Green and Knowles
[2009] FamCA 271
•15 April 2009
FAMILY COURT OF AUSTRALIA
GREEN & KNOWLES [2009] FamCA 271
FAMILY LAW – CHILDREN – best interests – with whom a child lives – physical distance of parents and the effect on equal shared and/or significant and substantial time – relationship between shared parental responsibility and ‘time with’– shared parental responsibility in circumstances of a very high level of dispute between the parents – shared parental responsibility in circumstances where one parent is unable to deal with health and education professionals - Child with a disability - shared parental responsibility save for sole responsibility for education and health
Family Law Act 1975 (Cth)
U v U (2002) 211 CLR 238
AMS v AIF;AIF v AMS (1999) FLC 92-852
APPLICANT: Mr Green
RESPONDENT: Ms Knowles
INDEPENDENT CHILDREN’S LAWYER: Ms Macgregor
FILE NUMBER: MLC 1172 of 2007
DATE DELIVERED: 15 April 2009
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Mushin J
HEARING DATE:
Father’s representation:
Ms Nikou SC from 15 Oct to 20 Nov 2008
Mr Laidlaw of Counsel on 5 Dec 2008
Mr Chambers of Counsel on 20 Jan 2009
Ms Hedberg of Counsel on 4 Feb 2009
In person from 25 Feb 2009Mother’s representation:
Mr Kirkham QC, with Mrs Benjamin of Counsel from 15 Oct to 11 Nov 2008
Mrs Benjamin of Counsel on 12 & 13 Nov 2008
Mr Walker on 20 Nov, 5 Dec, 20 Jan, 4 Feb & 25 Feb 2009.
Mrs Benjamin of Counsel from 23 March 2009ICL’s representation:
Mrs Hooper of Counsel on all dates except 4 Feb 2009 when Ms Jenkinson appeared.Defended Hearing dates: 15, 16, 17, 21, 22, 23, 24 October 2008, 10, 11, 12, 13 November 2009 & 23, 24, 25, 26, 27 March 2009
Mention Hearing dates:
20 November 2008, 5 December 2008, 20 January 2009, 4 & 25 February 2009REPRESENTATION
COUNSEL FOR THE APPLICANT: In Person
SOLICITOR FOR THE APPLICANT: N/A
COUNSEL FOR THE RESPONDENT: Mrs Benjamin
SOLICITOR FOR THE RESPONDENT: JP Stevens Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mrs Hooper
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Macgregor Solicitors Orders
IT IS ORDERED THAT
(1)That the wife have the sole duty and responsibility of making all decisions with regard to -
(a)which school/s the children X born on … June 2000 and Y born on … July 2003 shall attend from time to time together with any special needs of X relating to all aspects of his education; and
(b) all aspects of X’s health including –
(i)choice of medical and other like practitioners; and
(ii)treatment and therapy.
(2)Subject to paragraph (1) hereof, the husband and the wife otherwise jointly share the parental responsibility of making all decisions with regard to the care, welfare and development of the children.
(3)For the purpose of fulfilling her duties and responsibilities pursuant to paragraph (1) hereof, the wife consult with the husband on all matters relating thereto to the extent that she, in her sole discretion, deems appropriate.
(4)The children live with the wife.
(5)The husband spend time and communicate with the children as follows:
(a) during school term –
(i)from the conclusion of school on Friday to 6 p.m. on Sunday in each alternate week commencing on the first Friday of each school term and fortnightly thereafter;
(ii)time pursuant to sub-paragraph i) hereof be extended to either the commencement of school on Monday or the commencement of school on Tuesday provided that the husband accommodates the children at his property at K or such other accommodation within a radius of 15 km from the children's school/s;
(iii)in the event that the husband seeks to avail himself of the provisions of sub-paragraph ii) hereof, he shall give the wife not less than seven days notice in writing thereof provided however that in the event that he proposes availing himself of that provision on a regular basis, he is not required to give written notice thereof on each specific occasion but may do so on a long term basis; and
(iv)from the conclusion of school until 7 p.m. on each alternate Monday provided that such time be spent within the Melbourne metropolitan area and the father give the children dinner prior to their return to the mother; and
(b) during school holidays -
(i)for one half of the first and third term school holidays to be agreed between the parties and failing agreement the first half;
(ii)for the entirety of the second term school holiday period;
(iii)for two periods each of two weeks during the December/January school holidays to be agreed between the parties;
(iv)from 9 a.m. on 24 December until 10:30 a.m. on 25 December commencing in 2009 and each alternate year thereafter; and
(v)from 10:30 a.m. on 25 December until 9 a.m. on 26 December commencing in 2010 and each alternate year thereafter;
(c) notwithstanding any other provision of these orders -
(i)the children spend up to four hours with the parent with whom they are not otherwise spending time pursuant to these orders on –
(ii)each of that parent's birthdays as is appropriate to that parent;
(iii)each of the children's birthdays; and
(iv)Fathers' Day or Mothers' Day as is appropriate to that parent;
(d)for the purpose of facilitating the provisions of this paragraph, except when changeover is to take place at the commencement or conclusion of school, the changeover point shall be the mother's residence; and
(e) as may be otherwise agreed by the parties.
(6)The husband be restrained by himself, his servants or agents from -
(a) discussing X’s weight with him or in his hearing;
(b) discussing X’s weight with Y or in her hearing; and
(c) weighing X.
(7)The parties each advise the other of the location at which the children are residing when they are in the care of each of them.
(8)The wife authorise the principal of any school attended by either of the children to provide to the husband, at his expense, copies of all school reports, notices, order forms for school photographs and all the material and like matters normally provided to parents of students of such school.
(9)The wife authorise any medical or like practitioner treating either child to provide to the husband, at his expense, a report of such treatment and any prognosis thereof –
(a) forthwith in the event of an emergency; and
(b) otherwise quarterly.
(10)The wife keep the husband advised of significant school and extra-curricular activities undertaken by the children and the husband be entitled to attend the same.
(11)The wife and the husband each be and is hereby entitled to attend any parent teacher interview, school concert, school speech night, sporting event, school production or any other like event normally attended by a parent of students.
(12)Nothing in paragraphs (8), (9), (10) or (11) hereof removes from any such school principal, headmistress or headmaster or medical or like practitioner the right to refuse to provide any material, information, right of attendance or like matter provided therein at such person’s sole discretion and particularly in circumstances in which the husband is behaving in an aggressive or confrontational manner.
(13)The wife inform the husband of all prescribed medication to be taken by either child during the time that the child is in the care of the husband and provide to the husband sufficient quantities of such medication to enable him to administer them to the child.
(14)The wife and the husband each keep the other informed as to any significant medical emergency or event suffered by the children or either of them immediately upon the occurrence of such event.
(15)Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled ‘Parenting orders – obligations, consequences and who can help’ a copy of which is annexed to these orders.
(16)That the Registry Manager of the Melbourne Registry of the Court cause a certified copy of these reasons for judgment to be forwarded to –
(a) Dr S, Paediatrician; and
(b) Mrs B, Principal, C School.
(17)Liberty be reserved to either party to apply for any order consequent upon these orders including any order for costs.
(18)All applications be otherwise dismissed and the proceedings be removed from the list of cases awaiting hearing.
(19)Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel, including Senior Counsel.
IT IS NOTED that publication of this judgment under the pseudonym Green & Knowles is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
FAMILY COURT OF AUSTRALIA AT MELBOURNE FILE NUMBER: MLC 1172 of 2007
MR GREEN Applicant
And
MS KNOWLES Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
INTRODUCTION
1.The parties' children, X, presently aged 8 years and Y, presently aged 5 years, are the subjects of extremely protracted and bitter proceedings between their parents seeking various parenting orders pursuant to Part VII of the Family Law Act 1975 ("the Act"). The single most important fact is that X suffers from certain disabilities, requiring a high level of management of his health and schooling.
2.The parties separated in January 2002. Proceedings were commenced between them within two months of their separation and have continued since that time. In August 2006 final orders were made by consent pursuant to which the children lived in the primary care of the mother and spent very regular and frequent time with the father. That arrangement has continued until the present time.
3.At the time of the making of the consent orders in 2006, the mother lived in L, an inner suburb of Melbourne. The arrangements for the care of the children appear to have worked reasonably successfully, at least in part because, at that time, the father also lived in the L area. However, in December 2007 the father and his partner moved from the L area to live at V, an outer suburb of Melbourne, an action which has had a profound effect on these proceedings.
4.The children attend a private school in the inner city area. The mother proposes continuing to live in L and the father proposes continuing to live at V. Accordingly, there is a substantial distance between them requiring significant driving times to enable both parties to continue to be involved with the children to a high level. Also as part of the father's proposal, the children should leave their present school and go to a State school approximately equidistant from each of the parents, allegedly at least in so far as driving time is concerned.
5.The parties differ as to many fundamental issues with regard to the future care of their children. They include --
·On the basis that the parties are agreed that there is to be shared parental responsibility, whether exceptions be made with regard to one of the parties having the sole responsibility to determine all matters with regard to X’s health and the schooling of both children; and
·the proportion of time during which each of them is to care for the children.
6.The joint issues of X’s health and schooling are fundamental and have occupied the greatest proportion of time during this trial. They are inextricably bound up to each other. The father asserts that only he is able to ensure that X receives the highest level of support and attention in both those areas. He argues that he has expert knowledge and is able to advocate for X’s needs to a much higher level than is the mother. He asserts that the mother is not strong enough in ensuring the best care for X in both the areas of health and schooling.
7.The mother, who is supported by the Independent Children's Lawyer ("ICL"), asserts that the father's manner and approach have alienated both health and education professionals to the extent that many of them will not deal with him, in the case of the present school, at least without some independent corroborative support. Consequently, the father's manner and approach have become an important issue in these proceedings.
THE PARTIES
8.The father, Mr Green, was born in February 1964 and is presently aged 45 years. His early employment occupied a period of approximately 10 years working for an advocacy organisation. He has a University degree and practices a profession. He is engaged in practice for approximately 30 hours per week.
9.The mother, Ms Knowles, was born in Melbourne in May 1968 and is presently aged 40 years. She is also a practicing professional and is employed by a Bank. That employment is on a part-time basis.
10.The parties commenced living together in May 1995 and married in July 1996. During their marriage, they lived in Lda. They separated on 12 January 2002 and have lived separately and apart since that time.
THE CHILDREN
11.X was born in Melbourne in June 2000. He is presently aged nearly 9 years. In December 2000, a paediatrician who will be referred to in detail below, diagnosed X with hemiplegic cerebral palsy. While there is a dispute between the parties as to the precise nature of X’s disabilities, they include the physical disability of significant right sided paralysis. He wears a form of splint on his leg, has a difficult gait and has very little if any useful function of his right arm. It will be necessary to make detailed specific findings with respect to X’s disabilities and their manifestation. For the present, it is sufficient to note that there are also issues of intellectual function, including executive function, IQ, reading and like matters which have been raised during this trial. If X did not have special needs, this trial may well not have taken place.
12.Y was born in Melbourne in July 2003. She is accordingly five years of age. She does not have any special needs and regrettably, has effectively been given secondary attention in these proceedings because of X’s particular requirements.
CREDIBILITY
13.Both parties and the ICL submitted that there are issues of credibility which I must decide in this matter. In the vast plethora of facts which have been presented to me, there are major differences in respect of which, in some circumstances, it is very difficult to accept that one or other party may not be deliberately untruthful. Accordingly, it is necessary for me to make some preliminary general findings about the credibility of each of the parties.
14.Both parties have maintained their respective positions in what has been, on many occasions, a dogmatic manner. There has been reluctance on each side to concede anything, often in circumstances where it is impossible for both of them to be correct. That factor alone requires me to be wary of the allegations of each of them.
15.The father is a person of great passion, particularly with regard to the fundamental issues of X’s health and schooling. While there is something quite admirable about that, on many occasions during this trial it has produced a degree of arrogance, particularly a certainty in the approaches which he takes to various issues, which has been most disturbing. His attitude to the mother is almost entirely negative, despite his protestations to the contrary. His alienation of health and medical professionals described briefly above and to be detailed below, is of great concern and his inability to acknowledge that at least some of those actions may be his responsibility causes me to have significant reservations with regard to his credibility generally.
16.The mother is also a strong person who firmly adheres to her views and positions. However, she has a greater balance than does the father and is more prepared to acknowledge positive actions in him than he is in her. She was also more prepared to make concessions than was the father.
17.Despite the above findings, it is appropriate that I reserve findings with respect to credibility to each specific issue. The volume of evidence creates a significant risk of error were I to find that I generally preferred one witness to another. Accordingly, I will make such findings as necessary.
BACKGROUND FACTS
18.Immediately following the parties' separation, the mother moved with X to live at her parents' home in the inner city. The father relocated to a flat in T, in the inner city.
19.Proceedings between the parties were commenced by the mother a little less than two months after the parties' separation. In her application, to which the father responded, she sought the retention of joint responsibility for long-term care, welfare and development of X and that he live with her. The father’s response sought orders providing for him to have a greater degree of care of X.
20.The mother’s chronology filed in these proceedings referred to a report being provided on 10 June 2002, Dr A, a very highly reputed clinical and forensic child psychiatrist. While the material from that source provided helpful background upon reading, no evidence has been adduced to enable to rely on it.
21.On 11 June 2002 consent orders were made by the Court resolving all applications between the parties for alteration of property interests pursuant to section 79 of the Act. Those orders also resolved issues between the parties with regard to parenting. The father refers to the orders as having placed X in his care for two nights in each week and every second weekend from Saturday mid-day together with some weekday afternoons. He swore that he had "understood that … by the time [X] was at school, the care arrangements would be 50/50 and I was content with that expectation."
22.In his affidavit of evidence in chief, the father alleged that the mother's motivation for seeking the primary care of X was connected to finances. He asserted that the mother regarded having the greater proportion of care of X as entitling her to a larger share of the financial settlement. While this matter was not the subject of specific cross examination, my observation of both parties persuades me that this is one of numerous examples of the father's constant criticism of the mother which has included frequent challenges to her motives. In my view, the father is wrong in his assertion.
23.I have already noted that Y was born in July 2003. The parties had already been separated for approximately 18 months at that time. The father swore that the mother had "… persuaded me to have another child with her. She had earlier that year she told me been [sic] to a seminar where the medico had said the best thing a parent could do for a child with a disability is to have more children. Initially I told her I thought she was mad but I contemplated the idea. After much thought, I agreed but, on the express condition that there was no attempt to rehabilitate our relationship."
24.The mother's version of the conception of Y was somewhat different. She swore that "[Y] was born as a result of a fling with [the father] after we separated." It is unnecessary to make a finding on this competing evidence. It illustrates the degree of divergence between the parties.
25.In July 2003, the wife moved with X to live in regional Victoria, approximately 85 km and 1 ½ hours drive from Melbourne. Y was born at about the time of this move. As a result, there was significantly greater transport required of both parties to enable the father's contact with X to continue. To his credit, the father undertook at least his proportion of that transport. The question of the father’s contact with Y at this time is neither clear nor necessary.
26.Between 2002 and 2005, X attended a Child Care Centre. The father did not approve of the level of care being given to X by the Centre and brought an action against it in the Human Rights and Equal Opportunity Commission. That action failed. He then brought proceedings in the Federal Court of Australia on 19 October 2004 which were subsequently transferred to the Federal Magistrates Court. They were heard over a period of four days in 2006. The Court ruled that the Centre had no case to answer and dismissed the proceedings with costs against the father.
27.In February 2006 the mother purchased her property in D St, L and moved from regional Victoria to live there with the children. She has continued to live there to the present time and her proposal is to remain there in the future.
28.On 1 June 2006 the mother filed an initiating application in this Court seeking interim and final parenting orders pursuant to the Act. The orders sought may be summarised as follows:
·shared parental responsibility for the long-term care, welfare and development of the children;
·each parent have responsibility for making decisions with respect to the children's care during times that they reside with that parent;
·the children to spend substantial time with each parent with multiple changeovers in a fortnightly cycle;
·the parties to essentially share holiday periods with the father to spend more time with X than with Y;
·provision be made for Christmas, Fathers' and Mothers' Days; and
·the parties to spend time with the children as otherwise agreed.
29.Those proceedings were settled by the parties. On 10 August 2006 a Registrar made final consent orders pursuant to which the care of both children was effectively shared between the parents but not equally. Both parties had substantial time with the children both overnight and during the children's waking hours. A calculation provided to me by the father demonstrates that with regard to the children's waking hours, the division of time between the parties was close to equal. Overnight time was apportioned as to nine nights to the mother and five nights to the father on a fortnightly cycle. As noted above, that arrangement has continued but, as I will discuss in detail below, because of primarily the geographical distance between the parties and also other factors, cannot continue in its present structure.
30.In July 2006 the father commenced a relationship with Ms R. They commenced living together in February 2007 and are engaged to be married. They expect to marry during 2009. From the time of commencement of their relationship they lived at L.
31.Ms R also practices a profession. On her evidence she is self employed in private practice. Her sworn evidence is that she works ‘about a 30 hour week’.
32.In December 2007, the father and Ms R moved from L to live in a rented property in V. Ms R swore and I accept that V is approximately 58 km from the Melbourne central business district. Both the father and Ms R swore that V is approximately 40 minutes driving time in "fairly heavy traffic" from K. The relevance of K, where the father proposes that the children attend school. Ms R also swore that the driving time between K and the mother's home in L was "around 30 minutes." Accordingly, on the evidence of those two witnesses, the driving time between V and L is certainly in excess of one hour which, on the basis of the current orders, is undertaken by the children on several occasions each week.
33.Ms R has purchased a block of land for $150,000 a short distance out of the V township and she and the father intend building a house on it, commencing in the near future. The house is estimated to cost between $200,000 and $250,000 to build. They have secured the necessary borrowings to enable them to complete that building. They propose continuing to live at the rented property in V and move to live at the home upon its completion.
34.In addition to living in V, the father had rented a property at C in the inner city area where he appears to have stayed at times and also to have, at least in part, conducted his professional practice. During this trial, the father surrendered the lease on the C property and rented a property at K. As I will detail in due course, maintaining a property at K is, on the father's contention, of assistance to him in his proposal for determination of these proceedings.
35.Since the parties' separation, there have been numerous incidents between them which do not reflect well on at least one of them and sometimes on both. Some of those incidents will be considered below as they relate to major issues in these proceedings. Most of the incidents are manifestations of the very hostile relationship between the parties and all of them reflect negatively on the respective parenting abilities of one or both of them.
36.One such incident occurred in February 2007 and related to Y. The father had attempted to trim Y’s fringe and had left it uneven. Ms R took Y to her hairdresser to have the fringe straightened. After the children were returned to the mother on the following day, Ms R found a voice message on her telephone criticising her for not "respecting her rights as a mother". The mother instructed Ms R not to take Y for a haircut again or to assume that it was her role to do so. During the trial, I was critical of the mother for her attitude. In my view, if the relationship between the three adults were more positive and tolerant, this incident would never have occurred.
37.Another incident occurred in the same year while the father was working in Brisbane. As a result, Ms R was looking after the children on her own. Ms R had arranged to take the children to meet members of her family. The mother was aware that the father was away on a business trip and sent a text message to Ms R before the latter collected the children from school saying that the mother had already collected the children and that they would be spending the night with her. Obviously, the mother's action spoilt the time which Ms R had planned with her family. Again, the mother is to be criticised for her actions. They are a further manifestation of a very poor adult working relationship.
38.In approximately mid-2007 the children were staying at the father's home one night in circumstances which were alleged by the mother to have amounted to an over-holding of the children. The mother climbed over a security gate at the father's home "and banged on the children's window before banging on the front door". It is unnecessary to make detailed findings with respect to this incident. The mother should never have climbed over the security gate and otherwise behaved as she apparently did. This was potentially a very frightening incident for the children. The fact that the communications between the three adults, and particularly the father and the mother, were at an extremely low point does not excuse the mother’s behaviour.
39.Likewise, the father resorted to similar behaviour. He swore that on an occasion which appears from the chronology of his affidavit of evidence in chief to be in approximately mid-2006, the mother -
… had her mother [the maternal grandmother] pick up [Y] on a Friday afternoon when she was clearly meant to be with me. I visited the maternal grandmother’s place and she refused to open the door. I could hear [Y] inside. I slid up an unlocked partly open window, climbed in and removed [Y]. The maternal grandmother was threatening to scratch out my eyes tore my shirt and screamed obscenities at me all in front of [Y]. I said and did nothing to her. She tried to strangle me. I simply picked up [Y] and left. The maternal grandmother initiated an intervention order against me and after a while it was dropped. In hindsight, I should not have attended her premises. I accept that it would have been distressing for [Y] and I should have given the matter mote thought however, it was not the first time that the mother had attempted to unilaterally reduce my time with the children and her attitude and conduct caused me much distress. I offer the above as an explanation not an excuse.
The father’s acknowledgement of the inappropriateness of his conduct exhibits an uncharacteristic insight into his own behaviour.
40.These proceedings were commenced by initiating application filed on behalf of the father on 1 May 2008. He sought an urgent interim order arising out of dealings which he had had a short time previously with Dr S. Those matters are discussed below. However, although that issue appears to have provoked the father's initiation of the proceedings, I am satisfied that the consent orders made in August 2006 and described above were becoming increasingly unsatisfactory for both parties and the children and it was probable that one or other party would have issued proceedings within a very short time thereafter to bring the wider issues to a head.
THE TRIAL
41.This trial was conducted over 16 days. At the time that it commenced, the father was represented by Senior Counsel, the mother was represented by Senior Counsel leading Junior Counsel and the ICL was represented by a very senior member of Junior Counsel. The trial proceeded for 11 days before having to be adjourned to obtain further expert evidence on the education issue referred to below. Prior to the adjournment, I gave Senior Counsel for the mother leave to withdraw. Thereafter, the mother was represented by a senior member of Junior Counsel although there was some doubt about that at one stage for what were apparently financial reasons.
42.Over the period of several months during which the trial was adjourned as referred to above, I conducted several mentions for case management purposes. Upon resumption of the trial, the father was no longer represented by Counsel and represented himself for the last four days. As a successful professional, he represented himself with great ability.
THE PARTIES' PROPOSALS
43.The respective proposals of each of the parties, excluding the ICL, for determination of these proceedings changed on a number of occasions during this trial. For the purpose of discussion of the proposals, I have relied on the father's verbal submissions during his final address and his primary proposed final orders which is exhibit “F20”. For the mother, I have relied on the alternative minutes of proposed final orders which is exhibit “M20” with a small amendment at the beginning of final addresses. In the case of the ICL, I have relied on exhibit “ICL8”.
The Father
44.The essence of the father's proposal for determination of these proceedings is that the parties should jointly share parental responsibility in all respects for both children and should also equally share the time which they spend with them. The father proposes that he live at V and the children attend a school in or around the suburb of K. I will discuss the details of his proposed schooling in due course. He proposes that the parties share events such as Christmas, Easter and the children's birthdays and that they each have the children on the respective Fathers' and Mothers' Days.
45.The father proposes that during school term, the parties spend time with the children on a week-about arrangement with changeover at the conclusion of school on each Friday. The children would live with him and Ms R at V and with the mother in L in the alternate week.
46.During weeks when the children live with the mother, the father proposes that in the event that the mother is unable to look after them personally after school, that he should be entitled to their care rather than the mother place them into after-school care.
47.The father proposes that school holidays be divided between the parties as to 60% to the father and 40% to the mother.
48.During the trial there was considerable discussion around the possibility of the father living in his rented premises in K during weekdays when the children live with him. The father told me that were I to order him to live in K in those circumstances, he would do so. On the basis of all of the evidence, I have concluded that the father would only very reluctantly accept such an order and accordingly, I treat his proposal as being that which I have set out above. In particular, I treat that proposal as being that he and Ms R will continue to live at V, no matter what order I make with regard to the time which each party should spend with the children.
The Mother
49.The mother's proposals were put in several alternatives. Those alternatives essentially respond to alternative proposals put by the father. Those alternatives turned on the issue of whether the father would live at V or K. Following my finding above that the basis of the father's proposal is to live at V, the mother's proposal may now be narrowed down in the following terms.
50.The mother proposes that the parties share parental responsibility for making all decisions with respect to the children's care, welfare and development but subject to certain exceptions. Those exceptions relate to the two fundamental issues of X’s health and education.
51.With regard to X’s health, the mother proposes that –
·she be solely responsible for all decisions relating to X’s specialist medical treatment and therapy;
·Dr S be the paediatric neurologist responsible for X’s treatment;
·the mother be solely responsible for undertaking all liaison with Dr S with regard to the making and attending of medical appointments, treatment and the like; and
·the father be restrained from communicating with Dr S unless such communication is initiated by or at the request of Dr S and then be limited to responding to specific issues or questions sought by him.
52.With regard to X’s education, the mother proposes that she be solely responsible for making all decisions in relation to which schools both children attend. In the alternative, the mother proposes that each of the children attend specified schools at specified times which are presently unnecessary to detail. The mother proposes that the father be restrained from –
·removing or attempting to remove the children from specified schools;
·enrolling the children in specified schools;
·discussing with or in the hearing of the children or either of them their future schooling arrangements including any change of enrolment;
·taking the children or either of them to any open day or the like other than for that school presently attended by the children; and
·discussing any matter unrelated to X’s school performance with his teachers.
53.The mother proposes that the children live with her and spend time with the father as follows:
·each alternate week of school term from the conclusion of school on Friday until the commencement of school on Tuesday;
·on each other Monday, from after-school until 6:30 p.m., the father to provide dinner to them prior to their return to the mother;
·for one half of each of the first and third school holiday periods;
·for four weeks of the long summer school holiday period, made up of two blocks of two weeks; and
·for two weeks of the three-week third term holidays.
54.The mother seeks to restrict the father with regard to the time which he spends with the children pursuant to the second bullet point in the previous paragraph. She proposes that the time spent by the father with the children on each Monday referred to in the second bullet point above be spent not at V but rather at the father's K property or other like substitute for it.
55.The mother seeks an order that the father be restrained from discussing X’s weight with him or Y, denigrating him about his weight and also from weighing him.
56.The mother proposes a number of other orders with respect to changeover, providing information with regard to schooling and health, attention to any urgent medical requirement of either child while in the care of each parent and like matters which have not been canvassed as being controversial issues during his trial.
The ICL's proposal
57.The ICL essentially supports the mother's proposal. That is particularly with regard to the contentious aspect of it. During her final address, Counsel for the ICL specified that in the event that the father lives at V which he has determined to do, the time which he spends with the children should conclude on Sunday evening of the weekend rather than Monday evening. Counsel did not adopt the mother's proposal in that respect.
TWO INDIVIDUAL ISSUES RELATING TO X
58.I have already referred to the issues of X’s health and education. An examination of those issues is relevant to several parts of these reasons for judgement. At this stage, it is sufficient to outline the relevant facts. In doing so, regrettably it is necessary to be extremely critical of the father. His actions with regard to both issues have been contrary to X’s best interests and are of fundamental importance in deciding these applications.
59.While I will consider those issues separately at this stage, I note that they are inextricably bound together in my consideration of the allocation of parental responsibility. The common theme is the father's behaviour towards health and education professionals and the fact that he has alienated so many of them.
X’s health
60.The evidence does not include a detailed specialist medical report on X’s health from a medical professional who has examined X. I will refer to a report from Dr H below. I am reliant on the parties' evidence together with extensive evidence of associated professionals whose material relates to the issue of X’s health in so far as it impacts on X’s education.
61.An essential part of the father's case in this area is that by virtue of his experience in his profession, he has expert knowledge of disability law and is therefore an appropriate and very strong advocate for people with disabilities. In his affidavit of evidence in chief the father referred to first coming into contact with discrimination cases in 1999. He had -
20 …an interest in medical things due to my starting a medical degree when I first left university and those cases seemed a lot about expert evidence and seemed very worthy causes. At that time, [I worked on] several cases for deaf children against the Victorian State Government and the Queensland Government.
…
21. Between 1999 and 2006, I spoke with […] dozens of expert educators, dozens of teachers and researched the principles of the education of children with disabilities. I spoke with dozens of parents of children with disabilities, specifically about the education of their child. It seemed to me to be an important question of human rights and later it also became a matter of the utmost personal interest considering [X’s] circumstances. Over that period of time, I had accumulated a wealth of knowledge in the area.
62.One of the cases on which the father worked involved the issue of the right of a deaf person to be educated in sign language rather than in English. The deaf person was ultimately successful in legal proceedings. At various times during his dealings with both health and education professionals, the father has provided them with copies of the judgment. The fact situation is not relevant to the present one and it has not been submitted that any ratio which it might establish is applicable in the present matter. I am persuaded that a number of lay people, professionals in their own spheres, who have received copies of the judgement from the father have found the receipt of the judgment to be an intimidating experience. During this trial, the father sought to directly and indirectly rely on his personal experience of these cases in a manner akin to being a witness in his own cause. His conduct is typical of his approach towards a number of people and situations described below.
63.In separate parts of his affidavit of evidence in chief the father swore as follows:
"5. … [X] was diagnosed with hemiplegia, being right sided partial paralysis. From the brain scan it appeared that the injury occurred in the early stages of pregnancy.
…
12. Several years ago [X] was diagnosed to have epilepsy, an auditory processing disorder and a very poor working memory. I had noticed what I perceived to be a language disorder of some sort in the pre school years: to me this seemed natural considering he only started to walk and talk properly at about 2 ½ years. He was linguistically, in terms of expression at least, about 12 to 18 months behind his peers. In those preschool years, [the mother] was unconvinced [X] had anything like a language disorder."
64.In relation to X’s health, the wife swore in her affidavit of evidence in chief:
"14. [X] has Hemiplegic Cerebral Palsy and Epilepsy, having suffered a stroke during pregnancy. He was diagnosed with Hemiplegic Cerebral Palsy at 6 months of age by Dr [S], Paediatric Neurologist. This medical condition presents itself with ongoing neurological problems which affects [sic] the right side of [X’s] body, so that movement is restricted in his right side, including his right arm and leg."
65.For present purposes, it is sufficient to rely on the statements of the parties quoted in the last two paragraphs. The real issues are the ways in which X’s health problems manifest themselves and the consequent requirements for special needs education.
-- Dr S
66.While there does not appear to be any significant disagreement between the parties as to X’s basic diagnosis, the manner in which he is being treated by Dr S is a major area of dispute between them. As I have already found, Dr S made the original diagnosis of X when he was approximately 6 months of age. He has been X’s treating specialist since that time. X has attended Dr S on numerous occasions. The mother has been far more involved in X’s attendance on Dr S and other medical specialists than has been the father. The mother is totally satisfied and accepting of Dr S’s competence, professionalism and appropriateness to treat X.
67.Unlike the mother, the father became increasingly dissatisfied with Dr S’s treatment of X. That dissatisfaction came to a head in April 2008 by way of an exchange of e-mails between the father and Dr S, resulting in Dr S refusing to treat X in the future. It is necessary to detail the sequence of events leading to that refusal.
68.One of the consequences of X’s diagnosis is that he has epileptic fits from time to time. He had his first fit at the age of 5 in Spring 2005 and a further one approximately 12 months later. Dr S had treated X with epilepsy medication. In early 2007, S started having fits almost once a month. At paragraph 52 of his affidavit of evidence in chief, the father described those fits in detail. I accept his evidence that he "found the fits extremely unnerving … ." I am sure the mother found them unnerving as well.
69.At paragraph 53 of his affidavit of evidence in chief the father swore as follows:
As discussed with the specialists, the biggest environmental risk factors for an epileptic fit are tiredness and a brain strain of schoolwork. It has also been my observation that when the epilepsy medication mix has been inappropriate he has fitted, although I understand there is a certain degree of trial and error when introducing medication because the medicos are not certain of the way the medications act on the brain and it is difficult to predict outcomes. [X] has almost never had a fit during school holidays.
70.The father swore that in approximately mid April 2008 X’s class teacher had raised with him her concern about X’s "apparently declining reading levels …" and "… that X occasionally is disoriented e.g. cannot get from classroom to school hall by way of shortcut that can only go ‘the long way round.’" The father swore:
It does not concern me as Dr [S] has been aware of this type of inattentiveness and shown no significant concern about it. 60. I remain suspicious that this disorientation question is an attempt to distract from the real issue, that is, he is not getting sufficient teaching assistance and his reading is regressing. I have experienced this behaviour from teachers in many of the disability discrimination cases in which I have [worked].
71.A succession of events followed in which the mother told the father that she was taking X to Dr S about the "disorientation issue". The father complained that the mother had given him less than 24 hours notice of the appointment which conflicted with family plans which the father had made involving the children, Ms R and her family.
72.Because he was unable to go to the interview with Dr S, the father sent an e-mail to Dr S on Thursday 24 April 2008 explaining his views of the matters which the mother had told him that she intended to raise. The e-mail is long and detailed and it is unnecessary to quote it in full here. It is annexure “JG3” to the husband's affidavit of evidence in chief. It commenced with the father informing Dr S that –
[X] is going well at the moment and seems to have matured a bit the last few months and not so aggressive, more willing to negotiate for a solution.
He then raised what he described as three issues which he asked Dr S to address. The first two of those concerned X’s reading level. The father criticised the books which X was bringing home and asserted that his reading levels had dropped compared to his levels "late last year." He was critical of the "declining quality and quantity of support" given to X by his teacher and was also critical of the mother, stating:
It would help too if he was allowed to sleep in his own bed at [the mother’s] and so got a continuous night's sleep, and was required to be in bed by 7:30 p.m.
73.The third issue raised by the father in the e-mail to Dr S concerned X’s weight. His paragraph commenced:
[The mother] continues to be in denial and so is doing nothing about the sedentary lifestyle and poor foods she feeds them.
The father continued with criticisms of the mother in like terms and concluded:
I urge you to be more direct and confronting with her about [X’s] weight: it'll be easier if I'm not there. He is desperate to get fit.
74.On the same day Dr S replied to the father by e-mail expressing his appreciation of –
…your frustration and concerns regarding [X]. The issues you raise are educational and parenting issues in the main. I need to address the question of too much medication or too many seizures regarding the lowering of his reading level, but beyond that the issues you raise are for you and [the mother] to discuss. I think on reflection you will realise that 1 kg in two days is just water loss. In calories terms 1kg is about 7700 calories and so over two days short of not feeding him and strapping him to a treadmill the weight loss is a redistribution of water.
75.Dr S wrote a report which is dated the same day as the e-mail referred to in the last paragraph but is apparently actually written several days later. He reported on the consultation with X and expressed views with respect to the issue of X’s confusion and disorientation. He wrote: "In my opinion one of the important factors is that he requires small classrooms and a degree of support to keep up his self-esteem." In reference to the issue of X’s weight, Dr S referred to a newspaper article which had appeared on the day he was writing his report with regard to "the emphasis of weighing children in this new government initiative." Dr S noted from the article: "Sometimes focusing on the weight can be counterproductive." On the basis of all of the evidence, I conclude that the last comment contained subtle advice for the father, with which I know he disagrees.
76.Despite having informed Dr S on 24 April that X was "going well", at 9:13 p.m. on Sunday 27 April, the father wrote a lengthy e-mail to Dr X which commenced "Dear [Dr S]". Regrettably, he misspelt the name. The e-mail referred to Dr S’s letter noted above. It was quite accusatory and critical of Dr S and was written in an aggressive tone. It commenced with an assertion that the mother had told the father that she intended to see Dr S without X or the father but had in fact attended with X. He asked Dr S to clarify whether he was "as dismissive of her views as you were of my views?" The father wrote:
[X’s] teacher told me about two weeks ago when discussing his occasional disorientation that it was perhaps no worse than any other 7 year old: did you factor this into your thinking? What weight did you give to my views about the poor teaching this year?
77.The father sought elaboration of the reason for Dr S’s suggestion of an EEG for X and asked:
8. Is it perhaps the case that due to [X’s] increasing weight the medication dosage has less effect?
9. Also what weight did you give to the fact of [X’s] being very unfit and the fact that at his mother's house he often gets to bed after 8 pm and usually doesn't sleep in his own bed hence restless night's sleep? What weight did you give to the fact his mother has him doing tennis classes late on a Friday afternoon when he is at his most tired? Isn't it always much better medicine to deal with the negative environmental factors first before increasing the medication dosage?
78.In reference to Dr S’s comment with regard to weighing X, the father wrote:
10. When you say "sometimes focusing on the weight can be counterproductive" suggests to me you are showing a careless attitude to [X’s] weight. What research shows that being 25% over weight, with a significant adverse family history of diabetes, is not a significant and concerning long-term health issue? In my view if you had been stronger on this issue over a year ago [X] wouldn't have put on another 10+ kg and be 42 kg (remember about 18 months ago you told us to keep his weight at 30kg until he catches up). I reject your suggestion that he is overweight because of an excess of water in the body …. Lets [sic] start with a high number of hours of TV time, an excess of food high in fat and sugar and almost no exercise at his mother's place …. what importance does that have re: weight? Consistency is the issue, as you have recently reminded us, and unfortunately when it comes to diet, exercise and rest [X] is not receiving consistancy [sic]."
79.The father asked for a copy of X’s file to be posted to him by Dr S and volunteered to pay the photocopying fees.
80.Dr S replied to that e-mail at 10:10 p.m. on the same day. He started his reply by pointing out that the father had misspelt his first name. He asked for the father's "curtesy [sic] to try and get my name right. You have only seen 20 or more letters from me over the years including today's."
81.Dr S obviously read the father's e-mail in a similar way to my reading. He wrote: "I do not respond to such harassment." In my view, that was not an unreasonable statement for Dr S to make. The father had questioned a reference located at the top of Dr S’s letter. Dr S proceeded to point out that if X is not "present" during the consultation, it cannot be charged to Medicare. Dr S stated that this was an internal name within his filing system. To my mind, that was abundantly clear on the face of the letter.
82.Dr S continued:
I would humbly suggest you reflect long and hard on the views expressed in your letter. I have worked a 100 hour week, trying to stop the mother of one patient going blind, trying to stop children dying in ICU and having a long talk with parents this afternoon about the imminent death of their daughter I am very happy not to see [X] again.
Please see your GP for referral to someone else. I will write to the referring GP informing him I am no longer involved his care.
I will cancel the EEG and my appointment."
83.At 10:12 p.m. on 27 April 2008, Dr S e-mailed the mother as follows:
"[Ms Knowles]
Sorry but I have more than enough to deal with, without this.
Good luck and best wishes."
84.At 10:16 p.m. on 27 April 2008, the father e-mailed Dr S as follows:
" OK. Your resignation is accepted."
85.It is common ground that the father did not consult the mother with regard to any part of the above exchange and, in particular, his acceptance of Dr S’s resignation. The mother swore:
"I was very concerned that [the father’s] behaviour had resulted in Dr [S’s] refusal to continue treating [X]."
86.During the trial, the father attempted to portray the result of the above events as being Dr S having resigned. In my view, that is a grossly incomplete interpretation. I accept the wife's interpretation that Dr S had refused to continue treating X because of the "harassment" which he had experienced from the father. I find that the father's conduct towards Dr S was harassing, aggressive and confrontational and totally contrary to the doctor patient relationship. The father acted on his own inflated view of his professional expertise in the area of disabilities and particularly medical treatment of disabled people. While it would have been preferable for Dr S to have omitted reference to his other difficult cases in his e-mail to the father, in the circumstances his frustration was understandable.
87.At about the time of, or shortly after, the above events the father decided to seek another opinion with regard to X’s health and needs. "[O]ld school friends who are senior medicos" advised the father "to seek out Dr [H], Director of the Epilepsy Unit at the Royal Children's Hospital." The father obtained an immediate appointment with Dr H who agreed to see X on Thursday 1 May 2008. The father swore: "I understand he is Dr [S’s] supervisor, when Dr [S] is at the RCH." There had been an exchange of e-mails between the parties with regard to X going to the appointment with Dr H. The mother refused to agree to X attending that appointment. While in normal circumstances her refusal might be the subject of criticism, given the extremely bad relationship between the parties at that time, particularly with regard to the events concerning Dr S, it is hardly surprising that the mother refused.
88.Accordingly, the father went to the appointment with Dr H without either the mother, or more particularly X, attending. On 7 May 2008 Dr H wrote a report addressed to Dr S which is annexure “JG11” to the father's affidavit of evidence in chief. Dr H sent a copy of the letter to two General Practitioners who had been involved with X’s treatment, as well as to each of the father and the mother. In preparing his letter, Dr H had access to a history given to him by the father together with letters on the Royal Children's Hospital file from Dr S and some diagnostic information.
89.In my findings set out above with regard to the events which led to Dr S’s resignation, I included a quotation from an e-mail from the father to Dr S in which the father questioned Dr S’s suggestion of conducting a further EEG for X. In his letter, Dr H referred to the EEG and suggested that it take place. Dr H also suggested a number of alternatives, particularly with regard to the medication regime which was being used by Dr S in X’s treatment. It included a paragraph as follows:
Hopefully, you and the family can organise for the EEG to be done at Monash. If you or the parents would like me to review [X], I would be happy to do that with a CD copy of the EEGs.
90.With no criticism of Dr H, I do not regard his report as having advanced the father's fundamental proposition that Dr S’s treatment of X was somehow less than appropriate. I regard Dr H as being appropriately professionally supportive of Dr S and his work. Dr H was very limited in his options because he was not X’s treating doctor and he did not have the opportunity to examine S himself. In forming his opinion, he was dependent on materials both from Dr S and the hospital file, together with a history from the father. If anything is to be derived from Dr H’s involvement in this matter, it is that he did not provide any new direction or option for X’s treatment. While I regard his evidence as having very limited weight, to the extent that it has any weight at all it has corroborated Dr S’s position.
91.I referred above to the father’s initiation of these proceedings on 1 May 2008 seeking orders with regard to Dr S. Those proceedings came before the Court on 16 July 2008. All parties were represented by Counsel. With regard to Dr S, the following orders was made:
1. That until further order Dr [S] continue to be the paediatric neurologist responsible for the treatment of the child [X] born […] June 2000.
2. That until further order the wife have parental responsibility to solely undertake any liaison with Dr [S] with respect to making and attending all appointments, treatment and any other matter arising from these appointments including ensuring that any recommendations for treatment or to assist in it made by Dr [S] are acted upon.
3. That paragraph 2 is conditional upon the wife keeping the husband and independent children’s lawyer informed in writing of all matters referred in that paragraph in a timely way.
92.Finally, with regard to X’s health, the father has been criticised for placing too much emphasis on his weight. That is referred to above and is my reference to “subtle advice” in relation to one of Dr S’s letters. While both parties are alive to the issue of X’s weight as it relates to his general health and well being, the mother’s criticism of the father’s emphasis as being a “fixation” is valid. The father uses it as another basis on which to criticise the mother.
X’S EDUCATION
93.I have already referred to the prominence of the issue of X’s education in these proceedings. At the beginning of the trial, I discussed with all Counsel the manner in which it was open to me to make decisions with regard to that issue. I informed Counsel that my usual practice was to decline to make specific decisions with respect to schooling, particularly an actual choice of school, but rather to consider providing for how the parties are to have the power, duty and responsibility of making decisions with respect to schooling if that were an issue which the parties were unable to agree on and it was otherwise in the best interests of the children.
94.However, it is a fundamental part of the father's case that I should make specific decisions with regard to the schooling of the children, particularly with regard to X’s special needs. It is also raised by the mother as being an alternative approach. As that is an issue which is raised by the parties and it is essential that I not necessarily impose general decision-making but rather make a decision in this matter on its own facts, I proceed to a consideration of the relevant issues.
95.X was enrolled by both parties at C School ("the school") shortly after his birth. He started attending the school at the beginning of 2006. It should be remembered that Y also attends the school, having commenced kindergarten there at the beginning of 2007. The school is a relatively small, private or independent School in the inner city which is a 20 to 30 minute drive from the mother's home.
96.One witness was called on behalf of the mother from the school, namely, Mrs B, the school's principal. Mrs B’s evidence was separated by the adjournment of several months to which I will refer shortly. Initially, Mrs B was cross-examined by Senior Counsel for the father. Senior Counsel ceased to be engaged by the father in this trial prior to the resumption following the adjournment. Accordingly, upon that resumption, Mrs B was cross-examined by the father in person as well as by Counsel for the ICL.
97.Senior Counsel's cross examination of Mrs B was entirely balanced and appropriate. However, the father's resumed cross-examination of Mrs B displayed an antagonism towards her which, in my view, was not justified by the facts as they became evident. The manner of the father's cross-examination of Mrs B demonstrated his antipathy towards her and the school.
98.In addition to the evidence of Mrs B, I heard from several other witnesses with regard to various issues of X’s education and potential schooling. I will refer to those witnesses below. However, at this stage it is appropriate to refer generally to the evidence of Ms N, a Clinical Neuropsychologist in private practice. The school engaged Ms N to assess and report on X’s educational needs. Her first report was dated 16 January 2007 and was written as a result of consultations with X on three occasions in November and December 2006 ("Ms [N’s] first report") (exhibit “M5”). The engagement of Ms N followed a meeting at the school to which I will refer below. Ms N’s first report concluded:
I would be pleased to discuss his neuropsychology with those working with him. I would also be happy to review [X] on request and would be particularly interested to see him again around 8 ½ years of age when more detailed assessment of executive function would be possible."
99.Relatively early in this trial, Senior Counsel for the father applied for an order appointing Ms N as a single expert to reassess X in accordance with that recommendation. Initially, I declined that application. I indicated that in the event that the subsequent evidence suggested that I should revisit that ruling, I would be pleased to do so. The early evidence of Mrs B suggested that I should revisit the ruling and accordingly, I appointed Ms N as a single expert to conduct the reassessment. Because Ms N was not readily available and the process was expected to take some time, I adjourned the proceedings to enable the assessment and report to take place. That was the reason for the adjournment of several months to which I have previously referred.
100.Pursuant to my appointment of Ms N as a single expert, she assessed X on four occasions in February and March 2009. Her report is dated 23 March 2009 and is exhibit “ICL3” ("Ms [N’s] second report").
101.I propose considering issues relating to X’s education under the following headings:
·Ms N’s reports;
·the school's attitude to Ms N’s reports;
·the facilities provided by the school to meet X’s special needs;
·the father's objections to the school's provision of facilities;
·the father’s disputes with individual staff members of the school;
·the father's alternative proposals for X’s education; and
·conclusions with respect to X’s education.
Ms N’s reports
102.While my appointment of Ms N as a single expert was urged on me by Senior Counsel for the father earlier in this trial, it became a little contentious on the father's part later in the trial. Prior to her withdrawal, Senior Counsel suggested other possible experts for appointment in this capacity. The appointment of Ms N was supported on behalf of the mother and the ICL at all times. Ultimately, Ms N was appointed as a single expert because she had been previously involved with X in preparing her first report, had been approved by the school and both parties at that time and had the necessary expertise and experience to perform the task. The latter was evident from Ms N’s first report.
103.By way of general finding, I was extremely impressed with Ms N. Her reports were clear, detailed and analytical. Her oral evidence was of an extremely high standard. Despite some criticism from the father which I will refer to below, I find that Ms N is a most competent professional and I accept her evidence in its entirety.
104.In particular, I regard Ms N as being a totally independent person. She is not beholden to the school and is quite prepared to speak her mind. I have no doubt that she would have no qualm about expressing a criticism of the school if she thought that was appropriate in X’s interests.
105.No challenge was made to Ms N’s qualifications. She has a Master of Science in Psychology and has a Graduate Diploma of Child Neuropsychology. She is a Member of the Australian Psychological Society and is also a member of that Society's College of Clinical Neuropsychologists.
106.At the beginning of her first report Ms N noted that X had been referred to her by Dr S. He had requested "assessment to assist with academic programme planning." Ms N wrote:
[X’s] history in Dr [S’s] correspondence is noted including the right hemiplegia (arm worse than leg) secondary to a likely antenatal left middle cerebral artery territory stroke. [X] also has a history of seizures and [sic] EEG in October 2005 showed very frequent epileptiform discharges …. Dr [S] also forwarded correspondence from [another specialist] noting that [X] also has a … (visual field defect) … treated with patching and glasses.
[X] underwent an assessment of his language function … [by a] speech pathologist, in March 2006. The results of this evaluation indicated that his language skills were in the average range for his age although a mild and relative weakness was suggested in his receptive language skills compared to his expressive language skills. A significant weakness was, however, apparent in his working memory ability which was well below average. Hearing and auditory processing skills were assessed in detail by … [a] speech pathologist and audiologist, in October 2006. [The speech pathologist] concluded that [X’s] auditory processing profile suggested an Auditory Decoding/Output Organisation Deficit for which [X] had been receiving treatment in the later stage of 2006.
[X] attended assessment sessions on two occasions with his father, [Mr Green] and on the other occasion he came with his mother, [Ms Knowles]. Both parents expressed some concern about [X’s] reading ability although [the mother] noted that in the months prior there had been improvement in this area of his academic work possibly due to more input from his teachers or to the effects of [a drug] or both. They were interested to know [X’s] neuropsychological strengths and weaknesses in order to determine appropriate expectations for academic achievement."
107.Throughout this trial, X’s disabilities have been referred to as first, his physical disability with regard to right sided lack of function, second as to problems with his working memory and third as to problems with his executive function. There has been considerable emphasis, particularly by the father, on X’s comparative lack of reading ability. There has also been some consideration of his IQ. The details of the manifestation of X’s disabilities are included within Ms N’s first report.
108.At the conclusion of her first report, Ms N made a large number of comprehensive recommendations for the future care of X’s education. It is unnecessary to set out those recommendations in detail here. However, several are worthy of note. They are:
·ongoing speech pathology report;
·continue providing one-to-one or small group assistance to X to help him build on the basics of reading, spelling and mathematics;
·the possible use of a scribe;
·the limitation of distractions;
·new information to be presented one item at a time to assist with the weakness of his working memory;
·assistance with organisational aspects of learning; and
·capitalise on his ability to learn with repetition.
109.The issue of X’s self-esteem was referred to on many occasions during this trial. Accordingly, it is essential to note the following statement from Ms N’s first report:
"it will be important to maintain [X’s] self-esteem by setting short-term academic goals that are achievable and giving him recognition for achieving them. His skills and achievements in other areas should also be encouraged and recognized to build his self-esteem."
110.Ms N’s second report was effectively a continuation and update of her first report. In her second assessment and report, Ms N had regard to a number of sources:
·correspondence regarding X from Dr S;
·Dr H’s review of X’s history (referred to above);
·telephone interview with Dr D, X’s speech pathologist; and
·telephone interview with Mrs M, the Head of Individual Differences Program at the school (referred to below).
111.As with the first report, Ms N provided a detailed and comprehensive analysis of the results and their interpretation. Essentially, her findings were very similar to those in her first report. In her oral evidence, Ms N explained that on an absolute scale X was performing at approximately the same level as he was at the time of her first assessment and report. However, by virtue of his increased age and the progress of the students around him, he was effectively going backwards in relative terms. Ms N did not find this to be a problem attributable to anyone. Rather, it was a factual assessment of X’s performance. In her second report, Ms N expressed that as follows:
"[X’s] educational input seems to have been supporting him to progress in spite of his cognitive difficulties and he is holding his own in many respects. His profile does, however, show that progress is not at the rate typical for children his age and that the gap between his academic achievement and that of his classmates is widening. This is consistent with his cognitive difficulties with working memory, processing speed and executive function and it is anticipated that the gap will continue to widen particularly as the emphasis on independence and executive aspects of learning increases in later primary years.
[X] will continue to need high levels of individual support including one-to-one/small group input, particularly for new concepts and to provide for over learning to allow [X] to consolidate information. Integration assistance will be required in the mainstream classroom to help [X] to be an independent class member, not only physically but in terms of learning, by reminding him of task instructions and facilitate breaking tasks down, assisting him to remain on task, as well as monitoring his fatigue and preventing him from becoming overwhelmed. With respect to choice of school for [X] he is unlikely to achieve to the best of his ability in a highly academically oriented school. A school with a varied program that allows educational choices on the basis of [X’s] skills, level of ability and interests, that has considerable resources to assist children with special needs and a substantial integration department as well as provision for small group and/or individual intensive work will be most likely to suit [X’s] needs."
112.During his cross examination of Ms N, the father asked her for her assessment of the school's performance in catering for X’s needs. Ms N expressed herself as being "very impressed" with the school. She emphasised that that opinion was derived from the information given to her by Mrs M and was not derived from her personal observation. I will return to that question in due course.
The school's attitude to Ms N’s reports
113.Mrs B was called on behalf of the mother. She was the only member of staff from C School who gave evidence in these proceedings. As previously noted, she gave her evidence in two sessions separated by the adjournment of several months. As also noted, Mrs B behaved as a person under attack when being cross-examined by the father. I suspect that this had as much to do with the father’s behaviour and attitude towards Mrs B during cross-examination as with Mrs B’s past experiences of and with the father. In my view, she acquitted herself admirably in extremely difficult and challenging circumstances. I find that Mrs B is a highly professional, competent and compassionate person who has X’s best interests at heart. I also find that she is a witness of the truth. I accept her evidence in its entirety. However, I note that the findings in this paragraph do not necessarily lead to a further finding that the school is necessarily providing X with everything he needs. Nor is it necessarily a finding that it is appropriate that X remain at that school. I must consider those matters separately.
114.Mrs B was familiar with both of Ms N’s reports. With regard to the first report, Mrs B swore that the school had accepted the recommendations and had implemented them. The school was obviously impressed with Ms N’s work and supported it. The school also supported the further assessment by Ms N which resulted in her second report. Mrs B expected to also implement the recommendations in the second report which she had only very recently received.
The facilities provided by the school to meet X’s needs
115.The most helpful evidence of the facilities provided by the school to meet X’s needs is included within Ms N’s second report in which she set out the details of her telephone interview with Mrs M. Mrs M described those facilities in terms which, I have already noted, resulted in Ms N being "very impressed". Ms N wrote:
"Mrs [M] … reported that [X] is a very agreeable member of the school community who is popular and well behaved. [X] is keen to learn, tries hard and has continued to make progress although it has been a struggle to do so. His classmates are very supportive of him and he is well liked and included by them. She also noted that [X] is very busy at school, participating in extra curricular activities of Karate and trumpet. [X’s] academic program is modified according to an individual learning plan to take into consideration his specific needs, including his need for a structured learning environment and programs where tasks are broken into small steps, with concrete and visual information, with repetition and revision, and with limited written work. The Individual Differences Department provide [X] with one hour small group and three half hour individual sessions for reading, one hour small group session for spelling and one hour small group session for mathematics. His classroom teacher is experienced in instruction of children with individual needs and integration assistance is provided in the classroom for one full day and three further mornings per week (19 .75 hours) to assist [X] with physically challenging tasks and to ensure safe mobility, to appreciate work requirements, to remain on task and to support him in being an independent member of the class. In the one to one and small group setting, Mrs [M] felt that [X] was at his best in terms of his confidence, participation and persistence. [X] tends to get lost in the mainstream classroom and needs extra explanation of tasks and assistance to remain on task. With set up he can work for up to 30 minutes on something familiar to him. He is not destructive but does complain if tasks are somewhat challenging for him, although she noted that he does not complain about challenges in the small group setting. His abilities and engagement fluctuate from day to day and he can be observed to be very confused some days, including not being sure which direction to go in a very familiar environment, as well as complaining subjectively that he feels confused. She reported that [X’s] reading remained below expectation for a child at the start of Year 3 and that his reading was at the lowest level in his year group. He was, nonetheless, making slow progress with his reading and that the school's aim was for him to be an independent reader by the end of the year. He was also making slow gains in the area of mathematics and had recently begun to do simple calculation mentally rather than relying on concrete materials. [X’s] handwriting was very slow."
116.The above statement from Mrs M through Ms N is entirely consistent with the evidence of Mrs B contained in exhibit "M21”. In particular, paragraph 21 of that exhibit responded to paragraph 97 of the father's affidavit of evidence in chief. It is unnecessary to set out either of those statements here. It is sufficient to find that particularly because of the evidence of Mrs M with regard to the father's relationship with members of staff at the school (referred to in detail below), at all points at which the evidence of Mrs B conflicts with that of the father I prefer the evidence of Mrs B. Otherwise, Mrs B’s evidence is relevant to other matters within my consideration of X’s education.
The father's objections to the school's provision of facilities
117.The father objects to various aspects of the school's attention to X’s needs. First, he asserts that the finances provided by the school to fund assistance to X to accommodate his particular needs are insufficient. The evidence satisfies me that the funding available from Government for private or independent schools is not as great as it is for State schools. Government money is distributed to private or independent schools by a central organisation. The school receives the sum of $4000 from that source to assist with the provision of special needs for X. In addition, Mrs B’s evidence satisfies me that the school provides a further $15,000 for that purpose. Accordingly, provision of special needs for X is funded to the extent of $19,000 from both available sources. As will be demonstrated below, that appears to be the same amount as would be available for X in the State school system should he be assessed at level 3 funding. General comments from all relevant witnesses seemed to indicate that a child with X’s particular circumstances would be eligible for funding at level 3 at the most, it being considered that he would fall anywhere in the range of levels 1 to 3. These levels are discussed further below.
118.Secondly, the father describes the school as being a "monoculture". He dislikes what he describes as a lack of diversity, by which he refers to socio-economic groups, ethnicity, culture and language. He readily asserts a preference for the State school system over the private or independent school system. However, at various times during the trial the father has proposed alternative schools for the children which have included private or independent schools. He asserts that he is prepared to make the compromise between the State and private or independent education systems to at least partially accommodate the mother's needs.
119.Thirdly, the father asserts that the State system of education will better cater for X’s needs than does the private or independent system and, in particular, the school. In order to determine that proposition I will discuss the father's alternative proposal with regard to the children's education below.
120.Finally, the father asserts that X should have a greater proportion of his special needs education delivered by a special needs teacher rather than a teacher’s aide. The evidence does not give him any support for that proposition. He relies solely on his own contention. Ms N was unable to assist in the question of whether the school should be providing more assistance by way of a special needs teacher as distinct from a teacher’s aide. Contrary to the father's submission, I do not regard that as a criticism of Ms N.
The father’s disputes with individual staff members of the school
121.In my view, the proposition that the relationship between the father and the school has broken down is inescapable. A number of members of staff have expressed quite serious concerns about the father's attitude to the school and to those individuals. Several have gone as far as saying that they are either reluctant or unprepared to work with him. They are very serious propositions impacting on the best interests of the children and it is essential to examine them.
209.Neither the father nor the mother seeks to maintain the present status quo contained in the August 2006 orders. If for no other reason, the father's move to V has created the need to re-examine those orders. Accordingly, there is going to be a significant change to the arrangements by which the parties care for the children. However, it is useful to define the status quo as it presently exists with regard to the care of the children.
210.The physical arrangements for care incorporated in the August 2006 orders are only part of the status quo. While the children have made some negative statements, particularly to Mr P, with regard to travelling to V on a regular basis, I do not regard that factor as being important here. However, it is important elsewhere. Rather, the issue of the children's bonding to each of the parents is of greater importance.
211.I have already referred to the fact that the children have a very close relationship with both the parties and Ms R. However, as Mr P explained, there is a difference in those relationships relating to the element of primary bonding. In his written report, Mr P stated:
… [X] feels a greater sense of dependency upon his mother, in the circumstances not only is this not unusual, but it does not reflect in any way poorly upon his father, and the contrary is true. [Y] feels an absolute dependence upon both parents and is coping extremely well.
212.A further aspect of the status quo is the children's, and particularly X’s, education at the school. Again, the father finds this concept quite threatening but the reality is that X has now attended the school for a little more than three years. In this regard, Mr P referred to a disadvantage of the father's proposal to change the children's school as involving a:
sense of disconnection from a local peer group and a change in the social structure of familiarity of his life at [C School].
That is a factor which cannot be ignored. However, that does not, of itself, determine the issue of schooling which is central to these proceedings.
Additional considerations -- practical difficulties and expense
213.The practical difficulty of expense referred to in this factor is --
… 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.
214.A fundamental aspect of the dispute between the parties relates to what is asserted by the mother and supported by the ICL, that the father's proposal to live at V and for the children to attend schools in K has practical difficulties which are contrary to the children's best interests in major ways. While I consider this matter as part of my consideration of the parties’ proposals, at this stage I note that I also regard the father's proposal as having such major practical difficulties.
215.No issue has been raised by any party with regard to any aspect of expense in my consideration of this factor.
Additional considerations -- parents' capacity to provide for the needs of the children
216.This consideration refers to the capacity of each of the parents and any other person "to provide for the needs of the child, including emotional and intellectual needs."
217.Despite the extremely high level of dispute between the parents, at this stage the children do not appear to be suffering. The children expressed concerns to Mr P with regard to that disputation and expressed the wish, so often heard from children, that their parents stop fighting. My experience suggests that if the fighting does not stop soon, the children may be seen to suffer substantially.
Additional considerations - Parents' attitudes to children and responsibilities of parenthood
218.I am required to consider the attitudes of each of the parents towards the children and their responsibilities of parenthood. There are several matters under this heading which significantly differentiate the parents.
219.The first point of differentiation is the ways in which the parents deal with health and education professionals. I have made findings against the father with regard to those matters which, in my view, illustrate his views of his responsibilities towards parenthood in a very negative light.
220.I first consider Dr S. Dr S has been X’s treating specialist since he made the original diagnosis of X’s health problems. There is nothing to suggest that X has other than a very good relationship with Dr S and for the father to treat Dr S in the way that he has ran a very high risk of destroying that relationship.
221.Mr SD recorded the father as having told him that he was "basically obsessed with [X’s] education – sorry … ." The father expressed concern to Mr SD that "there is a risk that repeated failure will have a negative effect on his self-esteem." He differentiated his approach to that of the mother by describing his view of the mother's goal for X as focusing on the "fitting in to society … whereas I want him to be able to think and act independently."
222.In his affidavit of evidence in chief, the father referred to his significant experience with disability law. My observations of the father suggest that this has led to an inflated belief in the correctness of his views resulting in a belief that he is somehow at least Dr S’s professional equal if not better than him. His unswerving self-belief has led to a frustration when he has disagreed with Dr S’s treatment of X, that frustration being expressed in a confrontational, aggressive and intimidatory manner. The father's arrogance goes to the point of his being unable to concede that he should change his ways. In my view, that constitutes bad parenting.
223.Precisely the same point may be made with regard to the school and particularly Mrs G. As I have previously found, Mrs G is doing everything she can to further X’s interests and the father has taken every opportunity to make life as difficult as possible for her and her staff. Again, in my view that is bad parenting.
224.By contrast, the mother has a much greater trust and faith in the health and education professionals who are involved with X. That does not manifest itself to the point at which she does not question when she feels it is appropriate to do so. She simply recognizes, as is appropriate, that the professionals are doing a good job in difficult circumstances, those circumstances being made more difficult by the father's behaviour. The mother also needs to deal with that behaviour. Understandably, she has found that more difficult in recent times.
225.The father lacks insight into his behaviour. At one stage in his oral evidence, he seemed to be on the point of making a significant concession but it came to nothing. He swore: "I do make mistakes." However, he also swore: "I am a very forgiving person and probably naive." I have no doubt that the father makes mistakes. However, I do not think that he identifies them as being mistakes. Rather, he identifies them as being his fighting for truth and justice, particularly for X. The evidence defies the concepts of "forgiving" and “naïve”. Early in his cross-examination by counsel for the mother, the father first swore that he was "not abusive in any way." He then conceded: "Professionally, I can be abusive." I do not accept that his tendency to be abusive is restricted to his professional dealings.
226.The next matter to which I must refer in my consideration of this factor is the question of the financial burden which each of the parties bears for the upbringing of children. In this regard, the mother has had a significantly greater financial burden than has the father. There are several aspects of this matter.
227.The first matter of financial factors relates to the father's income. As I have already found, he works as a self-employed professional. His taxable incomes for the last three years (he not having received an assessment of income-tax for the year ending 30 June 2008) were as follows:
·30 June 2005 - nil;
·30 June 2006 - $13,364; and
·30 June 2007 - nil.
228.The second financial factor relates to child support. When the parties settled their financial matters as described above, they entered into a Child Support Agreement. That agreement was part of the overall settlement. As part of that overall settlement, the sum of $12,699 arrears of child support was forgiven by the mother.
229.During his cross examination, there was some question as to whether the father was in arrears of child support. Counsel for the mother put to him that there were enforcement proceedings pending in the Federal Magistrates Court. At best, the father was uncertain about the nature of those proceedings. He was also not prepared to admit to arrears. At a relatively early point during this trial, I offered to accept a transfer from that Court to enable the parties to resolve all the litigation in the one place at the one time. I had the impression that the parties were prepared to accept that suggestion. However, within several days of that offer I was informed that the parties had settled those proceedings by the father paying to the mother the sum of $11,500. I infer from that settlement that the father was in substantial arrears of child support.
230.In response to cross examination on behalf of the mother that the father's attitude towards the payment of child support for the children suggested a poor attitude towards parenting, the father asserted that he had paid several amounts of cash to the mother. At first he swore that the money had been paid "in the last two years" and a little later, in response to a challenge with regard to the time, he swore "that would be the last three years". He swore that he had paid "somewhere around $5000 to $10000". In response to a question that he was therefore asserting that the wife was lying when she asserted that she had not received any money from the father in the last three years, he accepted that proposition. The father swore that he paid the monies in cash amounts of $1000, $2000 and $3000. In the first place those last three amounts add to $6,000, so at the very least his earlier evidence of the total amount he had paid commencing at $5,000 must have been wrong.
231.I do not accept the father's evidence with regard to the payments referred to in the last paragraph. The father is meticulous in his assembly of evidence which he can use against the mother and the concept that he paid cash without getting any receipt is inconceivable. I find that the mother’s evidence of not receiving any money for the past three years is to be preferred.
232.The father conceded that "as a general proposition", the non-payment of child support may be a relevant factor. But by way of further instance of the father's lack of insight with regard to child support, he swore: "I have never been aware that she has been short of money."
233.The father's approach towards the payment of child support described above and his limited taxable income is to be seen in the context of other activities which suggest at least a reasonable lifestyle. The father commenced building two residential units in about February 2004. The cost varied between $1.2 million and $1.8 million. The average interest was approximately 11% on the first 80%. There was substantial combined interest, not all of which was offset against his income-tax because one of the units was, at one stage, his principal place of residence. One of the units was sold in September 2005 for a loss of between $100,000 and $200,000 and the other unit was sold in approximately August or September 2008.
234.The father and Ms R have had two overseas trips since the commencement of their relationship. One of those trips was to New Zealand and the other was to Paris and Spain. The latter trip took place several months before the commencement of this trial. It appears that Ms R paid for most of both of those trips. The father and Ms R have taken the children for a holiday to Tasmania.
Additional circumstances - Other factors
235.There are several factors including matters of maturity, sex, lifestyle and background of the children and parents and issues of family violence which are not relevant in these proceedings.
Additional circumstances - finality
236.Finally in my consideration of additional circumstances, I am required to consider whether I should make an order "that would be less likely to lead to the institution of further proceedings in relation to" the children. This matter has been conducted on the basis that the orders which I will make will be final orders as distinct from interim orders, a position with which I agree on the basis of being in the best interests of the children.
BEST INTERESTS - THE PARTIES' PROPOSALS
Parental responsibility
237.I now turn to a consideration of the parties' proposals in the light of my discussion above with regard to the best interest of the children. First, I turn to the consideration of the question of parental responsibility. I note the proposal of all parties that parental responsibility be jointly shared between the parties. In that context, it must be remembered that we are not only considering X’s best interests. We are also considering the best interests of Y. While Y does not have the unfortunate burden of the disabilities experienced by X, she is an individual who must be considered as that.
238.It is clear that when the children reach secondary school level, they will be separated, at least initially. However, the way in which this trial has been conducted leads to the conclusion that at least for the time being, the children will remain at the same school, no matter which school they attend and which party makes the relevant decisions.
239.Early in this trial, I drafted a list of issues which I saw was being relevant to the proceedings and gave it to all counsel. To the extent that it is presently relevant, it provided as follows:
On the basis that the parties are agreed on sharing parental responsibility, should any, and if so what, particular orders be made with respect to –
·matters concerning [X’s] health;
·whether the Court should select the school/s to be attended by the children as distinct from ordering that one or both parties make the decision;
·how should transport of the children be divided between the parties?
That statement of the present issues is a useful framework within which to consider the overall question of parental responsibility.
240.I must commence my consideration of parental responsibility on the basis of the legislative 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." I note my previous discussion with regard to the circumstances in which the presumption does not apply, neither of which is presently relevant. The rebuttal of the presumption needs to be on the basis of the proposition that the sharing of parental responsibility is not in the children's best interests. I now turn to those concepts.
241.The fundamental proposition for the rebuttal of the presumption of shared parental responsibility in respect of all matters advanced on behalf of the mother and supported by the ICL is that the parties cannot cooperate with each other to the extent that their dealings are contrary to the best interests of the children. That is particularly manifested in the father's dealings with health and education professionals which have antagonised large numbers of people to the extent of being contrary to the children's best interests.
242.Despite the submissions by the father to the contrary, there is no credible evidence to support the proposition that the parties are able to deal together in the best interests of the children, and particularly X, on those issues. Mr P expressed that concept on a number of occasions during his oral evidence. He swore:
I don't see the two of you are on the same page at all when it comes to really important decisions. When I look into the future about your family situation I can't see that there's an easy way in which that's going to be resolved. That lack of optimism is not something that engenders great confidence within me to make the recommendation for shared care.
…
I don't think there is any goodwill between you, and so no, I don't think anything that you do within the current framework is going to advance goodwill between you. I can't see how any of this progresses good outcomes. Nobody wants to say one parent should be making decisions about all their children to the exclusion of the other parent, but surely it must reflect a very sad state of affairs that exist.
…
It's not just the distance, it's the separateness. It's creating - what we're trying to do is create a sense of belonging.
243.The following exchange took place between myself and Mr P:
HIS HONOUR: Can I reframe this for you. Sorry, I'd be reframing it for myself in terms of all other things being equal, the distance may well not be the deciding factor. If you could produce a situation in which all the other things you're talking of were present positively, then the children at [K] Primary School and [the father] at [V] and [the mother] at [L] may be quite a feasible proposition?
---Absolutely, your Honour. In fact, you've encapsulated the whole essence because if [the mother] and [the father] decided, "I'm going to live in [V], I’m going to live in [L], and what we should do is make the kids go to school in the middle place because that works for both of us," terrific. But in order to come to that kind of a decision the underpinnings of their relationship would have to be such that it bears no semblance to what we have now.
244.I agree with Mr P’s fundamental proposition that the real problem between the parties militating against any great degree of sharing of parental responsibility is the totally different philosophy and approach towards parenting exhibited by both parties.
245.However, in addition to that difference in approach, the factor of the father's behaviour described in detail above is fundamental. The father believes that he is a law unto himself and expresses that in unacceptable ways to both the mother and, in particular, to various professionals. Based on his past behaviour as demonstrated during this trial, there is no prospect of his dealing with the mother in a positive way in the future on the two fundamental issues. Further, it is highly likely that he will continue the same aggressive and confrontational behaviour towards the professionals. Accordingly, the mother must have the sole parental responsibility with regard to matters of X’s health and education.
246.The father's negative attitude towards the mother does not stop at matters of health and education. He is overwhelmingly negative towards the entirety of her parenting and, as I have already found, poses a significant risk to the best interest of the children in that he will not promote their relationship with her. The final submissions of all parties unanimously adhered to the proposal that save for matters of X’s health and education together with the selection of schools for the children, the parties should retain shared parental responsibility of and for the children. During the trial, I advised the parties that I was considering the possibility of sole parental responsibility in light of the degree of dispute between them. However, in the circumstances I am prepared to support the views of the parties and particularly the ICL. I accept that the father has a great deal to contribute to the decision-making with respect to both children and I will give him that opportunity.
247.The consequence of an order that the mother have the sole parental responsibility for the children’s health, and particularly X’s health, will be that Dr S continues as the medical specialist with primary responsibility for X’s care. Also, as is clear from the mother’s case, the children are likely to remain at the school for the balance of their primary schooling, following which they will go to schools in the approximate vicinity of the mother's home in L. That has an obvious bearing on the issue of the time which the children should spend with each of the parents. I now turn to that issue.
Equal time, substantial and significant time or other provision as to time
248.The legislation is unclear as to whether, in circumstances in which I have determined that shared parental responsibility should be qualified, I am required to decide whether the children should spend equal or substantial and significant time with the parents. However, because the father's application seeks equal time, I now turn to a consideration of that question.
249.The father's fundamental proposal is that he and Ms R will live at V and the children will spend alternate weeks with each parent during school term, one week with them at V and the other week with the mother at L. To overcome the obvious distance factor of having to drive the children to and from the school on five consecutive days per fortnight, the father has proposed that the children attend school in or around the K area. However, having found that the mother will select the school which the children will attend, as a result of which the children will continue to attend their present school for the balance of their primary schooling, that part of the father's proposal cannot succeed. While not specifically stated, it is to be inferred from the father's proposal that he at least tacitly agrees with that proposition. On one view, it would be open to me to dismiss the father's application for equal shared time with the children on that basis alone. However, there are other factors on which equal shared time is untenable.
250.As a result of the last paragraph, travel between V and the children’s school on a regular basis is contrary to the best interests of the children. But in addition, Mr P’s evidence is very relevant. I agree with his view that all other things being equal, the distance from V would not be the determinative factor. If the parties were able to agree on the parenting of their children and part of such an agreement were that the parties would equally share the time which they spend with them, the father living at V and the mother living in L, the issue of the distance incorporated in the father living in V would not be an issue. It only becomes an issue at the point at which the relationship between the parties is as bad as it is. Accordingly and with regret, I find against the father's proposal for equal shared time.
251.I use the word "regret" at the end of the last paragraph for a reason. From the outset of this trial, I informed, at first Senior Counsel for the father and then the father himself, that were he to live closer to the mother and preferably in an adjacent suburb and retain the V property for weekends and holidays, the concept of equal shared time would be quite realistic. Despite the bad relationship between the parties, had the father recognized that such a proposal was in the best interests of the children, it may well have been possible for other issues to be resolved. I would have preferred that result to the one at which I have arrived. The father has only himself to blame for this decision although I am certain that he will not understand that.
252.I propose considering the concept of the father spending substantial and significant time with the children in the context of an overall determination of a division of the children’s time between the parents.
253.The evidence from Mr P quoted above clearly establishes that the children have a primary relationship with the mother. She will be responsible for making the most relevant long-term parental responsibility decisions and, on the basis of my also having determined that the children will not spend equal time with each of the parents, they will spend the majority of their time with the mother. On those bases, I have determined that it is in the children's best interests that I make an order that they live with the mother. Further, in the circumstances any other decision would be impractical and unworkable.
254.By way of comparison, the father’s conduct towards the children, and particularly X, impacts adversely on the best interests of them by virtue of his -
·inability to promote the relationship between the children and the mother;
·past and continued alienation of health and education professionals;
·failure, whether deliberate or otherwise, to make greater financial contribution to the up-bringing of the children; and
·his inability to compromise on his own beliefs and actions and to acknowledge their harmful consequences.
255.The mother is better able to promote the children’s best interests because she has a better attitude to the father, although not beyond criticism. She is more open to and supportive of health and education professionals and has the primary bond with the children and particularly X
256.I now turn to the vexed question of the amount of time which the children should spend with the father and in what circumstances. During the father's cross-examination of Mr P, Mr P swore:
I really honestly believe - and again, I know you'll disagree with me and I don't want to have a fight with you - I really think that five continuous nights and some time in the other week would be a really fabulous outcome for the kids because it means that they are with you for a continuous period of time. They are predominantly in one place for most of the time. They are spared having to do all the driving. I just think intuitively and developmentally and in a futuristic sense, it makes a lot of sense to do that. It is a compromise that gives everybody a bit. It means that the children still get to enjoy the benefit of living with their father in [V], but it doesn't make it so onerous that it impacts every day at school. I think it's going to be hard for the kids. (emphasis added)
257.The concept of the children spending nine nights with the mother and five nights with the father together with a further night with the father in the other week on a fortnightly cycle is not the mother's proposal for determination of this matter, particularly given that the father's proposal is to remain living at V. The mother's original proposal, exhibit “M20”, was put in two alternatives, dependent on whether the father remained living at V or lived within a 15 km radius of the children's school. As previously found, the father will continue to live at V. In that event, the mother's proposal was originally for five nights per fortnight together with one other evening in the other week. The five nights were to commence at the conclusion of school on Thursday and conclude at the commencement of school on Tuesday. However, at the end of the trial this was amended to commence at the conclusion of school on Friday, thereby reducing the time to four nights in the second week together with one evening on the alternate Monday from the conclusion of school or 3:30pm to 6:30pm.
258.The proposal of the ICL was for the children to spend time with the father at V from the conclusion of school on Friday until Sunday evening, to be extended to Monday at 6:00pm if the Monday is a non school day, and from the conclusion of school until 6:00pm each Wednesday.
In an exchange between myself and Mr P, he swore:
HIS HONOUR: From the children's perspective, if you had the mother's proposal during term time, essentially 10/4 or 9/5 - - -?---Yes.
- - - depending on - and half and half in the school holidays - - -?---It's going to be a good outcome for them.
- - - with birthdays, Fathers Day, Mothers Day, all those sort - Christmas -shared, or alternate Easter shared or alternate - if they're going to have 10 days during a three-week holiday or one week during a school holiday - - -? ---Makes no difference.
Yes?---Makes no difference.
259.The ultimate issue here is the question of the driving time on school days. In that regard, Ms N swore:
I don't think it would be ideal for [X] to spend an hour each way driving to and from school.
I agree with that view. In fact, it is common ground that it would be in excess of an hour each way. Mr P expressed similar views.
260.Ultimately, the remedy is in the father's hands. If he is prepared to spend nights prior to the children having to go to school at his K property, he will have more time with them. If he insists on staying at V, he will have less time. Accordingly, I will order that the basic time which he will spend with the children will be every second weekend from Friday after school until Sunday evening. However, that will be extended to either Monday morning or Tuesday morning at the commencement of school in the event that he is prepared to spend the respective Sunday and Monday nights prior to those days at his K property. He will be required to give the mother 7 days notice in writing of his intention to avail himself of that extra time.
261.The father proposed that in the event that at times that the mother is in employment she was unable to look after the children after school, that he should be entitled to do so. I decline that proposal. I do not accept the underlying presumption contained in it that parental care is necessarily better than other after-school care in the absence of evidence to the contrary pertaining to the particular children.
262.The parties are essentially agreed on holiday time together with Mothers' and Fathers' Days, the parents' and children's birthdays and like times. No submission was made to the contrary. I will order accordingly.
I certify that the preceding two-hundred and sixty-two (262) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin.
Associate:
Date: 15 April 2009
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