indeed one of the greatest challenges in this case has been trying to identify and understand the mother’s proposals in relation to key issues. Her initial response was to, in effect, maintain the current orders for the children to live with the father, to have sole parental responsibility in relation to schooling, and for orders in relation to overseas travel. By the commencement of the hearing, the orders for time were to be reduced to after school Friday to before school Monday only. Of greatest concern, however, was the inability of the mother to clearly articulate her schooling proposal if she were not granted sole parental responsibility. The difficulty, in this regard, was that the mother was uncertain as to where she was going to be living in 2010.
In very broad terms, however, the issues in this case are:
a)How much time should the children spend with the father?
b)Should the mother have sole parental responsibility in relation to schooling?
c)If not, and equal shared parental responsibility continues, where should the children go to school from 2010?
d)What should be the arrangements for overseas travel?
The father’s evidence consisted of his affidavit, and affidavits from his mother (the paternal grandmother) and from Dr P a lay witness. The mother’s evidence consisted of her affidavit and one from her neighbour, Ms S. Dr Brent Waters, a Consultant Psychiatrist, was appointed as the single joint expert in this case pursuant to Part 15 of the Rules. His report is dated 28th May 2009. All of the above named were required to give oral evidence, and did so, except Ms S who was not required.
A short procedural history of this matter is needed to provide some context, particularly in view of the urgency to make a decision as regards schooling. The following chronology is based on a chronology prepared by Mr Brown, the mother’s solicitor, and is part of exhibit A3.
25 June 2009
Day 1 of hearing
26 June 2009
Day 2 of hearing
2 September 2009
Day 3 of hearing
18 September 2009
Written submissions filed
On 25 September 2009 the father’s solicitors wrote to my associate asking me not to issue judgment as a certain unspecified matter had arisen in respect of which they were seeking instructions.
On 28 September 2009 the same solicitors sought leave to re-open the father’s case in relation to evidence arising since 18 September 2009.
The matter was listed for hearing on this issue on 23 October 2009, being the first available date in my docket. On 30 October 2009 I delivered oral reasons granting the father’s application to re-open, admitting certain further evidence, and giving the wife until
20 November to respond if she thought necessary and giving the father the opportunity to reply. These oral reasons have since been published as Goode & Goode [2009] FMCAfam 1405. On 19 November 2009 the mother filed an affidavit responding to the further evidence.
On 26 November 2009 my associate was informed that the father was not intending to reply, and simply relied on the written submissions filed on his behalf. This means that, for all practical purposes, the case was concluded on 26 November 2009. My workload, however, prevented me from preparing these reasons until the period of the court’s closure over the Christmas-New Year vacation.
The further evidence that was adduced and which now comprises exhibit A3 are the documents comprising the mother’s application for spouse maintenance against the father (application, affidavit, financial statement). Even though these documents were signed on 7 September 2009 and filed on 11 September (a week before submissions were filed) they were not actually served on the father until 23 September, after submissions had been filed. I held that the material was relevant to the proceedings, especially the schooling issue. I discuss this in further detail below.
As well as the issues that I have identified above, both Mr Brown for the mother, and Mr Sansom for the father, pressed me to make findings as to credit of the parents. It is, regrettably, necessary to do so.
I was provided with comprehensive written submissions by both
Mr Brown and Mr Sansom for which I thank them. They greatly assisted me in the preparation of these reasons for judgment.
By way of outline of these reasons for judgment, I propose to state the applicable law, deal with the expert evidence, make necessary findings of fact and then deal with the issues of the time the children should spend with their father, parental responsibility, schooling, and other parenting issues in that order.
Applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(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.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(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.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(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.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only 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.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must 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.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) 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).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Parental conflict and shared parenting
Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[2]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[2] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’[3] and the containment of acrimony may prove to be central benchmarks.
[3] Personal communication, Bruce Smyth, October 2007. (endnote from article)
This research is consistent with earlier research undertaken by Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[4]
[4] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
This research is background material to my judgment. It is not evidence except insofar as it was expressly adopted by the expert. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the single joint expert. One also lives in hope that parents might learn from it.
The expert evidence
Dr Brent Waters prepared a Single Expert Report in this case dated 28 May 2009, which was released to the parties on that date. Dr Waters gave oral evidence on 2 September 2009. The report follows a common format in that it recites the persons interviewed (the parents, the children, the paternal grandparents), other persons with whom he discussed the case (Mr H, Psychologist) and the documents considered. In relation to each of the parents Dr Waters records information under headings including family of origin, education and employment, relationships, forensic history, psychiatric history, substance abuse history, medical history and current situation. At the end of each section he sets out his observations of each parent and children.
In relation to the mother’s interaction with the children Dr Waters states at pp 7-8 of the report:
i. Observation of parent and children
All three family members began with a serious and formal demeanour, and Ms Goode remained thus throughout, as did [X] to a slightly lesser extent. [Y] on the other hand quickly relaxed, hopped down from the chair and started playing at the dolls house with blocks and little toy figures. He became extremely immersed in his play, to the point that he was oblivious to everything his mother was saying, including concerning himself. The content of his play seemed to be quite appropriate. It was generally family issues of a non-conflict variety, although it was noticeable that he just piled all the furniture into the top of the house in quite a chaotic way. This was quite unusual. Children of this age generally try to organise the furniture and figures into a family configuration, and it may reflect a degree of confusion in [Y]’s mind about aspects of family organization. On the other hand, he was quite imaginative in the way in which he played with the dolls and had them in dialogue with each other.
In the meantime [X] had remained sitting beside his mother for most of the consultation. There was a sense that he was quite careful in what he said to his mother or in response to my questions, particularly about issues which are clearly in conflict in his family such as extracurricular activities. However later he did start to draw.
The children were very well behaved. There was no conflict between the boys and there were no disciplinary crises. They were warm and respectful with their mother, particularly [Y] who was quite exuberant.
I later asked Ms Goode whether the boys had been their normal selves. She said that they had. She thought that the way I saw them was representative of their usual behaviour. She indicated they had also been quite excited about coming in on the bus.
In examination by Mr Sansom, Dr Waters was able to expand on some of these observations. For example, in relation to [Y]’s play at the dolls house he says at p.104 “…he made a real mess of the doll’s house, which may seem a very trivial thing but, mostly, kids of this age are able to organise it, and I think that’s because he sees his family as a mess as well.” If it is indeed the case that [Y] views his family “as a mess” it is a view that is consistent with all of the evidence in this case and it would be the (somewhat inelegantly stated) finding I would make.
In response to questions by Mr Brown about [X] being “quite careful in what he said to his mother”, Dr Waters agreed that this could be the result of a number of factors including [X]’s desire to say things that might not please his mother, but also the artificial context of the assessment, excitement about seeing his father again after 6 days, a greater susceptibility to parental influence by the father, as well as the mother’s own anxiety (pp.101-103 transcript). Dr Waters was very clear in his oral evidence to say that any reticence by [X] was not a reflection of her parenting of [X]. Indeed he said of the mother:
And - and, as I say, I think that - she spoke about the children in a very warm way. She continually came back, in what I thought was a genuine way, to - to concerns about the children and I thought she had a pretty good judgment about the children’s - so did the father, but I think that her judgment was, perhaps, a bit more on the money in terms of some of their vulnerabilities than the father, which indicated to me that she - that - that she’s quite understanding and probably quite empathic as well with them, so ‑ ‑ ‑
In relation to the father’s interaction with the children Dr Waters records at pp.13-14:
i. Observation of parent and children
The boys had known that their father was going to be arriving and when I indicated that their father was there, both seemed very eager to see him. Before I planned to bring them around, I had wanted them to say goodbye to their aunt who was about to depart but somehow or other they had ascertained where their father and paternal grandparents were sitting and they had gone around there themselves. When I indicated that they needed to come back and farewell their aunt, [X] was quite cooperative and positive about this but [Y] did not want to go and became rather clinging with his father. [X] tried unsuccessfully to persuade him, as did his father, and ultimately I asked Mr Goode to bring [Y] around to make sure that [Y] completed these formalities. The boys then spent some time with their father and grandparents while I spoke with their mother.
On their return, it was immediately evident that [X] was quite a bit more relaxed with his father than he had appeared to be with his mother. He smiled more often, he was more active and animated, he displayed more good-humoured behaviour, and he was attentive to his father in a less apparently guarded way.
As he had with his mother, [Y] had immediately been drawn towards the dolls house where he resumed the same sort of play that he had shown with his mother and the same absorption in that play. [X] on the other hand was very oriented towards his father, but in a more positive way than seemed to be the case with his mother.
At the end of this element of the assessment, [Y] noticed some books on my desk including several suitable for children around his age and a little older, and he picked one of them up. His father encouraged him to read it and [Y] demonstrated that he is beginning to pick up quite good reading skills.
Both boys knew that their father had plans of the proposed home extension with him, and it was brought out and displayed. Both boys pored over the plans with their father, pointing out where they sleep at the moment and where their new rooms would be.
Mr Goode and [X] talked about things that they have done in holidays in the past including trips away for a few days and staying in cottages in the Blue Mountains. I was also told that they had gone to Kiama over the Easter long weekend. [X] spoke enthusiastically about going into work with his father at times, and Mr Goode noted proudly that [X] has a very good grasp of the nature and scope of the business and seems genuinely interested in it.
When I indicated that I thought I might talk with both the boys together again, Mr Goode indicated that he thought it might be good if [X] had a chance to talk with me by himself. To the extent that [Y] had not made much contribution himself when I had seen them together previously, I agreed to this, and it was an appropriate thing to do bearing in mind [X]’s age.
Both parents also provided histories in relation to the children.
Dr Waters had the opportunity to speak to the children alone and I set out some of the records of this that are more pertinent to the issues in this case. At p.19 he records:
I asked what they understood about the future. [X] said he is not really sure what is going on but that their mother says that their father is saying that he is going to sell the house. However he said that he does not believe that is true because his father said that they will not necessarily sell the house. He went on to say that his mother wants to move but he does not. He was worried that if his mother moves away, he would not see his father. I tried to explore whether this meant ever at all or just less, and I think that his fear was that there would be a reduction in the time that he spends with his father. I asked whether he had any thoughts about the amount of time that he spends at both homes. He said that he would like to be able to spend more nights at his father’s place. He also said that his father has taken him to see [C] School and his mother has taken him to [U] School. His preference is [C].
[Y] listened to what was being said but did not contribute any views. Indeed he quickly became bored and went back to the dolls house.
Clearly [X] has some views about the issues before the court. As
Dr Waters acknowledged at p.82 lines 35-36 of the transcript, the court needs to give significant weight to these views. However Dr Waters also acknowledged that [X] has been embroiled to a greater extent than [Y] in the parental conflict, and that he was unduly influenced by his father more than his mother (transcript p.99, lines 42-47).
At pp.20-21 Dr Water records:
I asked how his parents communicate with each other. He said they do not talk to each other but they send messages by text or email. He seemed to have a fairly clear view that his parents did not get on very well.
I asked about telephone communication between he and the other parent when he is in each home. He told me that when he is at his mother’s place, his father telephones in the evenings and when he is at his father’s place, his mother telephones. In response to a question about whether he can initiate phone calls himself, he said that the above telephone calls always happen in the evenings. When he is at his father’s place he can call his mother if he wants to, but when he is at his mother’s place, she will not let he or [Y] phone their father unless it is really important, like they have forgotten something from school.
[X] has a clear perception of the significant communication problems that exist between his parents.
The conclusions and recommendations made by Dr Waters commence at p.22 of the report. In relation to the emotional and behavioural state of the children he states:
I felt that [X] was a somewhat nervous, shy boy. A degree of this was evident even with his father, whom he seemed very eager to please, but it was more evident with his mother and I formed the view that to some extent this reflects the quality of their relationship as well as a temperamental component which is independent of either of his parents. [X] also has some difficulties with verbal expression in the form of a minor speech impediment. His parents would probably be well advised to consult with a speech therapist about this. [X] is probably of an age now when he could make good use of a specific program.
The NAPLAN tests and [X]’s last school report seem to indicate that he is struggling with his schoolwork in a way which is consistent with his basic abilities being in the lower half of the average range. I do not think that he has the abilities that his father or grandparents idealise in him, although he undoubtedly is greatly encouraged by their support and reinforcement for his interest in the business, and he is probably performing above his abilities in terms of his interest in, and understanding of, this particular matter.
…
[Y] is a delightful, robust, curious and animated child. He seems relatively untroubled, but I think there are indications that he is somewhat sensitised to the current situation. I note his clinging behaviour which I observed with his father and also that the same behaviour has been described by the father and grandparents, as well as the chaos contained in his dollhouse play.
Dr Water’s comments about “the quality” of [X]’s relationship with his mother needs to be understood in the context of his later comments in cross-examination, referred to above.
In relation to the children’s views Dr Waters comments at pp.23-24:
I did not seek [Y]’s wishes due to his age, and I did not focus too intently on [X]’s wishes either. However it did seem to me from what [X] said that he would like to spend more time with his father and also that the current arrangements after school on Mondays and Tuesdays are rather arduous. I have noted above that I felt that [X] is a child of at best average abilities and I also think that he is probably a boy who is susceptible to being influenced by his parents. I think he is probably more vulnerable to being influenced by his father because he certainly seemed to be more relaxed with his father, less guarded and more spontaneous, yet eager to please.
I think probably that the highest I could put his wishes would be that bearing in mind that he is probably not a particularly mature child for his age, at least in respect of these matters, his wishes reflect a strong relationship with his father and that this should be given some weight.
About the nature of the children’s relationship with the parents and grandparents he concludes at p.24:
The boys seemed to have a particularly warm and demonstrative relationship with the father and the paternal grandparents.
[Y] behaved in a similar manner with his mother, but [X] seemed more cautious, which could be consistent with the father’s concerns. Alternatively, it may have been in part because he is a shy boy who was just warming up to the assessment process.
In relation to willingness and ability to facilitate a close and continuing relationship Dr Waters states at p.24:
This is a difficult matter to appraise because each parent feels that the other has been very uncooperative, to the point that communication about critical matters such as education, but also extracurricular activities, have completely broken down and the families more or less function independent of each other in this regard. It is not clear to me whether one parent has been more responsible for this than the other.
I gained the same impression and ultimately felt that she would be more likely to facilitate a close and encouraging relationship between the children and the other parent, than would the father.
It is important to recognise and now deal with what was a significant part of the father’s case. He acknowledges that there are communication difficulties, but he attributes the responsibility for this primarily to the mother. Indeed, in order to do justice to the father’s case it is useful to extract his counsel’s written submission on this issue.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
A curious aspect of this matter is that much attention has been paid to the parties’ inabilities to communicate. This is curious because the wife seeks parental responsibility solely, but only as to which school she can send the children (not generally) and at interview with Dr Waters she did not seek to reduce his time.
The sub-section talks of “willingness and ability”. That is important.
The wife was keen to promote a case that the parties could not communicate. In doing so she exaggerated considerably.
She failed to mention in her affidavit other forms of communication and when confronted in cross-examination with the various meetings the parties had had face to face, and the email and sms communications by and large the vast majority were admitted.
It was the wife who cut remaining lines of communication when there was no good reason advanced for doing so. It was the wife who ultimately put a stop to telephone communication between the parties.
The Court will recall her exaggerated evidence as to the emails taking over her life and being massive.
The wife does not wish to communicate. She has antipathy towards the husband and more particularly towards his parents, which she was by the end of her cross-examination, unable to hide.
An examination of the schedules of emails and SMS’s tendered would show, contrary to the assertions by the wife that there was constructive dialogue in this regard including:-
· on 16/11/07 as to [Y]’s childcare;
· on 13/9/07 by which the parties were able to alter holiday care by arrangement;
· on 20/12/07 the parties resolved Christmas holiday arrangements;
· 18/4/08 the parties assisted co-operatively the completion of the Gold Rush project.
The husband is not without criticism. As indicated earlier he conceded that he did not wish to speak to the wife. Is there any wonder about this when, as was either conceded, or could be readily ascertained from her own evidence she was someone who would force herself and her views upon the husband and not relent until she had satisfaction.
The passage of her cross-examination at page 37of the transcript of 2.9.09 is illuminating and illustrative of the difficulties confronting the husband in dealing with her. See from line 11.
It is impossible to think, given her evidence, and the tone of it, that the wife would be unable to refrain from making derogatory or at the very least snide comments to the children concerning the husband (who she thinks and says is a coward – and was not shy in saying such things publicly at the cricket match to Dr P and those around-including one of her children at least) and further, given her amazing views as to the Grandparents she would by word, or deed denigrate them or show them no respect to the children.
In this regard it was the evidence of Dr Waters (from about page 77 of 2/9/09) that a movement in terms of nights towards what the husband was then advocating (equal time) might be justified if the Court formed the view that one of the parents was more likely to be in the children’s ear than the other. Put simply the wife cannot help herself.
It was also the evidence of Dr Waters (page 80) that if the wife was found to be more the cause for the breakdown in communication between the parties then that could be enough for a change in primary residence.
There is not doubt that the father’s case was put to Dr Waters in the clearest terms, but there is also no doubt in the court’s view, that
Dr Waters was much more concerned about the fact of the conflict, than it’s possible genesis. At p.71 of the transcript, for example, the following exchange took place between Mr Sansom and Dr Waters:
And, indeed, several paragraphs above that last one, you reported that the major problem is there is no communication between the two of them?‑‑‑Yes.
In relation to the communication, did you explore that – as to what had been happening historically?‑‑‑To some extent. I guess, when I do these assessments, I rarely dissect – I mean, mostly, people have got a huge reservoir of stories about things that have gone wrong in situations like this, so, generally, I don’t sort of trail my way through any particular instance too much because it just takes heaps of time. Often, the issue – from my point of view, the issue is more the fact that these are unresolved, there’s a great a deal of conflict about it and the extent to which children get embroiled in them and that sort of thing. As I say, I don’t necessarily see myself in the position of evaluating particular instances of it, so I tend to shy away from particular examples.
At pp.73-74 of the transcript Mr Sansom put it to the expert that, in effect, the mother was the type of person who says, “I don’t want to communicate, therefore we have a problem” (lines 42-43, p.73).
Dr Waters did not agree, saying at lines 1 and 2, p.74 that “No. She – on several occasions, she expressed regret that they weren’t able to communicate better.”
Dr Waters was in fact shown and invited to review exhibits A3 and A4 being bundles of email and SMS communication between the parents. He was also given the agreed history of face to face meetings between the parents. In effect Dr Waters was provided with a quite comprehensive history and record of the communication between the parents between 2007 and 2008. Dr Waters agreed that there was nothing toxic in the communications. He described them as “…pretty well mannered… mostly gracious and polite” (p.76, lines 25-32). He said this was consistent with both parents being very polite. The following exchange occurs at lines 33-47:
Is that a different picture, when you have looked at that detail, to the one you were presented with by the wife as to the communication they have had post-separation?‑‑‑No. I don’t think so. I mean, I think that’s they’re character, they’re both very, very polite people. But - so I - how can I say?
What, so they just do not agree very often?‑‑‑They just don’t agree.
Right?‑‑‑And they’re capable of splitting hairs, I think, probably to an almost forensic extent.
If that is right, there is probably very little that is going to change if it is ingrained into their respective personalities?‑‑‑No. I don’t think so.
The question becomes, does it not, to what affect that has on the children?‑‑‑Mm.
It is important to also record that at p.77 line 35 Dr Waters describes the problems between the parents as “intractable” i.e. that the parents were not going to change, so the children had to be protected from the conflict, or “quarantined” (p.77 line 36). At p.89 lines 45-47 and p.90 lines 1-3 he agrees that based on what he has seen and heard, the communication between the parents has deteriorated over the last 10 months. Indeed Dr Waters is able to characterise the email and SMS communication between the parents in the following exchange with
Mr Brown at p.90 lines 5-17
If the only way that the parties could communicate with one another was via written communication, either letters or - and I include in that text messages and email communication, does that in itself give you some concern about how a shared parenting arrangement might work in practice?‑‑‑Well, yes, it does. I mean, I am not - how can I say? The fact that they can transmit messages electronically to each other doesn’t mean that issues get resolved. I mean, that’s what it is all about. And the - I mean, the emails that I saw, you know, it’s difficult to take them all in when you’re reading 15 pages like that, but it’s hard to find anything that had been sorted out in all those pages. I mean, maybe I’m being unfair, but it looked to me as if there was a polite discourse with very little to show for it, at the end of the day, and so I’m not sure that the capacity to continue to communicate that way would actually advance the children’s welfare a great deal. I mean, it’s possible that maybe things will say, but it doesn’t look encouraging to me.
The intensity of the communication problems between these parents is clearly apparent from this evidence. Which parent was more responsible for these problems seems to be an almost irrelevant issue for Dr Waters. It is at the very least a secondary issue. The court agrees. In any event, for reasons that will be set out below, the court does not accept the father’s case that the mother has exaggerated the communication difficulties, or is primarily responsible for these difficulties.
In relation to the likely effect on the children of changes in their circumstances, Dr Waters comments at p.24 if the report:
Neither parent is asking for orders which would have the effect of a substantial separation of the children from the other parent or others in the family. Ms Goode seems to prefer some variation on the current orders and Mr Goode would like to see an increase in the time that he sees the boys, although he seemed to be a bit uncertain about whether he wanted to take it to the point of more or less shared care or beyond. I formed the view that if there was movement towards the orders that the father seeks, both children would cope with this quite well provided that some of the problematic areas were dealt with, primarily the problem of change back to the mother after the children have had a long school day and then have spent some time at their father’s home.
A number of matters arise in this context. It would be fair to say that by the time Dr Waters gave oral evidence the mother’s proposal had changed, and after the conclusion of the evidence generally, the father’s proposal also had changed to seeking orders that the children live with him for 9 days out of each fortnight. In relation to the latter, the father’s latest and last proposal was not put to Dr Waters, for obvious reasons. In any event, having regard to all the evidence, it is not a proposal the court considers to be in the children’s best interests. These reasons will explain why. It is obvious, however, from Dr Waters’ comments that he supported an increase in the children’s time with their father, and a restructuring of the current arrangements to avoid problematic changeovers.
Mr Sansom examined Dr Waters quite carefully with a view to elicit an acceptance of, or support for, the father’s penultimate proposal for
7 days, or equal time, He was not successful. For example at p.78 lines 32-34 Dr Waters indicated he did not think equal time would work for these parents. The subsequent lines of the transcript explain why e.g. “there’s been endless disputation” (line 38). Dr Waters acknowledged that not ordering equal time does not necessarily mean the end of disputation. Indeed here he refers to what the court considers to be a real truism in this case: that “we’re really talking about a damage minimisation exercise, rather than something that’s going to be a perfect solution” (p.79, lines 9-10). Dr Waters conceded eventually that if the court found that the mother was more the cause of the breakdown in communication than the husband, and if the court found that she had inappropriately cut off communication, then “that would be a part of a – one of the probable building blocks” (p.50, lines 44-45) for reversal of the children’s residential arrangements. The following exchange then takes place at p.81, lines 11-19:
So in terms of the question or the answer you gave a little while ago that, you know, if that were the case, that might lead the court to change primary residence. My answer was or comment to you in relation to that vis-à-vis this question is that that is really never on the cards in this case because the parties each have a good relationship with the children, and they recognise the other’s good relationship. So it is unlikely that either of these parties were going to come to you and say, “I think the other ought only have each alternate weekend”?‑‑‑Look, I think both of them saw the need for the children to spend more time than just weekends. I mean, that’s not the same thing - there’s a fair old gulf between that and 50/50, though.
The context of this exchange is clear – Dr Waters was being asked to consider a reversal of primary residence, something that he did not consider appropriate. The rationale for not making such drastic change is the relationship that the children have with each parent. It follows that if Dr Waters would neither consider a reversal of residence, nor equal time with the father, he would not have accepted the father’s final proposal of 9:5 in his favour for the same or similar reasons. Whether it was sufficiently articulated by Dr Waters or not, the court believes that he was clearly concerned about minimising change for these children, whilst increasing their time with the father, and minimising opportunities for parental conflict.
In relation to parental attitudes towards the children, and to the responsibilities of parenthood Dr Waters states at p.25 of his report:
Both parents were very focussed on a legal solution which would assist the boys, but Mr Goode generally framed his in terms of the mother’s inadequacies whereas Ms Goode generally took the boys needs as her primary frame of reference. I also felt that she had a more realistic view of [X]’s nature and needs, whereas the father and grandfather seemed eager to present him as precocious. In a child of his abilities and temperament, this carries a risk of the child not being able to express when he is struggling, and self-esteem being undermined rather than supported.
Dr Waters confirmed his view in cross-examination e.g. p.94 lines 13-14, p.103 lines 16-21.
Dr Waters comments as follows about the parents emotional/behavioural state, maturity etc at p.25:
I did not form the view that either parent suffers from a diagnosable psychiatric illness or personality disorder. I had some difficulty assessing each parent’s claims about the other, which amount really to criticisms of their personality style and manner. Ms Goode felt that her husband, actively supported by his parents, was very overbearing and he has continued to be quite controlling, intransigent and manipulative since the separation. Mr Goode expressed a view that his wife is a very volatile person who is capable of extreme verbal outbursts and rejection which have been directed towards himself, some others in the community, and is now starting to be directed towards the boys, particularly [X].
An assessment such as mine can have difficulty assessing the truth of these matters, although they are undoubtedly relevant.
He notes that each parent makes quite serious claims against the other in respect of which he can make no finding. But the court can and indeed does find that the father is “quite controlling, intransigent and manipulative” and the mother is “a very volatile person”. In other words there is ample evidence, which will be discussed below, for the court to find that each parents claim against the other is in fact true, but none of these findings justify making unnecessary changes to the children’s residential arrangements.
The penultimate substantive point that Dr Waters addresses is the effect on the children of spending equal time, or substantial and significant time, with each parent having regard to the parents’ current and future capacity to implement such an arrangement and to communicate with each other and resolve difficulties that may arise.
He states at p.26 of his report as follows:
Although there is relatively little research on the subject of shared physical care, there are emerging findings from Australia and overseas that such arrangements are best determined by the capacity of parents to exercise maturity, to manage conflict between them appropriately, and to move beyond self-centred decision-making in order to adequately embrace the changing developmental needs of their children. Indicators of significant problems in these areas include tension-ridden change-overs, exposure to expressed acrimony, ongoing denigration of one parent by the other, and insidious embroilment of the children in supporting the opposing views of each parent, upon whom they continue to depend. The latter indicators have all been problems with these parents to varying degrees, and I would not recommend more or less equal time orders.
The question of the research, and the meaning of his recommendation against “more or less equal time orders”, was the subject of extensive cross-examination. Both counsel specifically referred Dr Waters to what has commonly become known as the McIntosh and Chisholm research. The article in question is entitled: McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3. Dr Waters indicated that he was familiar with this research, as well as similar research conducted in Canada and the United States.
Mr Sansom attempted at pp.72-73 of the transcript to have Dr Waters acknowledge that the high level of conflict referred to in the research was not present on the facts of this case, thus distinguishing the research. This did not succeed. Dr Waters states on page 72 line 8 to page 73 line 14:
It is about that that I want to – you say:
Although there is relatively little research on the subject of shared physical care, there are emerging findings from Australia and overseas –
now, just pausing there, are you thinking in relation to those Australian findings the McIntosh-type material coming out of Melbourne?‑‑‑Yes. Yes.
All right?‑‑‑And there’s similar material from Canada. There’s actually some very old material from the United States, from the seventies, when California experimented with joint custody as well, and also from the UK.
You go on to say:
Indicators of significant problems in these areas including tension-ridden changeovers, exposure to expressed acrimony, ongoing denigration of one parent by the other, insidious embroilment of the children supporting the opposing views of each parent upon whom they continue to depend. The latter indicators have all been problems with these parents to varying degrees and I will not recommend more or less equal time orders.
Now, in each case, of course, the consideration under the statute of what is in the best interests of the children – and from your point of view, as a social scientist, is a balancing exercise in relation to a number of factors, is it not?‑‑‑Yes.
Dealing with the issue, though, from the outset of conflict, there is conflict and there is conflict, is there not?‑‑‑Yes. Yes.
By which I mean some cases are marked with conflict at the highest end of the scale: attempts to assault and murder people. I think, from memory, you were involved in a case many years ago called A & A, where someone was – it was alleged that he tried to kill his wife. That is at the extreme end of the spectrum, is it not?‑‑‑Yes.
Now, what I want to bring you back to in relation to this case is do these reports have any scale, if you like, or indicia in relation to the question of expressing on a sliding scale the issue of conflict?‑‑‑Look, probably - not particularly fine measures, I would say; they are reasonably coarse. And I would have to say that they distinguish between physical, you know, violence and that sort of thing, and hostility which is of a - a really - a verbal, or even electronic form ‑ ‑ ‑
When you say “electronic form,” what do you mean by that? Like, sending‑ ‑ ‑?‑‑‑Oh, well, email, vicious emails, and ‑ ‑ ‑
‑ ‑ ‑ sending nasty emails and‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ you know, SMSs and stuff of that sort. Those sorts of things that we see, sort of, a fair bit of these days. And, you know, my understanding, my reading of this is that while they think it’s - it’s important to separate those sorts of things, because there are different risks associated with them, from the point of view of a working - a sort of a working shared parenting arrangement, if I could put it that way, or split parenting arrangement, the non-physical forms of disagreement appear to be just as potent and destructive to those sorts of arrangements, so that - so you don’t have to have physical violence associated with it if they just can’t - they just can’t agree, everything is the source of disagreement, that sort of thing. Those families are generally rated as high on that scale, whatever the scale ‑ ‑ ‑
Mr Brown asked Dr Waters for his views about that part of the research that associated shared care with poor mental health outcomes for children in high conflict families. Dr Waters refers to the Australian and overseas research and states at p.87, lines 33-45:
They have all basically found the same kind of problem: that it was a great idea, but there’s a group of families for which it just doesn’t work, and the more litigated the case is, the less likely it is to work. And, of course, a corollary of the extent to which people litigate is the nature of their relationship and that they have to have recourse to litigation. It has also been my experience in this jurisdiction, you know - so, I mean, I find that even though there are scientific problems with some of the research in the sense it’s not technically great, nevertheless it seems to me that the same sort of experiences happen in different places, albeit using fairly similar sorts of rules. And my own personal experience in this jurisdiction – you know, I’ve done probably several thousand of these sort of assessments now and I often get to follow up families in one way or another – is that the families I’ve seen where the conflict has been the highest and where I’ve had the opportunity to see these children again, certainly the outcomes for them have not been very good.
The context of this evidence clearly indicates to the court that these were not generalised comments about families in general, but comments applicable to the present case. Dr Waters was cross-examined to explore the implications of the research in the context of his own recommendations against “more or less equal time orders”. There is at the very least a very strong inference that his recommendation is consistent with the research, if not influenced by it.
The final point that Dr Waters addresses is the desirability and effect of the parents’ proposals for spending time with the children. At pp.27-28 he states:
Bearing in mind the lack of communication between the parents, I would agree with the mother that the current orders which have the children being returned to their mother’s home after supper on three week nights every fortnight are probably unduly disruptive to the children’s routine. I would not necessarily agree with the mother that the solution is for the boys to spend every overnight during the week at her home, but rather that the parent who collects the children from school should have them overnight and drop them at school the following day, as well as weekends ending in the same manner.
I formed the view that it is quite possible there would be very little change in either parent’s attitude, despite not being absolutely certain of whether I have seen the true complexion of the parents in this assessment. I have highlighted the issue of problematic change backs and I think this is certainly a case where maximum use should be made of changeovers through school.
As I have noted above, the history of this matter gives a very clear indication that an arrangement that effectively divided the children’s time between the parents is not going to work. Their inability to communicate and agree about the children is extensively documented. On the other hand I felt that the boys’ relationship with their father seems to be strong, and it seems to be a genuinely warm tie that they have to him (albeit overvaluing [X]’s capacities), whereas the relationship that I observed with their mother had a somewhat more austere aspect to it, most notably with [X], which may be consistent with the father’s concerns about the mother. Under these circumstances, I would suggest that unless the Court takes the view that the children should primarily reside with the father, which was not a case which was made to me, the children would probably benefit more from an arrangement whereby they spend uninterrupted blocks of time with their father, perhaps on a fortnightly basis of one weekend extending from Friday after school until Tuesday before school and on the other week from Monday after school until Tuesday before school. This would enable the father to have the boys every Monday after school and make whatever plans he wants for those times.
I also formed the view that [X] probably has educational and language needs which need a more comprehensive assessment than has been conducted in the past and that both parents should cooperate about obtaining this assessment from an independent educational professional as well as being bound to adhere to whatever recommendations are being made. If either parent wishes to supplement these recommendations in the time that they have with the children, then they should be permitted to do so.
The issue of [X]’s high school is clearly a critical one and needs to be resolved. Bearing in mind that a hearing is imminent, it may be helpful if a timetable and deadline was set out for this.
A related issue is whether the mother should carry sole responsibility for decisions in relation to the children’s education. It appears that both parents have given a lot of thought to the children’s education over the years and in significant respects, even though they see themselves as being far apart at the moment, they both seem to adhere to fairly similar values and aspirations for their children, although the mother seems somewhat more realistic in this regard. Under those circumstances it is regrettable that there is not a mechanism for this parenting responsibility to reside with both of them.
Provided there are only a limited number of changeovers every fortnight, preferably through school, I would not have thought that travel to or from, for instance, [U] would be overly burdensome.
Dr Waters’ specific proposal for Friday to Tuesday in one week, and Monday to Tuesday in the other week, was the subject of cross-examination. From the father’s perspective, as was noted above, an attempt was made to have Dr Waters accede to there being little difference, in effect, from his proposal for 5 days per fortnight, and the father’s proposal at the time of the hearing for equal time. This was not accepted by Dr Waters, but in the course of so doing he clarified what he meant by his proposal. At transcript p.77 lines 25-40 he states:
Four and one, five nights a fortnight, and that was based upon what?‑‑‑Let me just quickly go back and - well, I think it’s important to say that what I’m recommending is more an arrangement rather than a specific number of days, and that I do say an arrangement whereby they spend an uninterrupted block of time with their father, as distinct from those sort of little snippets - the Monday and Tuesday night or whatever. And I say, perhaps on a fortnightly basis of one where - so this is really a suggestion.
Right?‑‑‑It’s not something that I’m wedded to, but it’s to - basically to capture the notion that it’s probably - that I think - I mean, I think that I did feel that what was going on between the parents was basically intractable, and that - so you’ve really got to quarantine the kids, and face to face changeovers is one thing that can help. And so the changeovers through the school is a mechanism for that, obviously. And, also, that they have an opportunity to settle into one home, rather than sort of back and forth, back and forth. And, particularly, if it cuts across things about which there’s disputation, like whether homework’s done and stuff of that sort.
Dr Waters seems keen to emphasise in this passage that it was the principle of uninterrupted block time, rather than a specific number of days, that he was recommending. There was clearly no “magic”, as such, in 5 out of 14 days per fortnight. He reiterates this at p.86 lines 29-33.
In all of the circumstances of this case, I accept Dr Waters’ evidence. Nothing was put to him that would change his recommendations. Where hypotheticals were put to him I am satisfied on the evidence that no findings can be made to support the hypothetical. Clearly he is of the view that the existing orders need to be varied to provide uninterrupted blocks of time with change-overs at school if possible. His recommendations about time are clearly valuable to me. Perhaps his report is less helpful on the parental responsibility/school issue, but that is more a reflection of the issues than the report.
Necessary findings of fact
Findings of fact are, the court believes, necessary for only a discrete number of issues. First, Mr Sansom and Mr Brown both strongly submit that findings as to credit are necessary, at least as regards the parents. While I am generally reluctant to make such findings in parenting cases, because of the longer-term damage it might effect, I regrettably agree that it is necessary on the facts of this case. Second, given the centrality of this issue in the father’s case, I will need to determine whether the communication problems in this case are as great as the mother asserts, and whether she in fact has been the principal protagonist of the same. Third, I believe, again reluctantly, that I do need to make findings about what Dr Waters described at p.25 of his report as “criticisms of their personality style and manner” i.e. of the parents. Four, and because of the centrality of this issue in the mother’s case, I will need to make findings about whether the mother’s parenting has been undermined by the father and his family.
Credit issues
Paragraphs 45-46 of the father’s written submissions deal with the issue of the wife’s credit quite exhaustively. These submissions provide 19 examples of evidence given by the mother, or relating to the mother, that support the contention that she was a poor witness, at times evasive and disingenuous, who held a deep seated irrational hatred of the father and his parents. I accept that the mother was often a poor witness, was often evasive and disingenuous, and clearly holds strong negative views of the father and his family. The evidence, including that referred to in the written submissions, does not support a finding that she is dishonest, or that she has wilfully exposed the children to her negative views about the father and his parents. It is very clear to me that she had not thought through her proposal with a sufficient level of detail prior to the hearing. Despite several attempts I am still not sure that she has clearly articulated her preferred proposal for where she will live once she moves out of the family home, and therefore where the children should go to school. Clearly much depends on her financial circumstances, hence the spouse maintenance application, and I am satisfied that she sought to minimise the extent to which her proposals depend on her ability to afford accommodation in the right place. Nonetheless I am not in a position where I could disregard most of the mother’s evidence, though I do need to be discerning in this regard. She was clearly stressed by the proceedings.
Paragraph 31 of the mother’s written submissions deal with the father’s credit. The submission is a much more circumspect one – that where the evidence of the parents conflicts, the mother’s is to be preferred. I observe that unlike the mother, the father at no times demonstrated any signs of stress or anxiety before Dr Waters, or before the court, quite unlike the mother. He always seemed to be quite in control, and had a cool business-like manner about him. The first example given in support of this submission is the father’s evidence about where he lives. I find he clearly misled the court about where he lives by suggesting he lived with his parents when the reality was that he only lived with his parents when he has the children. I found this evidence quite astonishing. Despite Mr Sansom’s efforts to minimise its significance it tells the Court that the father was willing to mislead the court not just about where he lives, but about the true level of his dependence on his parents to assist in the care of the children both currently and as part of his proposals for the future care of the children. What is even more disappointing about this evidence of the father is his perception of this matter. When first challenged in cross-examination about being not entirely truthful to the court about this evidence he disagreed. He only later conceded, when pressed, that his statement might mislead (transcript, 26 June 2009, pp.74-75). I note that the paternal grandmother supported the father’s evidence in this regard, thus clearly demonstrating the partisan role she was prepared to play, regardless of the truth.
The question needs to be asked: why would [X] take these petrol receipts if he were not asked to do so by his father? Why is a 12 year old boy allowed to become the father’s de facto agent in collecting this information? What message does that even inadvertently send to the child?
The mother’s evidence about the Gold Coast trip is at paragraphs 160-162:
160. On another occasion at the end of September 2007, [Y] said to me “Dad is taking us on a plane on holiday.”
161. I then asked [X], and later asked the husband about this. He denied they were going anywhere on a plane.
162. The next time I saw the husband I asked him “[Y] said you are going on a plane with them. Is that right?” He replied “No. I don’t know where he got that idea” or similar. I said “I don’t mind where you take them, but at least let me know. [X] said they are not going on a plane. You are teaching [X] to lie to me. One day, he will tell me bigger lies. This is not a good way of bringing them up.” The husband replied, “No, no, I do not know where he got it from. We are not going on a plane. Maybe he overheard my parents talking” or similar words. Two days later, it transpired that he took the children with his parents to the Gold Coast. I am concerned [X] was asked not to tell me certain things by the husband and his parents and that the husband has also taken the children interstate without telling me. The husband has also taken [X] interstate to Melbourne to attend work meetings, without informing me.
The mother correctly identifies, in the Court’s view, that [X]’s experience of this event is that it is acceptable to mislead his mother. The pressure that this puts on [X] is evident from the mother’s evidence at paragraphs 175-176 about the piano teacher:
175. On an occasion in March 2009, the children came home for the husband’s place and [X] came to me and said “I have changed piano teachers again.” I asked “Why?” He said “I don’t know.” Then I asked him “Where are you going now?” He said “I do not want to tell you.” So I asked him “Have you been told not to tell me?” I said this because when the husband changed his piano teacher in 2008 the husband had refused to tell me who the new teacher was. I then said to [X] “It is not good to keep secrets. I should know where you are going.”
176. The next day on Tuesday, [X] came home from the husband’s and while I was putting the laundry away he came up to me and started crying and told me where he goes for piano and also said “I am sorry.”
These are not just more examples of poor communication, these are examples of what Mr Brown in his cross-examination of Dr Waters described as, inter alia, subversive messages about the mother’s authority as a parent (transcript p.97, lines 46-47).
I therefore accept the submission on behalf of the mother that these events cumulatively, together with other evidence referred to in these reasons, evidence a past and current willingness of the father to advertently or inadvertently undermine the mother’s parenting of the children. This has certain consequences as is evident from the following brief exchange between Mr Brown and Dr Waters at p.98 lines 11-13:
The proposition I think I put to you earlier was: the longer they spend in the father’s household, the more they are likely to take in that attitude – that negative attitude – to the mother?‑‑‑Yes.
This is clearly a significant factor I need to take into account in determining the time these children should spend with their father. It rules out, in my opinion, both of the father’s proposals for a 7:7 or 9:5 split.
Parental responsibility
The mother seeks an order for sole parental responsibility for making decisions about the schools which the children are to attend. The father opposes this, and seeks to maintain the existing order for equal shared parental responsibility which the parents themselves agreed to in final consent orders in June 2007.
Section 61DA creates a presumption in favour of equal shared parental responsibility unless, in effect, there has been family violence or it is in the children’s best interests for the presumption to be rebutted. I have made findings about family violence above, but not such as to apply to s.61DA. Indeed I did not understand the mother’s case to be that it was family violence that justified making the order she seeks. Doing the best I can to understand her case for the limited issue of sole parental responsibility order that she seeks, it is that it is on the best interests of the children that she decide, because the parents cannot decide.
As Mr Sansom eloquently points out in his written submissions it is implicit in the mother’s acceptance of equal shared parental responsibility as regards all other aspects of major long term decisions relating to the children, that their inability to agree, with its underlying issues of inability to communicate, does not extend to those issues. That must be the case. Again this perhaps illustrates that the mother has not adequately thought through this issues. I have to make what I can of the mother’s proposal.
It is clear that these parents cannot communicate so it is not surprising that they cannot agree on such a major issue as schooling. The nature of their dispute about schooling will be discussed in the next section of these reasons.
If I make the order sought by the mother I can be reasonably confident that a decision will be made that is not prejudicial to the children. I am satisfied that this decision will be influenced primarily by where she lives. This is unknown at this time. What is known is that the former matrimonial home which she occupies will need to be sold, if it has not already been sold. What is also known is that a decision needs to be made about schooling that can be implemented in time for the commencement of school term 1, 2010. This is not a satisfactory state of affairs. This decision is being made in a factual vacuum. Nonetheless it needs to be made because the parents can’t decide. Making an order for sole parental responsibility in relation to schooling is one solution to the problem. But is this the best solution for the children?
The court does not believe so. The strong impression formed from the evidence of the mother and of Dr Waters is that even if she consulted the father about where the children go to school, she would not value his opinion. I agree with this assessment. She will thus make a decision that meets her accommodation needs first, the needs of the children second, and takes into account the interests and concerns of the father last. This is unacceptable.
There are other significant matters of principle that are relevant. As a matter of policy, for example, should the Act encourage parents who can’t decide about some major long term issues to seek an order for sole parental responsibility in relation to those issues only? If so, does that mean that if these parents can’t agree in future about some other major long term issue they should come back to the court and seek to resolve it by extending the order for sole parental responsibility to that issue as well? These policy issues need to be considered in the context of the alternative – that if parents can’t agree, they will probably litigate anyway.
When the objects and principles set out in s.60B are examined, they seem to me to clearly favour meaningful involvement in the lives of the children by both parents (s.60B(1)(a)) and that parents together meet their responsibilities concerning their children (s.60B(1)(d), s.60B(2)(c)). If I make the order sought by the mother, the father will be excluded from a meaningful involvement in a key decision about the children, together with all the responsibilities that go with that.
When s.65DAC is examined the duties it creates on parents who share parental responsibility is to make joint decisions involving consultation and genuine effort. It does not stipulate what is to occur if the consultation and genuine effort is unsuccessful, though the Act clearly emphasises the importance of parents attending family dispute resolution. It is interesting to note what s.65DAC does not say. It does not, expressly or implicitly, say that where there is impasse the answer is found in s.61DA(4) – to seek to rebut the presumption because it is not in the best interests of a child.
Moreover, when one examines the considerations set out in s.60CC and applies them to this case, there is nothing to justify making the orders sought by the mother. Indeed, on the available evidence, if I make the order sought by the mother I would be ignoring [X]’s views (s.60CC(3)(a)), possibly creating issues of practical difficulty and expense about contact (as I don’t know where the mother will be living)(s.60CC(3)(e)) and excluding the father from exercising the capacity that he clearly has to make significant decision about the children’s educational needs (s.60CC(3)(f)).
Having regard to all of the above, and all of the evidence in this case, it is not in the best interests of these children that the mother have sole parental responsibility about choice of schools. I understand that this means the court will need to make a decision this time. I also understand that the court may need to make future decisions about schooling though one earnestly hopes that is not the case. The risk of future litigation is a real one in this case. As Dr Waters eloquently states at p.79 of the transcript, lines 9 and 10: “…we’re really talking about a damage minimisation exercise, rather than something that’s going to be a perfect solution.”
Time with the father
I have set out the competing proposals above. I have already ruled out either equal time, or the father’s 9:5 proposal. The children currently live with their father 4 nights each fortnight. The mother says I should reduce this. I decline to do so. The strength of the children’s relationship with their father is apparent as was noted by Dr Waters. It would also be directly contrary to [X]’s stated wish to spend more time with his father. I think the real focus of the case relating to this issue is whether I increase the father’s time to 5 nights per fortnight as seems to be one of the scenarios contemplated by Dr Waters in his report. It is a difficult balancing exercise, but having regard to all the evidence I believe it is in the best interests of the children that they live with their father 5 nights per fortnight in two blocks, 1 of 4 nights, and then another night in the alternate week. I believe that this is appropriate as the evidence indicates that:
a)It provides to the father the opportunity to build on his existing meaningful relationship with the children; and
b)There are no issues about harm to the children; and
c)It is consistent with a view that [X] has expressed; and
d)It gives the children an opportunity to have the paternal grandparents involved in their lives, a matter which for the most part, is beneficial, constructive and enriching for them; and
e)It is not such an increase in time that it exacerbates in any meaningful way the exposure of the children to the undermining of their mother’s parenting that has come from the father and his parents; and
f)It is incremental change that, I am satisfied, the children will be able to manage physically and emotionally; and
g)It is as reasonably practicable as the evidence in this case allows me to find, given the uncertainties about where the mother, and therefore the children, will live. I am satisfied that there is sufficient commitment on the part of both parents to make the proposed allocation of time work; and
h)It will not interfere with the capacity of each parent to meet the needs of the children, in the context of a case where communication is so problematic. Indeed one hopes that reducing changeovers and limiting the same to school wherever possible may in fact enhance the parent’s capacity to meet the needs of the children; and
i)It provides the children with a balance in terms of their exposure to what I find to be the very different personalities of their parents containing many attributes that are positive, and just a few that are negative; and
j)In a case that has been so fiercely litigated, it is the best the court can do to balance many complex and sometimes competing considerations, and thus hope to reduce the likelihood of further proceedings between the parents; and
k)It constitutes an order for substantial and significant time in the context of a case where the evidence overwhelmingly demonstrates that the parents lack the capacity to implement an equal time order, lack the capacity to communicate, and where it is generally not in the best interests of the children for there to be equal time.
Schooling issue
In the circumstances of this case I need to decide this as a discrete issue. Even though there will continue to be an order for equal shared parental responsibility I am satisfied that the parents cannot decide, so the court needs to make the decision.
The father’s proposal about schooling is reasonably clear. In his Amended Application filed 19 June 2009 he seeks an order to the effect that [X] be enrolled at [H] School or [C] School to commence this year. He proposes that if [X] attends [C] School, then [Y] attend [J] School.
The mother’s proposal about schooling is far less clear in the event that her application for sole parental responsibility was not granted. Commencing with evidence in her affidavit, relevant paragraphs include paragraphs 65-81, 128-131, 134-148. There is no better case-study for ineffective communication between parents in relation to an issue they both consider important for their children. Doing the best I can with this evidence, it seems as if, even according to the mother, the parents agreed to complete forms for a selective school test for [X], but the evidence does not tell me what was the outcome of that test. In the mother’s application for the selective school test she nominated schools at [suburbs omitted]. I am not sure how practical these schools would have been on the evidence before me.
At paragraph 128 the mother explains that when she leaves the former matrimonial home at [A] in 2009 she will need to seek new accommodation. She states: “A major factor that I will need to consider is the affordability of such accommodation and schools for the children.” She explains at paragraph 130 that she has looked at [U] and [L] “although I have never said I am definitely moving to either of these suburbs. I am looking at areas with good schools and other facilities, that is affordable…” At paragraph 131 she explains that she does not believe she could afford to live in her local area, the [H] district, because to rent a 2 bedroom home would cost approximately $350-$400 per week. She also explains that her share of the proceeds of sale of the former matrimonial home will not be received until 18 months after its sale. She says at paragraph 134 that [X] has expressed an interest to attend the [U] High School Open Day. It seems her case that, during the marriage, the parents contemplated that [X] attend the [H] School. This is a fee paying private school, not a State school. By the second day of hearing I sought to clarify with Mr Brown, the mother’s solicitor, what specific proposal the mother was advancing in relation to schooling. His response was that it largely depended on where the mother was going to live, and she does not know where that will be. He was instructed, however, that [U] is one area she may move to. In the mother’s evidence in chief on 26 June 2009 she indicated a hope to live in [L], send [X] to [K] School, and [Y] to [B] School (transcript pp 117-118). When cross-examined on 2 September 2009 about this she said the following at page 65 transcript:
Do you intend to send [X] to [K] School, if you are permitted that order? So it could not be some other school, it would be [K]?‑‑‑No. It could be. I just depends where I can get accommodation and whether I can - but, yes, it was my intention - I’ve done my calculations - I can probably make the rent in [K] or [L]. Yes, it is my intention, yes.
But in bringing that intention to fruition, it could be a different school other than [K], that you ultimately send [X] to?‑‑‑Well, if I can’t afford to live in the area, I guess it would have to be some other school.
All right?‑‑‑But I would certainly try to live in an area that has ‑ ‑ ‑
Ma’am ‑ ‑ ‑ ?‑‑‑My priority is his - I’m trying to make it work so that he can go to a good school.
Ma’am, is it the case that, at this late stage, you still do not know whether you are able to afford to live in ‑ ‑ ‑ ?‑‑‑No. I can afford it. I have looked into that.
Well, what is the problem with committing to a particular school right now, rather than leaving - “Well, it possibly could be another school if I can’t afford it”?‑‑‑I’m hoping that I will find a rental property, that would be nice enough, that would suit the children and me. It is my hundred per cent intention to move into that area and hopefully send them to [K].
Intentions ‑ ‑ ‑ ?‑‑‑If I can’t find a - If I can’t find a rental property in that area, there’s not much I can do about that.
I see. But as you sit here now, you do not know whether you will or whether you will not be able to, because your inquires have not gone beyond looking on the internet, have they?‑‑‑Pardon?
Your inquiries have not gone beyond looking on the internet?‑‑‑No, I have asked people in the area, I have looked at what the catchment area is for [K]. I was hoping that after today was over, I could then make - I could actually go and see the properties and really work to - if I want something to happen, I will positively try and make it happen.
All right. Moving on to ‑ ‑ ‑?‑‑‑I’m sorry I can’t buy a house there or already have it all organised. It’s just not possible at this stage for me, but it is my intention, yes.
It is clear from this passage that whatever her intentions were – either as regards a specific school, or an area in which she would live – it was dependent on affordability of accommodation. The mother attempts to reassure the court that she can afford to rent in [K] or [L]. However the evidence comprised in Exhibit A3, admitted as part of the father’s application to adduce further evidence that was granted on 30 October 2009, presents a different picture. The mother’s own application for spouse maintenance and affidavit in support sworn 7 September makes it abundantly clear that affordability of accommodation in the [L] area is linked to the payment of spouse maintenance by the father. She deposes at paragraph 13 of her affidavit in support of her claim:
13. Given that I am presently living in the former matrimonial home without paying rent, I anticipate that my expenses will increase after I moved out of the matrimonial home, at least in so far as I will then need to pay rent. I intend to lease a home unit in the [L] area and the cost of such accommodation (I have looked in the local paper and on the Internet) is in the range of $380-$400 per week. This is for a two bedroom unit. I would like to rent a three bedroom unit however I am unable to afford this as the minimum for a two bedroom unit is approximately $400 per week.
The mother’s claim for spousal maintenance is $750 per week. In her affidavit sworn 19 November 2009, pursuant to the opportunity I gave to her in my orders of 30 October 2009 she deposes as follows in paragraphs 14 and 16:
14. My intentions on where I am to live are unchanged. I expect that I will be struggling financially wherever I live, and wherever I live I will have to pay rent. This is why I have applied for spousal maintenance. The rent that I will have to pay in the [L] or [K] catchment area would be about $400 per week for a two-bedroom unit, which is the very minimum standard of accommodation for me and the boys.
15. I note that it has been submitted by the solicitor for the husband that I have been “deceptive” in my conduct in filing a spouse maintenance application. I deny that I have been deceptive. I did not believe, and still do not see, how my spousal maintenance application is relevant to the parenting matter. I was advised that it had nothing to do with parenting orders.
16. I said in my evidence in these proceedings something to the effect that I would be able to afford to live in the area I wished. I infer that it is suggested by the husband that the filing of a spousal maintenance application means that this statement is untrue. I do not understand this. The statement is still true. I would prefer to rent a three-bedroom property in which each of the children would have their own rooms. If I am unsuccessful I will need to rent a much smaller property – probably a two bedroom apartment which will cost $400 a week in the [L] area. This is consistent with the evidence that I have given in the trial.
The only consistent respect of the mother’s evidence in this regard is the absence of any concrete proposal for where she will live and where the children will go to school. The fallacy and perils of granting her the sole right to make decisions about schooling is nowhere more apparent. It is clear that questions of affordability of her accommodation will be enhanced by the outcome of spouse maintenance proceedings that are not before me and will, I may reasonably surmise, not be dealt with on a final basis for some time. I find it astonishing that this application was not filed until 11 September 2009 and that it did not form part of the issues I was asked to determine. Again one must wonder how carefully considered was the mother’s Application. Again the Court is left with the impression that if the decision about schooling is left to the mother, if will primarily be influenced by her own issues of affordability of accommodation, despite all the time she has had to consider these matters.
The father’s evidence about schooling is found at paragraphs 44-60 of his affidavit. It is clear from this evidence that his first preference is for [X] to attend [H] School, and he even offers to pay the difference in fees between what the Australian Scholarship Fund will contribute, and the actual costs. The mother has expressed unspecified opposition to [H].
The father’s next preference is [C] School for [X], and [J] School for [Y]. These schools adjoin each other so the obvious benefit is that they could travel to school together. This is a benefit not immediately apparent on the mother’s proposals.
The difficulty with [C] is that unless the parents move into its local drawing area, enrolment is not possible (paragraph 51, father’s affidavit). The father has indicated a willingness to move into the school’s drawing area, a move he describes as being about 9 kilometres. I accept his evidence. However on the orders I propose [X] will be living primarily with his mother, and I am not satisfied that she will move into that school’s catchment area. Even if she could, there is an issue of time as well.
In short the Court is left in the most unsatisfactory situation where:
·The mother does not know where she will live and therefore cannot be definitive about schooling proposals;
·The parents cannot agree;
·Through the actions of the parents the evidence did not close until 26 November 2009;
·These reasons are being written during the period of the Court’s Christmas-New Year closure;
·The New South Wales school term commences on 27 January 2010.
The only objective evidence I have is found in Dr Waters report, and that is that [X] indicated to him he wanted to attend [C] School (page 19 report). This is not an option that is practicable in the present circumstances.
In the circumstances of this case the option which is not so much the best option, but the least of the worst alternatives is the [H] School. The evidence indicates that [X] can be enrolled there in 2010. The mother’s opposition to this school is unspecified. This is a fee paying private school, but the evidence is that there is a fund that can be used to meet some of the fees, and the father offers to pay the rest. I recognise that this issue of paying school fees could well cause further disputation between the parents as the father may seek to off-set this against child support and perhaps even have it considered as an expense in the spouse maintenance application, but that is unavoidable. [H] School appears to be located at [suburb omitted]. This may or may not cause difficulties for the mother, depending on where she decides to move to. The mother will be the author of her own problems in this regards.
That leaves the issue of where [Y] will go to school. The mother’s proposal is, for the reasons set out above, unspecific and unknown. The father’s proposal is that he remain at his present school, [R] School at [A]. In the circumstances of the present case that seems the only viable alternative, but if that proves impracticable then I am prepared to hear further argument about this.
Other parenting issues
In the father’s Amended Application filed 19 June 2009 he seeks a number of orders (8-13) dealing with overseas travel. In the mother’s case outline orders 4-6 deal with the same subject, but in a different way. I heard little evidence directly pertaining to these matters, and no relevant submissions. In a case like the present where communication between the parents is so difficult, I prefer the detailed approach adopted in the orders of the father save that the notice period must be at least 8 weeks, not 1, and travel must be during the parents share of school holidays only, unless the other parent consents.
There is no reason to interfere with any other orders made by consent on 18 June 2007.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Anthony Thompson
Date: 15 January 2010